PN1

THE COMMISSIONER: Thank you.

PN2

Good afternoon, parties, Commissioner Johns speaking. Ms Douglas, you're representing the AWU? You're on mute.

PN3

MS E DOUGLAS: My apologies. Thank you, Commissioner, I am.

PN4

THE COMMISSIONER: Very good.

PN5

And then, Ms Pole, I think you're representing the company in the matter.

PN6

MS B POLE: Yes, that's correct.

PN7

THE COMMISSIONER: I can see you now, thank you.

PN8

Thank you for filing materials in the matter. I've had an opportunity to briefly read them. I don't need any opening submissions, I've read the submissions of the parties.

PN9

Who are we going to hear from first, Ms Douglas?

PN10

MS DOUGLAS: Commissioner, the applicant calls Mr Bradley Gandy.

PN11

THE COMMISSIONER: Thank you.

PN12

Mr Gandy can be admitted.

PN13

THE ASSOCIATE: Commissioner, confirming we have Mr Gandy on the line.

PN14

THE COMMISSIONER: Thank you.

PN15

Mr Gandy, it's Commissioner Johns here, can you hear and see me?

PN16

MR GANDY: I can, thank you. Good morning.

PN17

THE COMMISSIONER: Yes, good afternoon, from my end of the country.

PN18

MR GANDY: Good afternoon.

PN19

THE COMMISSIONER: Can I administer the affirmation to you.

<BRADLEY GANDY, AFFIRMED [2.19 PM]

EXAMINATION-IN-CHIEF BY THE COMMISSIONER [2.19 PM]

PN20

THE COMMISSIONER: All right, thank you.

PN21

Do you have a copy of your witness statement there?‑‑‑I do, let me just bring it up on my other screen. Yes, I do.

PN22

Thank you.

PN23

First, Ms Douglas, Ms Pole, my associate's prepared a court book, a digital court book, of all the documents which have been filed, I anticipate that's been provided to you. It's my intention to mark as exhibits in the proceedings each of the documents, as they appear behind the tabs in the digital court book. So for example, exhibit 1 will be the Form F2 application and exhibit 3 will be the witness statement of Mr Gandy.

PN24

So if you have your witness statement there, it's page 17 of the court book. Are there any amendments you'd like to make to the statement, Mr Gandy?‑‑‑No, I don't.

PN25

All right. Are its contents true and correct?‑‑‑They are.

PN26

And will you have me receive it as your evidence in these proceedings?‑‑‑I do.

PN27

Yes. All right. Can you turn to page - sorry, paragraph 26?‑‑‑Yes.

PN28

And you say:

*** BRADLEY GANDY XN THE COMMISSIONER

PN29

'Between lunch and afternoon tea, I asked, 'What loadings are paid on leave?' Michael Spencer said something to the effect of 'None, it's all wrapped up in one amount'.'

PN30

Just from my perspective, I'm struggling to see how that's a claim. You're just asking a question about how loadings are done, and he said this, you say, 'Well, I don't think your rates are high enough'. It just doesn't look - I mean, in my experience of enterprise bargaining, it doesn't look like a proposal for there to be loadings on leave, or - I don't understand what your claim was?‑‑‑Sure. The actual negotiations themselves were unusual, so it was a lot more around conversations than actual going through itemised log of claims, back and forth. I was a little bit late to the proceedings, so I wanted to double-check what the loadings were, if there had been a discussion around them, Michael quite rightly responded back, 'They were all wrapped up in the one amount'. A further conversation was had that, 'I find that strange, most companies now have loadings back into the system'. 'That would be something that I would expect we'd be asking for, along with, I think, pay rises', but that conversation came a bit later. So it was more just in conversation than an actual item of claim, formally going back and forth, there wasn't that procedure when I walked into the room.

PN31

But the AWA, as I understand, was put on notice about this bargaining commencing on 2 February. This meeting's on 17 February. Why haven't you put a formal claim on the company at any stage?‑‑‑Well, again, when I became involved, you would normally expect, I guess, both parties to exchange claims, and then to work through those.

PN32

Well, I'd expect the Union to send a letter to the employer saying, 'You've commenced bargaining, this is what we want'. That would be your usual practice at the AWU, wouldn't it?‑‑‑No, that's incorrect.

PN33

Really?‑‑‑Absolutely not. No, not at all. We sit down with the company. In bargaining, we often, at the beginning, work out maybe some guidelines or rules about bargaining, what expectations both companies, or both parties, have of each other before we send off any particular log of claims at all. We normally exchange those log of claims on that day or the following day, when we've bargained with BHP, Rio, Alcoa, you name it, and then you work through those log of claims, again, seeking to understand what each other wants. In my 22 years of bargaining, I've never sent any letter to a company, before bargaining, with a log of claims.

PN34

But you didn't even rock up to the meetings with a log of claims ready to exchange?‑‑‑When I turned up to the second day, I wasn't going to prejudge, or wanting to pre-think what had happened on that day 1 or day 2, other than me turning up and experiencing for myself.

*** BRADLEY GANDY XN THE COMMISSIONER

PN35

All right. And if you just wait there, Ms Pole might have some questions for you?‑‑‑Sure.

CROSS-EXAMINATION BY MS POLE [2.24 PM]

PN36

MS POLE: Yes, thank you, Commissioner.

PN37

Mr Gandy, I wonder if you can please - I'm going to take you to Mr Spencer's witness statement.

PN38

Just let me find, in the book, the court book ‑ ‑ ‑

PN39

THE COMMISSIONER: Page 58 of the court book.

PN40

MS POLE: Thank you. There's a particular attachment that I would like to take Mr Gandy to, which is attachment MS2, and I think that's on page 68 of the court book?

PN41

THE COMMISSIONER: Sixty-seven. I have that, thank you.

PN42

MS POLE: Yes.

PN43

So if I can just take you, Mr Gandy, to page 68?‑‑‑Sure, I ‑ ‑ ‑

PN44

Which is part of that email chain. And there's an email there dated 2 February, from Michael Spencer to Catherine O'Keefe, and you are cc'd, can you see that email?‑‑‑Sure. I'm working remotely. I'll try to bring it up on my other computer, but I'm happy to, broadly, address it now, if you want to while I'm finding it.

PN45

Certainly. So sorry, just to clarify, you don't have a copy of that in front of you, but you're aware of the document I'm speaking of?‑‑‑Yes, I've got digital copies, and I'm conscious of everyone's time, so I'm happy to talk to it, yes.

PN46

Thank you. So what I just want to check is that on 2 February 2022 you were copied into an email from Mike Spencer to Cate O'Keefe, or Catherine O'Keefe, confirming that:

*** BRADLEY GANDY XXN MS POLE

PN47

The intention was to hold EBA discussions from 15 to 18 February.

PN48

?‑‑‑Yes, that's correct.

PN49

Thank you. I also would like to just take you to paragraph 33 of your statement?‑‑‑Sure. Yes, I have it here.

PN50

Thank you. I put it to you that you never said:

PN51

Let me be clear that I'm making a claim on behalf of our members.

PN52

How do you respond to that?‑‑‑Crystal clear. Again, I've been negotiating EBAs for quite some time, I know when we need to make things crystal clear to the company about what claims are, and what conversations are, and absolutely, I made it crystal clear to everyone in the room, the company, that this was a formal claim.

PN53

I'd now like to take you to paragraphs 34, 35 and 36 of your statement?‑‑‑Yes, I have that in front of me.

PN54

Thank you. Your evidence is that Graham Ovens, from the respondent, responded to a request about pay rises and said something to the effect of, 'It's not something we would entertain'. I would like to put it to you that Mr Spencer, from the respondent, also spoke to your request about putting in a floor of minimum pay increases, and said words to the effect that, 'I have found as soon as you put a fixed figure in the Agreement, finance or other people use this figure as a maximum that has been agreed'. Can you respond to that statement?‑‑‑Sorry, I apologise. Can you just repeat that last comment that you were referring to with regards to Michael? Sorry.

PN55

Yes. So your statement doesn't make mention of Mr Spencer saying anything other than:

PN56

We have a good reputation for paying pay rises each year.

PN57

And I would like to put it to you that, actually, Mr Spencer also said to you words to the effect of, 'I have found as soon as you put a fixed figure in an agreement, finance/or other people use this figure as a maximum that has been agreed'?‑‑‑Sure. I - there were a number of conversations and people talking at the same time. I don't recall Michael saying that to me.

*** BRADLEY GANDY XXN MS POLE

PN58

Thank you. Do you recall Mr Spencer saying anything about finance, the finance team, having an issue with minimum pay increases in an enterprise agreement, or that causing you problems?‑‑‑Sure. Mr Spencer, and sorry if I should refer to Michael as Mr Spencer, Mr Spencer spoke about an issue for finance and payroll processing regular pay rises, and the fact that they were already having an issue with the delay, potentially, through bargaining and processing, maybe the next one coming. Yes, he spoke about payroll having - and finance taking - that would be more time, or effort, placed on them, but I wouldn't really want to comment on that, that's a regular payroll and finance sort of operation.

PN59

And he also spoke about the gold price ‑ ‑ ‑

PN60

THE COMMISSIONER: Sorry.

PN61

MS POLE: Sorry, Commissioner.

PN62

THE COMMISSIONER: Yes, sorry.

PN63

Mr Gandy, I just want to be very clear. It's been put to you that words were said to the effect of, by Mr Spencer, he said words to the effect, 'I have found as soon as you put a fixed figure in an agreement, finance/other people use this figure as a maximum that has to be agreed'. When that was put to you just now, you said you don't recall it being said to you. Just to be fair to you, that is going to be the evidence of Mr Spencer, he asserts positively that he said it. For you to say you don't recall, that is not you denying him saying it?‑‑‑No. In the context of the room, Mr Spencer's standing, you know, 8 metres away from me, we're in a biggish room, people were having a conversation, I don't recall Mr Spencer saying that to me, but there were conversations that people were throwing into the mix about why a pay rise should happen, or why a floor, or a safety net, was needed or not needed. So yes, he could have said that, but I didn't have that corrected for him to me.

PN64

All right. Thank you?‑‑‑Thank you.

PN65

Sorry, to interrupt, Ms Pole.

PN66

MS POLE: Thank you.

*** BRADLEY GANDY XXN MS POLE

PN67

I also just wanted to put to you, Mr Gandy, that Mr Spencer made a reference to the gold price as well, and said something to the effect of, 'Needing to keep flexibility and therefore, not include minimum pay increases in the Agreement'. Do you have any recollection of such a comment being made?‑‑‑We spoke, certainly, about flexibility and conversations around that. Not at all can I recall, or I don't believe, a comment was actually made on the gold price.

PN68

You've said now that there was discussions about flexibility?‑‑‑Yes.

PN69

I can't see a reference to that in your statement here, in paragraphs 34 to 37?‑‑‑Sure.

PN70

Are you saying that is a conversation that occurred, but it is not included in your statement?‑‑‑In the context of negotiations, there wasn't really one - well, not at all times, there wasn't one person speaking always, so there were conversations that are a bunch of bargaining reps and employees and company reps to the left of me, we're having, and to the right. And people were talking about the benefits of having a floor and the safety net would provide flexibility both ways but again, that was more just in conversations that a number of people were having about the pros and cons, I guess, of having a floor or a safety net.

PN71

Thank you. I also just want to confirm that you didn't put any written claims at all to Mr Spencer or anyone else from the respondent, is that correct?‑‑‑I didn't, no.

PN72

Thank you. Mr Gandy, did ‑ ‑ ‑

PN73

THE COMMISSIONER: Sorry, sorry.

PN74

Mr Gandy, well, that means the AWU did, I mean, if there was, as the secretary, you would authorise those, or a management committee would, or something?‑‑‑Yes, sure. I don't intend to be funny about it. I didn't put any claims. We would sign off on them, I believe Cate put a number of verbal claims. I guess, with all due respect to all parties, when I arrived, there were a number of bargaining reps on and off the phone, receiving feedback from employees because they told me they'd only received little notice of bargaining, and I said, 'Do we have anything in writing?', and people said, 'No, we're just talking to people, back and forth, over the phone', and that was, again, an unusual process for me to be in. So I hadn't - there was no items from the company that I saw in writing that I would talk about delivering back, or countering offer, other than a whole bunch of policies that we went through that was in writing.

PN75

Yes. It's said by the company that:

*** BRADLEY GANDY XXN MS POLE

PN76

All employees covered by the proposed Agreement were given access to a portal which contained a copy of the new draft Agreement.

PN77

And that was provided on 8 February. Are you aware of that?‑‑‑I'm not aware of those details. No, I wasn't aware that a draft copy of the proposed agreement was provided to all employees via a portal. I was aware there was a draft copy floating around at the bargaining (indistinct), so I believe we were working from, as a starting point. But could have happened, I just wasn't aware that all employees were provided with that.

PN78

But none of your members then reported that to you?‑‑‑The members we've spoken to, and I've personally spoken to some, clearly not all, no one had brought that up with me since, or prior, that there was a draft copy that they had access to.

PN79

Thank you. Ms Pole?

PN80

MR POLE: Thank you, Commissioner. Just one further question.

PN81

Mr Gandy, I just wanted to confirm, you didn't take notes during the meetings?‑‑‑Good question. Not formal notes. I wasn't, to be honest, wasn't sure how long I was going to be there for. Really, I wanted to assist in the process, Kate, when I arrived, and Craig, and already pretty detailed notes. It was just me really observing the process and seeing if I could assist, with regards to working through some remedy or resolution. Lots of other people were taking notes. I guess sometimes, again, going back to normal practice, you would have minutes to work through, maybe, from the previous days, that would be circulated. I did ask Kate if there was a copy of those that I could see and she no, there was none that had been circulated.

PN82

Did you request - - -

PN83

THE COMMISSIONER: Sorry, to interrupt. Mr Gandy, I need to be very clear on your evidence. You were asked, 'Did you take notes?', Your answer was, 'I didn't take any formal notes'. I don't really know what that answer is. I don't know whether that means you took some notes, or you didn't take any notes?‑‑‑No, I - well, other than - Commissioner, other than making notes that you might make on you phone, under notes, with all due respect, on your phone, or comments that people had said. Certainly people's statements I had written down certain quotes that people would say that I can talk to when the next opportunity, in that meeting, arose, but I didn't take notes.

*** BRADLEY GANDY XXN MS POLE

PN84

Where are the notes that you took?‑‑‑It could be as simple, Commissioner, as me texting myself - - -

PN85

I don't want a hypothetical 'It could be', the question is very specific. You were there on a particular day, you were in a meeting, did you take notes, yes or no?‑‑‑No.

PN86

Why was it so difficult to get that answer?‑‑‑It wasn't my intention to be difficulty, Commissioner.

PN87

No. Because I don't know what, 'I didn't take formal notes' means?‑‑‑I can expand if you would like.

PN88

Yes?‑‑‑Sure. So often, when I am in - - -

PN89

No, no, I don't want to know about your usual practice, I want to know about what you did during this meeting. You were asked about this meeting and you said, 'In this meeting I didn't take formal notes', and I want to understand what that means, in relation to this meeting?‑‑‑Sure. In this meeting, in bargaining meetings, sometimes you take formal notes that you're going to send to an employer, which might be on an email form, and you send it off in bargaining. Other times - - -

PN90

I'm not talking about what you might or may not do, in normal bargaining, all I'm talking about was what happened on 17 February, and you say, 'On 17 February I didn't take formal notes', does that mean you took no notes?‑‑‑With the technology we have, sometimes you make notes to yourself that you can - - -

PN91

Did you make notes to yourself - - -?‑‑‑No.

PN92

- - - during the meeting on the 17th?‑‑‑No, no formal notes.

PN93

Well, stop using the cute word 'formal notes', did you take any notes, formal, informal, on the 17th?‑‑‑My answer would be no.

PN94

So nothing in your notes section on your phone, dot points on your phone?‑‑‑Not that I would refer to, no. No.

PN95

No, no, I'm not asking whether you referred to them, I'm asking you, did you?‑‑‑Sure. My answer is - - -

*** BRADLEY GANDY XXN MS POLE

PN96

Did you take notes on the 17th, yes or no?‑‑‑My answer is no, unless I go through my phone now and look to see if I did that, I make notes all the time about lots of things but, as I recall, no. There were enough people in the room taking notes, including our lawyer and including our organiser.

PN97

All right.

PN98

Ms Pole?

PN99

MR POLE: Mr Gandy, my final question, you mentioned you asked Kate if there were minutes, did you ever seek minutes from anyone from the respondent?‑‑‑Not from the company, no.

PN100

Thank you. I have no further questions for this witness.

PN101

THE COMMISSIONER: Yes. Ms Douglas, anything arising in re-examination?

PN102

MS DOUGLAS: No, thank you, Commissioner.

PN103

THE COMMISSIONER: Thank you. Mr Gandy, thank you for your attendance here today, you're now excused as a witness.

<THE WITNESS WITHDREW [2.38 PM]

PN104

THE COMMISSIONER: Ms Douglas, who do we hear from next?

PN105

MS DOUGLAS: The applicant calls Mr Craig Dunne as the second witness.

PN106

THE COMMISSIONER: Thank you. Page 26 of the court book.

PN107

THE ASSOCIATE: Commissioner, we have Mr Dunne on the line.

PN108

THE COMMISSIONER: Thank you.

PN109

Mr Dunne, it's Commissioner Johns, can you hear and see me?

*** BRADLEY GANDY XXN MS POLE

PN110

MR DUNNE: Yes, I can, Commissioner.

PN111

THE COMMISSIONER: Very good.

<CRAIG DUNNE, AFFIRMED [2.38 PM]

EXAMINATION-IN-CHIEF BY THE COMMISSIONER [2.38 PM]

PN112

THE COMMISSIONER: Do you have a copy of your witness statement there with you?‑‑‑I do in front of me now.

PN113

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

PN114

Are its contents true and correct?‑‑‑To the best of my knowledge, yes.

PN115

Would you have me receive it as your evidence in these proceedings?‑‑‑Yes.

PN116

It's exhibit 26 in the proceeding.

EXHIBIT #26 WITNESS STATEMENT OF CRAIG DUNNE

PN117

THE COMMISSIONER: In your witness statement you give some evidence about attendance at bargaining meetings, do you recall that?‑‑‑Yes, I do.

PN118

Did you take any notes during the course of those meetings?‑‑‑Yes, I did take some kind of scribbled notes.

PN119

Where are they?‑‑‑I don't have a copy of them in front of me at the moment, all of the information is reflected in the witness statement.

PN120

I call for the notes.

PN121

Ms Douglas, you'll arrange for Mr Dunne to provide you with his notes and you will provide them to me and to Ms Pole.

PN122

MS DOUGLAS: Yes, Commissioner. Would you like them - - -

*** CRAIG DUNNE XN THE COMMISSIONER

PN123

THE COMMISSIONER: We will take a short adjournment of five minutes for that to be done now.

PN124

MS DOUGLAS: Yes, Commissioner.

PN125

THE COMMISSIONER: Thank you.

<THE WITNESS WITHDREW [2.39 PM]

SHORT ADJOURNMENT [2.39 PM]

RESUMED [2.54 PM]

<CRAIG DUNNE, RECALLED [2.54 PM]

EXAMINATION-IN-CHIEF BY THE COMMISSIONER, CONTINUING [2.54 PM]

PN126

THE COMMISSIONER: Thank you. Is Ms Douglas with us?

PN127

MS DOUGLAS: Yes, I am, sir.

PN128

THE COMMISSIONER: Mr Dunne, I thank you for providing those notes, what I propose to do, subject to anything that Ms Pole might want to say, is mark them as exhibit 23 in the proceeding.

PN129

MR POLE: Thank you, Commissioner, I have nothing to add to that.

PN130

THE COMMISSIONER: Thank you.

EXHIBIT #23 CRAIG DUNNE'S NOTES OF MEETING

PN131

THE COMMISSIONER: If you just wait there, Mr Dunne, Ms Pole might have some questions for you?‑‑‑Thank you, Commissioner.

CROSS-EXAMINATION BY MS POLE [2.55 PM]

PN132

MR POLE: Mr Dunne, can I take you to paragraph 19 of your statement, please?‑‑‑Yes, paragraph 19. Yes.

*** CRAIG DUNNE XN THE COMMISSIONER

*** CRAIG DUNNE XXN MS POLE

PN133

So your evidence here is that there was some discussion about the timeline and any potential delay to the vote also delaying wage rises as well. I'd like to put to you that, in addition to this, Mr Spencer also said something to the effect that the time allocated for discussions could be extended for as long as people needed, do you have any comment on that?‑‑‑I have no recollection of Mr Spencer saying that, at that timeline.

PN134

Thank you. Do you have a recollection of Mr Spencer saying something to the effect that the discussion could continue into the following week, if required?‑‑‑There may have been brief comments about that, from Mr Spencer, on the Friday afternoon, in that final portion, but I don't - if we're still dealing with paragraph 19, nothing on that Thursday. That was very much within the context of the proposed - of the potential impact and consequence that it would have on wage rises, at that point on the Friday afternoon, but certainly not on the Thursday.

PN135

Can you take to where, in your statement, it says, on the Friday afternoon, the Mr Spencer said words to the effect that the bargaining could continue into the next week, if required?

PN136

MS DOUGLAS: Commissioner - - -

PN137

THE WITNESS: There's no specific reference in there
from - - -

PN138

THE COMMISSIONER: Sorry, Mr Dunne, it might be that Ms Douglas has some objection.

PN139

MS DOUGLAS: No, sorry, sir, I was going to make a comment that might be helpful. Mr Dunne's already identified what I was going to say.

PN140

THE COMMISSIONER: All right, thank you.

PN141

THE WITNESS: Sorry, there's no particular reference to it, but it would have occurred, approximately, within the vicinity of - within the vicinity of paragraph 62.

PN142

MR POLE: Okay, thank you. I'm now going to take you to paragraph 25 of your statement, apologies for making you flick backwards?‑‑‑No, that's okay.

*** CRAIG DUNNE XXN MS POLE

PN143

Then I also just, for everyone's sake, I need to go - I'd like to take Mr Dunne through some of the statements in Catherine O'Keeffe's witness statement, so Catherine O'Keeffe's witness statement is in the bundle, at page 22.

PN144

So, Mr Dunne, in your statement, looking at paragraphs 25 to 28, you're talking about, here, a claim that you raised, which was to add the AWU as a party to the agreement. You say, at paragraph 27, that neither Mr Spencer nor any other employee bargaining representative provided any response to your claim to have the AWU joined as a party. So is it your evidence that that was met with silence?‑‑‑Yes, at that point in time there was no response received.

PN145

Okay. Ms O'Keeffe - - -

PN146

THE COMMISSIONER: Sorry, Mr Dunne, I need to be careful about that evidence. You said, 'At that point in time no response was received', does that mean there has been a response received since?‑‑‑So my understanding is that in the bundle of enterprise agreement documents for review, that was marked up for changes, that a bit later on, at paragraph - so it was in the period of the after bargaining meetings, so subsequent to the conclusion of those meetings, that the AWU, as a party to the agreement, there were words to that effect within the enterprise agreement proposal, at that point in time, but I had never received a response when I raised that claim.

PN147

So you didn't receive an immediate response. When did you receive a copy of the agreement which had the change?‑‑‑That would have been on Monday the 21st, yes around about that, that 8 pm email that is part of the annexure, annexure CD1.

PN148

So you don't complain about that, do you, you don't - I mean you didn't receive a response at the time, but you ultimately received a response and it was a positive one?‑‑‑Yes, that's right, to that point.

PN149

All right, thank you.

PN150

Ms Pole?

PN151

MS POLE: Thank you.

*** CRAIG DUNNE XXN MS POLE

PN152

Mr Dunne, I put it to you that Mr Spencer also responded, verbally, in the meeting as well, and confirmed that he would check with the lawyers, do you recall that?‑‑‑The only reference I recall him making a reference to checking with lawyers is what I've reflected within that statement. So, specifically, with relation to the AWU as being a party to the enterprise agreement, no I don't recall - recall that at all.

PN153

Okay. In respect of the second matter that you mention here, which is your redundancy clause amendment, you say, in paragraph 31, that in respect of your request to have an additional weeks notice paid out to employees over the age of 45, neither Mr Spencer nor any other employee bargaining representative provided any response to your claim. I would put it to you that Mr Spencer did respond, verbally, in the meeting and said words to the effect that the enterprise agreement already included additional notice for redundant employees, which was over and above the national employment standards. It was eight weeks for some employees and 12 weeks for others. Do you agree with that?‑‑‑I'm aware that that's a feature of the current 2018 enterprise agreement, but not that that statement was presented at that meeting.

PN154

So, just to clarify, your evidence is - you maintain that your evidence is that no response was given, at all, when you mentioned the request to have additional notice paid, where an employee was redundant, and that that was met with silence?‑‑‑Yes, that's correct.

PN155

THE COMMISSIONER: So were you aware of the terms of the enterprise agreement which made that claim, if I can use the phrase, redundant?‑‑‑I'm - that morning, obviously, as I was reviewing and reading through that particular - through the enterprise agreement, I'm aware that there were, I suppose you could call it, more generous entitlements. But I don't think that would necessarily make that claim redundant because, like I said, it's a common feature.

PN156

If the agreement, I'm looking at the agreement now, if the agreement provides for a more beneficial entitlement, what's the utility in your claim?‑‑‑Well, I suppose the utility in the claim is we're always seeking to further improve on the entitlements for our member.

PN157

I understand that, but how does that claim improve when there's already a superior entitlement in the agreement?‑‑‑Well, that would be a superior entitlement against - obviously against the award. We would always be seeking to improve on previous enterprise agreements as well. So I think that really was part of our motivation behind that claim is to obviously seek to continually improve - improve those entitlements, whether it was a meritorious claim or not, I think that's obviously a matter for discussion at bargaining, but that was certainly our - my intention, by raising that claim.

PN158

I just can't understand how there's any utility in it. Anyway, Ms Pole?

*** CRAIG DUNNE XXN MS POLE

PN159

MS POLE: Thank you.

PN160

Mr Dunne, taking you then to your next item, which is the dispute resolution clause amendment, you say that you raised a request to have the requirement for consent arbitration changed and Mr Spencer responded with words to the effect that, 'Well no lawyer would ever agree to that'. I would like to put it to you that Mr Spencer also invited you to provide some proposed wording, if you felt a wording change was required, do you have a response?‑‑‑To the dispute resolution clause?

PN161

Yes. So what I'm putting to you is, when you raised that you felt there should be a change to the wording in the dispute resolution clause to allow for arbitration that Mr Spencer invited you to provide some proposed wording?‑‑‑My claim and when I presented the claim across, was simply to the effect of removing the consent element. It didn't require any redrafting, other than the deletion of that particular wording.

PN162

THE COMMISSIONER: That's not what you're being asked. You're being asked whether or not he said to you words to the effect, Well, why don't you come up with some draft wording?'. You might have heard that and thought, 'It's not necessary, all you need to do is remove the word 'consent''. But what's being put to you is, is that he said to you, 'Well, you come up with some draft wording', did he say that to you?‑‑‑He may have made those sorts of comments. I'm trying to recall, because I also want to make sure that I'm being exactly accurate for - - -

PN163

If you look at your notes, it's at exhibit 23, and you look at the second last page, it says there, 'Propose alternative wording'. So presumably he did say it to you?‑‑‑So that note there is in reference to the consultation amendment, regarding the amendment of the consultation clause, to include reference to company policy and that being brought within that consultation period. Obviously, as I said, my notes are not the neatest or kind of well set out, but that's what that's in reference to, is in that consultation clause component which was claim 4 we proposed.

PN164

All right, thank you.

PN165

Ms Pole?

*** CRAIG DUNNE XXN MS POLE

PN166

MS POLE: So, Mr Dunne, just to clarify you evidence, is that Mr Spencer may have said to you you could provide some proposed wording, but you don't recall?‑‑‑I don't recall - yes, I don't recall that specific language being used. Maybe I'm running that together with the consultation clause component, but I don't recall the specific words. In any case, once I presented that claim I obviously noted that it would merely the deletion of the work consultation. Sorry, consent, not consultation.

PN167

THE COMMISSIONER: (Indistinct)?‑‑‑Yes.

PN168

MS POLE: So your evidence is that you proposed that, verbally, in the meeting?‑‑‑Yes. Yes.

PN169

Did you provide any written suggested wording?‑‑‑No, I didn't provide any wording.

PN170

Thank you. Moving on them to the consultation clause, your evidence here is that Mr Ovens responded to your request to have consultation about changes to policy. Your evidence is that Mr Ovens responded and immediately effectively denied that request and said the respondent would never accept that arrangement and that you were taken aback by that. There's no reference anywhere, in paragraphs 39, 40 or 41, to anybody suggesting that you provide some proposed wording, is there? I can't see one?‑‑‑Not reflected within that witness statement that I can - let me just review that. No, not within those paragraphs. But perhaps to clarify, because obviously it's reflected in my notes as well, perhaps add that that is a comment that was made by Mr Spencer, at that particular point in time. Because, at that point in time, with that response and that kind of immediate, it was the immediacy of the response that kind of obviously took me aback a little bit, with just the - yes, the abruptness of the rejection. Yes, followed by the - we only ever make policy changes to benefit our employees, we never change or it goes backwards. I mean it seems pretty, for me personally, both absurd and a pretty immediate response. It was - - -

PN171

Sorry, I need to stop you there, because I'm not seeking your observations on what is fair policy. What I'd like to do is take you to the notes that the Commissioner has already taken you to, and on the fourth page of the notes, in the middle, there is the wording, 'Proposed alternative wording', there's then an arrow and it says, 'Consultation, proposed wording'. Do you agree that in the meeting you were invited, as per your notes suggest, that you could provide some proposed wording in respect to the change to the consultation clause?‑‑‑Yes, I can accept that, yes.

PN172

Do you agree that that is not in your current witness statement that is filed here in the Fair Work Commission today?‑‑‑Yes, I can agree to that.

*** CRAIG DUNNE XXN MS POLE

PN173

Do you also agree that, notwithstanding your comment that you were taken aback by the abruptness of Mr Ovens' alleged response, you still had time to take a note, here on your notepad, that says, 'Consultation, proposed wording'?‑‑‑Well, yes, I suppose.

PN174

Did you provide any prosed alternative wording to the respondent at any point in time, in respect to the consultation clause?‑‑‑No, I did not.

PN175

Thank you. I'm going to move on now - - -

PN176

THE COMMISSIONER: Sorry, can I just make an observation that, Mr Dunne, for future reference, you do owe a duty of candour to the Commission and your witness statements ought to properly reflect your notes that you took. It would have been appropriate for you to, in your witness statement, have made the concession that you were, in relation to the consultation clause around policies, invited to propose wording?‑‑‑Okay, thank you, Commissioner.

PN177

MS POLE: So, Mr Dunne, I'm going to take you now to claim 5 in your witness statement, at paragraph 42, which refers to personal carer's leave?‑‑‑Yes.

PN178

At paragraph 4, sorry, my apologies, at paragraph 44, you say, in response to your claim about personal carer's leave notice, Mr Spencer responded and suggested - sorry, Mr Spencer suggested that you could provide some wording and he would seek feedback from the respondent's lawyers. So this is in respect of personal leave now?‑‑‑Yes.

PN179

I'm putting it to you that Mr Spencer also said words to the effect - or there was also, in addition to your evidence here, there was a discussion about the reasonable person test and evidence that would be accepted by a reasonable person, do you agree?‑‑‑The only recollection I have around that sort of a discussion, around reasonable person tests, are related to earlier on in the day, in a discussion of a cultural leave policy.

PN180

So you don't recall - is it your evidence that you don't recall whether Mr Spencer - whether there was a discussion about the reasonable person test, in respect of the personal carer's leave notice, or that it did not occur?‑‑‑Well, to the best of my knowledge, no it didn't, it didn't occur at all.

*** CRAIG DUNNE XXN MS POLE

PN181

Thank you. I would also put it to you that Mr Spencer said words to the effect that, in reference to referring an employee to a company doctor, that this was an exception, do you agree with that statement?‑‑‑Yes, I can agree with that statement. Like I said, there was some discussion, well not discussion, but the - the context of this particular clause, which I don't know whether it's necessarily appropriate to raise here, but this particular clause, in the current enterprise agreement, there's been some discussions between myself and Mr Spencer about how that's being used, in relation to particular matters, so there's other disputes and that, that are ongoing. So there's probably a bit of understanding between the two of us about, 'Why aren't your raising this particular claim, as it has a real impact on our members'.

PN182

So you agree that there was some discussion, at the bargaining meeting on the 17th, between yourself and Mr Spencer, about referring employees to a company doctor and that would only occur in exceptional circumstances, effectively?‑‑‑Yes. Yes, I can accept that.

PN183

Again, just referring you back to paragraph 44 of your statement, where it says - you conceded that Mr Spencer suggested you could provide some wording, in respect of this clause; you didn't provide any draft working, did you?‑‑‑No, I didn't, because the comment that I made at the time was the claim was merely a deletion again. So there was no possible alternative wording, other than just to remove that particular - yes, particular clause.

PN184

Sorry, I'm talking about the personal leave and carers' leave clause, and your claim, which you say was about withholding payment, unless an employee attended a company doctor. You've said here that Mr Spencer said you could provide some wording, and I want to confirm that you did not provide any suggested wording?‑‑‑Yes, I can confirm.

PN185

Is that correct?‑‑‑Yes, that's correct. Yes.

PN186

Thank you. Mr Dunne, I'm going to take you to paragraph 69 of your statement now, please?‑‑‑Yes. I've got it.

PN187

I'm putting it to you that when Mr Spencer outlined, on the final day of negotiations, the proposed timeframe for circulating an updated draft agreement and seeking responses, that you did not say anything about further bargaining meetings being scheduled, is that correct?‑‑‑No, that's not correct.

PN188

I'm putting it to you that, in fact, you said nothing at all, at that point in time?‑‑‑No, that's definitely not correct.

PN189

Thank you. Commissioner, I have no further questions for this witness.

PN190

THE COMMISSIONER: Thank you.

*** CRAIG DUNNE XXN MS POLE

PN191

Ms Douglas, anything arising in re-examination?

PN192

MS DOUGLAS: No, thank you, Commissioner.

PN193

THE COMMISSIONER: Thank you.

PN194

Mr Dunne, can I thank you for your attendance here today, you're now excused.

<THE WITNESS WITHDREW [3.17 PM]

PN195

THE COMMISSIONER: Ms Douglas?

PN196

MS DOUGLAS: Commissioner, given that we have had Mr Dunne's notes tendered as an exhibit and Ms O'Keeffe has notes that she prepared during bargaining, as we heard from Mr Gandy, I propose to arrange to send those to yourself and Ms Pole as well, if that's suitable.

PN197

THE COMMISSIONER: Yes. Can that be done now? Could we have a short adjournment for that to be done now?

PN198

MS DOUGLAS: Yes, I believe so. I'm just going to check the document that's been prepared is suitable for me to send through to you.

PN199

THE COMMISSIONER: All right. Why don't we have an adjournment until 3.25, and if you could have those documents scanned and emailed to me and Ms Pole before then, then we'll come back at 3.25.

PN200

MS DOUGLAS: Thank you, Commissioner.

PN201

MS POLE: Thank you.

PN202

THE COMMISSIONER: Thank you. Sorry, 3.25 my time.

SHORT ADJOURNMENT [3.19 PM]

RESUMED [3.40 PM]

*** CRAIG DUNNE XXN MS POLE

PN203

THE COMMISSIONER: Thank you for sending through those notes. I will mark the O'Keeffe notes as exhibit 24.

EXHIBIT #24 NOTES OF CATHERINE O'KEEFFE

PN204

THE COMMISSIONER: Let's admit Ms O'Keefe.

PN205

MS DOUGLAS: Commissioner, I apologise for interrupting. I don't believe we're raised it while the Commission's been in session, but I did want to flag the AWU's preference for witnesses to remain out of the hearing until they're called to give their evidence and if they were wanting to remain in the hearing at the conclusion of their evidence, for the rest of the proceedings, we would take no issue with that. But I don't believe we actually discussed it with you and I believe Mr Spencer is with Ms Pole.

PN206

THE COMMISSIONER: Yes, I understand that Mr Spencer is her instructor.

PN207

MS POLE: Mr Spencer is here as an instructor, but he's also a witness and I have alternative instructors, in the event there is an order made for witnesses out of court, so we don't object to such an order being made, if that is what Ms Douglas is seeking. I can make use of my other instructors, as needed.

PN208

THE COMMISSIONER: I so make the order.

PN209

Ms Douglas, for future reference, it's probably best to raise that a bit earlier.

PN210

MS DOUGLAS: Apologies, Commissioner, I forgot to raise it with you in the room.

PN211

THE COMMISSIONER: That's okay.

PN212

All right, Ms O'Keeffe, it's Commissioner Johns, can you hear and see me?

PN213

MS O'KEEFFE: Yes, I can, Commissioner Johns.

PN214

THE COMMISSIONER: Very good. Do you have a copy of your witness statement there with you?

PN215

MS O'KEEFFE: I do.

<CATHERINE O'KEEFFE, AFFIRMED [3.42 PM]

EXAMINATION-IN-CHIEF BY THE COMMISSIONER [3.42 PM]

PN216

THE COMMISSIONER: Your witness statement is page 22 of the court book. Are there any amendments you would like to make to the witness statement?‑‑‑No.

PN217

Are its contents true and correct?‑‑‑Yes, they are.

PN218

Would you have me receive this as your evidence in these proceedings?‑‑‑Yes, I do.

PN219

Just wait there, Ms Pole might have some questions for you.

CROSS-EXAMINATION BY MS POLE [3.43 PM]

PN220

MS POLE: Thank you.

PN221

Ms O'Keeffe, I do have questions, I'm just in the process of figuring out where to start, I apologise, I've just received your notes and I'm still looking through those, so I may need a little bit of time as I ask you some questions.

PN222

THE COMMISSIONER: Maybe I can just ask a couple of preliminary ones.

PN223

MS POLE: Yes.

PN224

THE COMMISSIONER: Ms O'Keeffe, it's right, isn't it, that Mr Spencer contacted you on or about 2 February, to tell you about the proposed bargaining?‑‑‑Yes, that is correct.

PN225

He gave you notice that the dates were going to be from 15 February, something like that?‑‑‑Yes.

PN226

Are you aware that from 8 February the draft agreement was provided to employees, through the portal or the employee portal?‑‑‑No, I was not.

*** CATHERINE O'KEEFFE XN THE COMMISSIONER

*** CATHERINE O'KEEFFE XXN MS POLE

PN227

None of your members told you about that?‑‑‑No, they did not.

PN228

When did you first see a copy of the draft agreement?‑‑‑It was on the second day, when I requested for one, so I received - there was several copies handed out at the end of the second day, so that would have been the 16th.

PN229

All right. Ms Pole?

PN230

MS POLE: Thank you.

PN231

Just in respect of the portal, Ms O'Keeffe, you say, in your statement, at paragraph 10, that you didn't have access to the portal. I just want to clarify, is it the case that you tried to access the portal but were unable to, or you were unaware of the portal's existence? So that wording, 'didn't have access', does that mean that you tried to access the portal but were unable to?‑‑‑No. No, and even if I was aware of this portal, I wouldn't have been able to have access, I'm not an employee of Goldfields, so I was completely - - -

PN232

Yes, thank you. If you didn't try to access the portal, all I need to know is that you didn't try to access it. I'm not asking you to tell me what your understanding of the portal is, or how it operated, I'm just asking you to answer that question?‑‑‑Sure. No.

PN233

Thank you. I just want to take you, now, to paragraph 11 of your statement, which is the next paragraph, and you say there that the first two days of meetings was spent talking - mainly talking about company policies, like maternity leave et cetera, and you list a few things there. Do you agree that increased parental leave benefits were included in the enterprise agreement that has been put to the vote?‑‑‑Yes, there was an extra two weeks.

PN234

Okay, thank you. In paragraph 12 of your statement your evidence is that you said, 'Can we talk about CPI and pay rises tomorrow?', I would like to put it to you that when Mr Spencer responded he didn't simply respond, 'Yep, yep, we'll talk about that tomorrow', he spoke to you and responded about the need for flexibility and the impact of the gold price and changes to the gold price, if CPI increases were included in the agreement, or wording to that effect, do you agree with that?‑‑‑I can't recall that, no.

PN235

So you have no recollection of Mr Spencer saying those words to you, or words to that effect?‑‑‑No, I do not.

*** CATHERINE O'KEEFFE XXN MS POLE

PN236

Thank you. Ms O'Keeffe, again, I have only had your notes for not that long, but I just wanted to check with you, is it recorded - is that recorded in your notes anywhere? So when I look at your notes, I can see that page 33 of your notes indicates the notes were taken on the 17th, so, presumably, page 32 of your notes sets out the final discussions on the 16th, Wednesday, 16 February, I can't see reference in your notes, on that page or the preceding pages, to a request around a CPI pay rise, was that recorded in your notes, to the best of your recollection and, if so, can you point me to where?‑‑‑Yes. I suppose if I was asking the questions then I wasn't probably writing at the time, my questions. So as we've gone around the table, when it was my turn I wasn't writing notes when I was asking questions, so that may have been left out of those notes.

PN237

Okay. Can I also just take you, please, to page 24 of your notes?

PN238

THE COMMISSIONER: Is this the one beginning, at the top, 'LSL five years'?

PN239

MS POLE: Yes, thank you. Let me know when you're there, Ms O'Keeffe?‑‑‑Sure. Yes, I've got it.

PN240

So just a little part way down it's got, '18 redundancy ent', which I assume means 'entitlement'?‑‑‑Yes.

PN241

And it says, 'What about for employees over 45 years of age, any extra?'. Just to clarify, that note was taken on 16 February, before Mr Dunne joined the discussions, is that correct?‑‑‑That's right.

PN242

Do you recall or can you tell me what was said in those discussions, on the 16th, about the extra notice for somebody over 45, in the event of a redundancy?‑‑‑I think that was my own notes in regards to that, so, yes, that was a question that I was wanting to ask in the future.

PN243

So you don't recall there being a discussion about that, on the 16th, sorry?‑‑‑The first that the redundancy - I beg your pardon?

PN244

Sorry, that you don't recall there being a discussion about that, on the 16th, I should have clarified?‑‑‑No. The first time it came up, as a discussion, was on the third day, that's the 17th.

PN245

Thank you. So now I'd like to take you to paragraph 18.1 of your statement, in respect of the AWU - - -?‑‑‑I'm sorry, you - - -

*** CATHERINE O'KEEFFE XXN MS POLE

PN246

Sorry, paragraph 18.1 of your witness statement?‑‑‑Yes.

PN247

You reference the claim or the request, made by Craig, to include the AWU as a party, and you've said, 'Michael said, 'We'll look into that and get back to you''. I put it to you that Mr Spencer also made a reference to getting some drafting from a lawyer done, do you recall that?‑‑‑Yes, he was going to look into that and get back to us in regards to us being a party to this agreement.

PN248

And the AWU was subsequently added as a party to the draft agreement, weren't they?‑‑‑They were. That became apparent on the 18th.

PN249

On the 18th?‑‑‑Yes.

PN250

Ms O'Keefe, did Mr Spencer send you an email on the 17th with some proposed wording about including the AWU as a party to the agreement?‑‑‑I received that on the Monday, which would have been the 20th. I then sent all of those emails to Craig Dunne.

PN251

So you don't recall receiving an email on the 18th - sorry, the 16th. Sorry, my apologies, the 17th?‑‑‑I'm sorry I'm - yes, I'm a bit confused now. So it was the 17th did you say?

PN252

Yes, sorry. I am just putting to you Mr Spencer's evidence is that he sent you an email on the 17th with some proposed wording that would be included in the agreement adding the AWU as a party. I apologise, I don't have an email to actually show you, but I'm just putting it to you that an email was sent to you on the 17th after the bargaining meeting with some suggested wording to add the AWU as a party to the agreement?‑‑‑I can't recall what date.

PN253

Okay. Thank you. Ms O'Keefe, I'd like to take you to paragraph 18.3 of your statement?‑‑‑Yes.

PN254

So this refers to the company's discretion to direct an employee to see a company doctor, and I would put it to you that Mr Spencer invited Mr Dunne to provide some suggested wording if he wished to have a clause included in the enterprise agreement around this. Do you recall that?‑‑‑I remember it being quite - it was discussed. I can't recall if Michael Spencer said that to Craig Dunne or not.

*** CATHERINE O'KEEFFE XXN MS POLE

PN255

Thank you?‑‑‑Apparently Michael was saying that they only use that in exceptional circumstances.

PN256

You're reading from your statement there?‑‑‑No, from my notes.

PN257

Sorry, which page in your notes are you looking at?‑‑‑It has - it's got numbered - it would have been the 17th, on the 17th, and it's numbered 1 through to 5, and it's under number 3, provision SL.

PN258

Ms Douglas, are you able to point me to where that would be in the notes in terms of the electronic version. I'm struggling to find that.

PN259

MS DOUGLAS: I can if you just give me a moment to bring up the electronic version. Apologies, we haven't got page numbers in there.

PN260

THE COMMISSIONER: What does it say on the top of the page, please, Ms O'Keefe?‑‑‑Certainly. It says they have income protection 70 per cent income.

PN261

MS DOUGLAS: Okay. I believe it's page 37.

PN262

MS POLE: Thank you, I've just found it.

PN263

THE COMMISSIONER: Yes, I have that.

PN264

MS POLE: Thank you. So there on the page it says 16.4, and your notes say, 'Wording is not reflecting intentions. Remove/clarify M agreed.' Is 'M' Mr Spencer?‑‑‑It is.

PN265

And in respect of the next line it talks about redundancy term/together murky. At the end of that paragraph it says, 'Insert alternative wording.' Do you see that?‑‑‑In 18.4?

PN266

Sorry, no, under 4. In your notes you've got the number 4 and then you've got 'Redundancy term/together'?‑‑‑Yes.

PN267

And you've got the wording there at the end that says 'Alternative wording.' Do you recall what that was a reference to?‑‑‑In the EA there was alternate wording for that, so those words were not actually used as like over the age of 45, rather that in the clause itself in its entirety that it captures the age bracket as well as I think that that was extra redundancy there which is above the NES anyway. So there was no need to include age groups in there.

*** CATHERINE O'KEEFFE XXN MS POLE

PN268

And that's your recollection and what's reflected in your notes of what Mr Spencer said in that meeting?‑‑‑Well, I haven't put down anybody's name against my notes in that section under number 4 redundancy, so I believe that that was all part of a discussion. So I cannot say whether it was Michael or whether it was Craig, the discussion.

PN269

Okay. In paragraph 18.2 of your witness statement you mention that there was a discussion about the consultation clause extending to cover policy changes. In your notes, which is page 38 of the electronic copy, but it's on the next page, Ms O'Keefe, from the one I was just referring to. It starts with 'AWU',(1), and then (2) 'Consultation'. Next to that it says, 'Impracticable. Practicable to discuss, consult with employees. Not going to happen because they like to - something - for gold.' Do you recall who used the terminology 'Impracticable' or 'Practicable'?‑‑‑That would have been Michael. Michael was involved with all of the discussions.

PN270

So is it your evidence that in respect of the proposal by Mr Dunne to include in the consultation clause a requirement to consult where there was a change in policy Mr Spencer responded and said that it would be impracticable. Is that correct?‑‑‑Yes.

PN271

Thank you. Ms O'Keefe, if I can take you, please, to paragraph 25 of your statement?‑‑‑Yes.

PN272

You say there that you had no good time to call and discuss things with your members because of the way the bargaining meeting was scheduled. Ms O'Keefe, is it correct that on 16 February you attended a work function with Mr Gandy?‑‑‑That is correct.

PN273

Thank you. Ms O'Keefe, in the discussion about including pay increases in the enterprise agreement, either CPI increases or a floor of minimum increases, is it correct that Mr Spencer made reference to an issue with including a floor for pay increases in an enterprise agreement is that finance people can then use that as the maximum increase that they will look like. Do you recall that?‑‑‑No, I do not.

PN274

Do you recall the discussion about the gold price and the need for flexibility?‑‑‑Of course, yes.

*** CATHERINE O'KEEFFE XXN MS POLE

PN275

Can you expand on that, what was your recollection of that discussion?‑‑‑Well, basically in the goldfields that is the discussion on everybody's lips. We need to be flexible in these times, in unprecedented times, especially with what has been happening of late across the world, gold prices up.

PN276

Sorry, Ms O'Keefe, I just need to interrupt. Just to be clear I'm asking what you recall in terms of the actual discussion in that meeting. So you said that you recall there was a discussion in the context of talking about including pay increases in the agreement. You recall there was a discussion about gold prices and the need for flexibility. To the extent that you do recall that discussion can you recount who said what?‑‑‑There was a robust discussion, so a lot of people put their hat in the ring, so I can't tell you what any particular person, what they said, I think everyone discussed it around the room.

PN277

Do you have a recollection of Mr Spencer saying that there was a preference not to include the pay increases in the agreement because the company needed to retain flexibility?‑‑‑There was a lot of discussion around the accountability to the CEO and the shareholders.

PN278

Do you recall Mr Spencer referring to the need for flexibility when responding to a request to include pay increases in the agreement?‑‑‑The word was used, yes.

PN279

Do you recall if it was used by Mr Spencer?‑‑‑Yes.

PN280

Thank you. Commissioner, I have no further questions for this witness.

PN281

THE COMMISSIONER: Thank you. Ms Douglas, anything arising for re-examination.

PN282

MS DOUGLAS: Thank you, Commissioner.

RE-EXAMINATION BY MS DOUGLAS [3.04 PM]

PN283

I just have one question, Ms O'Keefe. You were asked about the maternity leave policy, and I believe it was your evidence you confirmed that the extra two weeks of maternity leave was included in the proposed enterprise agreement; is that right?‑‑‑Yes.

PN284

And so is it true that there were other policies that were discussed during the bargaining meeting that were not included in the proposed enterprise agreement?‑‑‑That is correct.

*** CATHERINE O'KEEFFE RXN MS DOUGLAS

PN285

There are no further questions, Commissioner, re-examination questions.

PN286

THE COMMISSIONER: Thank you. Ms O'Keefe, can I thank you for your attendance here today. You're now excused as a witness.

<THE WITNESS WITHDREW [4.04 PM]

PN287

THE COMMISSIONER: Ms Douglas, as I understand it that concludes the evidence on behalf of the Australian Workers' Union?

PN288

MS DOUGLAS: Thank you, Commissioner, it does.

PN289

THE COMMISSIONER: Thank you. Ms Pole, who are we going to hear from first? First of all do you require - Ms Douglas, do you require Mr Wilson and Ms Alston for cross-examination?

PN290

MS DOUGLAS: Yes, please, Commissioner.

PN291

THE COMMISSIONER: All right. Who are we going to hear from first, Ms Pole?

PN292

MS DOUGLAS: Commissioner, apologise, if I might request a short comfort break before we deal with the respondent's witnesses.

PN293

THE COMMISSIONER: Ms Pole, I was told by my associate that we should be expecting some notes from Mr Spencer, is that correct?

PN294

MS POLE: That's correct, yes. Yes, I will send them through now.

PN295

THE COMMISSIONER: Thank you. We will adjourn until 4.15, thank you, my time.

SHORT ADJOURNMENT [4.05 PM]

RESUMED [4.24 PM]

PN296

THE ASSOCIATE: Commissioner, we have Ms Alston on the line.

PN297

THE COMMISSIONER: Thank you.

PN298

Ms Alston, it's Commissioner Johns, can you hear and see me?

PN299

MS ALSTON: I can, thank you.

PN300

THE COMMISSIONER: Very good.

<REBECCA ALSTON, AFFIRMED [4.25 PM]

EXAMINATION-IN-CHIEF BY THE COMMISSIONER [4.25 PM]

PN301

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

PN302

Thank you. It's page 55 of the court book. Are there any amendments you'd like to make to the witness statement?‑‑‑Not at this time.

PN303

It's your only opportunity?‑‑‑No, I don't, there are no amendments.

PN304

All right Are its contents true and correct?‑‑‑Yes.

PN305

Would you have me receive it as your evidence in these proceedings?‑‑‑I would.

PN306

Thank you. It's exhibit 11 in the proceeding.

EXHIBIT #11 WITNESS STATEMENT OF REBECCA ALSTON

PN307

THE COMMISSIONER: If you wait there, Ms Douglas might have some questions for you.

CROSS-EXAMINATION BY MS DOUGLAS [4.25 PM]

PN308

MS DOUGLAS: Ms Alston, I first want to ask about paragraph 7 of your witness statement, where you refer to the dates of the bargaining meetings?‑‑‑Yes.

PN309

*** REBECCA ALSTON XN THE COMMISSIONER

*** REBECCA ALSTON XXN MS DOUGLAS

I think there might be a typo, 15th to 18th March perhaps should read 15 to 18 February?‑‑‑Yes, you would be correct. Apologies, I didn't pick that up.

PN310

Certainly. In relation to Mr Gandy's (indistinct) AWU, who attended part of one of the bargaining days, bargaining meetings, I believe he attended on the afternoon of the Thursday?‑‑‑Yes.

PN311

Do you recall Mr Gandy making comments about loadings payable on leave, employee leave?‑‑‑I do not recall comments on loadings on leave, no.

PN312

Mr Gandy's evidence was that he did ask about loadings payable on leave and questioned why those loadings were not payable? What comment do you make to that?‑‑‑Just that I do not specifically recall Mr Gandy bringing the topic of loadings on leave up.

PN313

You do, however, recall Mr Gandy asking about a flaw, or words to that effect, regarding annual salary increases?‑‑‑Yes, I do recall some conversation around that, yes.

PN314

Do you recall - Mr Gandy's evidence, rather, is that he said words to the effect - during that conversation he said words to the effect of, 'Let me be clear, I'm making a claim on behalf of our members', do you recall Mr Gandy making that comment?‑‑‑I do not specifically recall him making that comment.

PN315

Do you recall any person making a comment in those - any person, from the AWU, making a comment along those lines, that they were making a claim on behalf of members?‑‑‑I don't recall that being specifically stated, no.

PN316

In paragraph 23 of your witness statement you refer to how Mr Spencer sometimes would park something, but always come back to it, referring to claims and discussions, have you got that in front of you?‑‑‑I do.

PN317

Would it be fair to say that there were a number of claims that were discussed through the bargaining meetings?‑‑‑Yes, there were.

PN318

Is it true that you didn't take any notes about the claims that were discussed?‑‑‑That's correct, I did not.

*** REBECCA ALSTON XXN MS DOUGLAS

PN319

So is it – without notes to rely on, is it possible that some of the claims or discussions that were had may have been parked, as you said, and not come back to?‑‑‑I think it would be unlikely, because they were not parked for very long. My recollection was that that would generally occur when we were doing a round the room format of requesting information. So as part of that, if new content was raised, it might get momentarily parked and then come back to at the end of the round of the room. It wasn't often that things were parked for a length of time, in my view, with the exception of one or two big ticket items, which we went back to periodically, throughout the process.

PN320

Ms O'Keeffe, I believe it was Ms O'Keeffe's evidence, said that when she raised a query about a claim for pay rises to have the CPI or nominal percentage, that she was told, by Mr Spencer, 'We'll come back to that', is that true?‑‑‑It could be, I don't specifically recall the conversation.

PN321

Is it true that there were no minutes taken of the meetings, that you're aware of?‑‑‑I'm not aware that minutes were taken. I believe notes were taken to the effect of monitoring progress of each of the claim items.

PN322

In terms of what you say is monitoring progress of each of the claim items, did that happen up on a board, in front of the group, at the bargaining meetings?‑‑‑There were some points where items were recorded on the board, yes.

PN323

But not all items were recorded on the board?‑‑‑To my recollection, the approach taken wasn't that we would record everything on the board, but there was some points throughout the proceedings where a number of items were being raised, as a specific part of the discussion, and, as part of that, they were recorded on the board.

PN324

Would it be fair to say that of the discussions about the items and the claims for the enterprise agreement that there was no central document where each of the claims and the final resolution was recorded?‑‑‑Sorry, could you repeat the question?

PN325

Yes. In terms of the discussions about claims and changes to the enterprise agreement, would it be true that there was no central document where each of those was recorded and the final position also recorded?‑‑‑I don't - I don't recall that there was a working document, if that's what you're referring to, throughout the proceedings, that was available to everyone, but the final progress was communicated via the amendment to the agreement and policies, in draft format, for discussion along the way.

PN326

That was circulated, I believe it was the Monday evening, that that marked document, with changes to the proposed agreement, was circulated to yourself?‑‑‑Prior to that, we went through all of the changes to each of those documents, line by line, on Friday and some of the items may have been communicated on Thursday as well, in terms of the changes to wording.

*** REBECCA ALSTON XXN MS DOUGLAS

PN327

And the documents that you're referring to, they include policy documents that were separate to the proposed enterprise agreement?‑‑‑Yes, to the extent that we, as representatives, had been asked by employees to raise specific issues. Sometimes they pertained to a policy item rather than a point in the agreement, so there was sometimes discussion on those policies.

PN328

I understand that there was certain workshopping, if I can put it that way, of wording the documents, that occurred on the Friday bargaining meeting, is that right?‑‑‑On the Friday, yes, that's when we went through each of the documents, the agreement and the policy items, to, line by line, ensure that they reflected the discussions that had been had through the process.

PN329

Were you involved in the wording changes, on the Friday?‑‑‑Yes, everyone was, to the extent that it was an open discussion where we went through each item, line by line, and where people had input or suggestions around wording, it was considered at that point.

PN330

Can I ask, during the course of the four days would there have been any occasions where you would have left the room during the time that the bargaining meetings were being conducted?‑‑‑Sorry, could you repeat that?

PN331

During the four days of the bargaining meetings, and I exclude breaks for lunch and morning tea and group breaks to the discussions, but while the bargaining meetings were in session would you have left the room at any time and missed any part of the discussions that were had?‑‑‑I don't believe so. My recollection is, I was present for all of it, perhaps aside from a bathroom break.

PN332

Okay. Would you say that Michael Spencer was the person who took responsibility to control the flow of the conversations during the bargaining meetings?‑‑‑I would.

PN333

Did he actively move the conversation around the room so that different people were given a chance to talk?‑‑‑Yes.

PN334

Do you recall him saying, at any point, in response to any of the employee bargaining reps, 'Thank you for your comments', and naming then next person, 'We'll move on to you'?‑‑‑Only during the times when we were conducting a round the room pulse check or end of day response.

*** REBECCA ALSTON XXN MS DOUGLAS

PN335

I believe Ms O'Keeffe's evidence, or the AWU's evidence, at least, is that Mr Spencer did say that, on one occasion, at least one occasion, to Ms O'Keeffe, do you recall Mr Spencer saying that to - in response to one of Ms O'Keeffe's comments?‑‑‑I recall him saying it, in response to some of the round table items, but I couldn't specifically say I recalled it being said to Ms O'Keeffe.

PN336

So Mr Spencer saying something along the lines of, 'Thanks for your comments and we'll move on to the next person', was something he would have said more than once to different people?‑‑‑Yes. But if they raised something that needed further discussion he would indicate that we would come back to that discussion, as opposed to just thanking them for their comment.

PN337

Did Mr Spencer make comment, at any point, that the pay increases which were due from the March 2022 pay reviews needed to be paid by 15 March, and in order for that to happen a 'yes' vote needed to occur at the scheduled vote period?‑‑‑I remember that there was discussion that the timeframes associated with the process would be - sorry, that the salary review process was impacted by or connected to the timeline for the bargaining process. Mike had indicated to us that we may have to go overtime, as in additional days, and that the pay review had some firm dates attached to it.

PN338

And is it true that Mr Spencer said that the outcome vote needed to be 'yes' in order for the pay increases to be paid in the March pay run?‑‑‑I don't recall it being stated that the outcome needed to be a 'yes'. My recollection was just that the timing of the process would impact.

PN339

Ms Alston, in terms of the discussions that were had about the timing of the process, is it true that they happened on either first or the second day of the bargaining meetings?‑‑‑Sorry, could you just repeat the first part of that question?

PN340

In relation to the timing of the process, as you were saying about being the timing of the access period of the proposed agreement and the voting period, which is about a week, were there suggestions that - or comments made about that during the Tuesday or the Wednesdays of the bargaining meetings?‑‑‑I don't specifically recall which days, but I know that it was definitely mentioned on more than one day.

PN341

And, so, would your evidence be that you would not say that it's inaccurate that that comment was said on the Tuesday or the Wednesday?

PN342

THE COMMISSIONER: Sorry, just for my own part, Ms Douglas, you might want to reframe that question. It seemed to have, like, three double meanings in it. I'm not quite sure what's being asked.

*** REBECCA ALSTON XXN MS DOUGLAS

PN343

MS DOUGLAS: Yes, apologies, that can be clearer. Is it your evidence, Ms Alston, that it's possible that the comments about the timing and the timing of the vote, and the impact on the pay increases may have happened on the Tuesday or the Wednesday of the bargaining meetings?‑‑‑I don't specifically recall. I don't think that it occurred on the Tuesday, but potentially on the Wednesday.

PN344

And it also would have happened on the Friday of the bargaining meetings?‑‑‑It would've also happened on the Thursday, because on the Thursday there was the confirmation that we would continue on to Friday, and also discussion that, if required, it may continue through into the next week.

PN345

And is it possible that the comment may also have been made on the Friday as well?‑‑‑I don't specifically recall comments on the Friday.

PN346

I don't have any further questions for Ms Alston, thank you, Commissioner.

PN347

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

RE-EXAMINATION BY MS POLE [4.44 PM]

PN348

MS POLE: Thank you.

PN349

Just one question to clarify, Ms Alston, which is when you talked about, on the Friday, that the group went through line by line the wording and proposed wording changes of documents, did that include the enterprise agreement?‑‑‑Yes.

PN350

Thank you. I have nothing further.

PN351

THE COMMISSIONER: Ms Alston, can I thank you for your attendance here today. You're now excused as a witness. Thank you.

<THE WITNESS WITHDREW [4.45 PM]

PN352

MS POLE: Commissioner, I'm just going to step out of the frame to address the background noise, but won't be leaving the room. I'll return shortly.

PN353

THE COMMISSIONER: Good. You might admit - is it Mr Wilson next?

PN354

MS POLE: Yes, thank you.

*** REBECCA ALSTON RXN MS POLE

PN355

THE COMMISSIONER: Let's admit Mr Wilson. And whilst we're just waiting and, Ms Douglas and Ms Pole, I feel we're not going to finish the evidence today. Because I'm on a different time zone I have some difficulties going past, well, 5.15 here, which is in half an hour's time, which means I hoped we could at least get through Mr Wilson, but then we would have to come back at about - I'll just look at my calendar and the time difference, say, 1.15 tomorrow, which is, what, 10.15 your time.

PN356

MS DOUGLAS: 10.15, yes.

PN357

MS POLE: I have no issue but just let me double check with Mr Spencer. I'm sure it should be fine, but just give me one moment to check. Yes, no issue from our end, Commissioner.

PN358

THE COMMISSIONER: Thank you. Is that convenient for you as well, Ms Douglas?

PN359

MS DOUGLAS: Thank you, Commissioner, it is.

PN360

THE COMMISSIONER: Thank you. All right, let's have Mr Wilson.

PN361

MS POLE: I think Mr Wilson may already be on the line.

PN362

THE COMMISSIONER: I can't see. Mr Wilson, can you turn on your - very good. Mr Wilson, can you see me and hear me? I'm Commissioner Johns.

PN363

MR WILSON: I can, Commissioner.

PN364

THE COMMISSIONER: Very good. Let me administer the affirmation to you.

<ADAM WILSON, AFFIRMED [4.47 PM]

EXAMINATION-IN-CHIEF BY THE COMMISSIONER [4.47 PM]

PN365

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

*** ADAM WILSON XN THE COMMISSIONER

PN366

Yes, paragraph 52 of the court book. Are there any amendments you'd like to make to the witness statement?‑‑‑No, Commissioner.

PN367

Are its contents true and correct?‑‑‑As much as I was aware, yes.

PN368

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

PN369

Thank you. It's exhibit 10 in the proceedings.

EXHIBIT #10 WITNESS STATEMENT OF ADAM WILSON

PN370

THE COMMISSIONER: If you just wait there, Ms Douglas has some questions for you.

CROSS-EXAMINATION BY MS DOUGLAS [4.48 PM]

PN371

MS DOUGLAS: Thank you, Commissioner.

PN372

Mr Wilson, Ms O'Keefe was the representative, or one of the representatives of the Australian Workers' Union who attended the bargaining meetings in February; is that right?‑‑‑That's correct.

PN373

Her evidence is that she raised a proposal or a suggestion about pay rises being linked to CPI or a nominal percentage. Is that right that she made mention of that during any of the meetings?‑‑‑I don't recall whether it was that representative in particular, but certainly some people from the AWU did mention it, yes. Certainly Cate did and the gentleman on the third day, Brad, I believe, mentioned it as well.

PN374

And Brad ‑ ‑ ‑

PN375

MS POLE: Sorry, I do apologise, it may assist to refer to Catherine O'Keefe as Cate as she was referred to in the bargaining meeting, just to avoid any confusion. Apologies for interrupting.

PN376

MS DOUGLAS: Thank you. I note the suggestion. Brad, who you've referred to, from the AWU, in addition to the proposal he made about pay rises, he also made mention of loadings paid on employee leave; is that right?‑‑‑I believe that was mentioned as well, yes.

*** ADAM WILSON XXN MS DOUGLAS

PN377

And in terms of Brad's other suggestion about a floor or a safety net on pay rises, is it true that he said words to the effect of, 'Let me be clear, I'm making a claim on behalf of our members for a floor or a safety net for pay rises'?‑‑‑I don't recall those words in particular, but I recall that there was discussion around that.

PN378

Would you agree that the first two days of the bargaining meetings, being the Tuesday the 15th and Wednesday the 16th were focused mainly on discussions about Gold Fields' policies?‑‑‑No, I wouldn't agree with that. I think that the first couple of days were, I think, mainly focused on the enterprise bargaining. I think the final day, the Friday, was mainly focused on policy updates. But the first three days, in my mind, were focused on the actual enterprise agreement with some discussions about policy as well. I mean, there's significant overlap between the two, in my mind.

PN379

If you'll bear with me just a moment, there's a lot of paperwork I'm just trying to navigate through. In terms of some of the policies that, or some of the enterprise bargaining, as you say, that was discussed in the first couple of days of the meetings, do you recall that covering items such as private health insurance allowance?‑‑‑Yes.

PN380

And do you recall one of the topics of the enterprise bargaining being around a fair treatment policy?‑‑‑There was discussions about the fair treatment policy, yes.

PN381

Also some of the enterprise bargaining, on those first two days, raised the topic of menstrual leave?‑‑‑Yes.

PN382

And you classified that as part of the discussions of enterprise bargaining?‑‑‑We were putting forward ideas that had come from the workforce that we wanted to be considered as part of the enterprise bargaining. The decisions were made to include those in policy rather than in enterprise bargaining.

PN383

So you accept that a lot of the discussions about those types of issues didn't eventuate in the proposed enterprise agreement that's been circulated for vote?‑‑‑I think some of them perhaps didn't make it into the enterprise bargaining agreement and were, instead, reflected in policy updates. That's fair to say.

PN384

In terms of the policy updates that you've referred to, those policy updates were circulated to employees, with the proposed enterprise agreement, for vote?‑‑‑Yes.

*** ADAM WILSON XXN MS DOUGLAS

PN385

Was that by the portal?‑‑‑I think they were emailed out and via the portal as well, I believe. I'd have to double check that. I know they were emailed to me, but they may have only been emailed to me, as a bargaining rep, rather than the entire workforce, so I'd have to - I'm not 100 per cent sure of that, but they were available via the portal.

PN386

So in terms of the documents, as a bundle, that were circulated, when you had the proposed enterprise agreement, there were also documents in the bundle, which were the policies reflecting the updates that were discussed?‑‑‑Correct, yes. There were draft policies, rather than final version, they were draft policies, but they were included with the enterprise bargaining, final agreed version, yes.

PN387

Thank you. Is it fair to say, Mr Wilson, that Michael Spencer said that there were pay increases due from the March pay review and that the vote would need to proceed, as planned, in March, early March, in order for those pay increases to be passed on to employees?‑‑‑That's fair, yes.

PN388

Did it also happen that Michael said that the vote for the proposed agreement needed to result in a yes, in order that the increases would be paid in the March pay run?‑‑‑I don't think so. I think we had some discussions on this and my recollection is that there had to be a vote on the enterprise agreement, in order to start the process of the pay reviews, but the outcome of the vote didn't have to be yes. If it was no, then the pay reviews would still go ahead, regardless of the outcome of the vote. That was my understanding of it.

PN389

Can you say that those words were specifically said by Mr Spencer, or was it, instead, your understanding of the discussion?‑‑‑It may have just been my understanding. I don't recall a specific, but I'm pretty certain that that was the intent of what was said. That was my take away from it anyway.

PN390

I don't have any other cross‑examination questions for Mr Wilson.

PN391

THE COMMISSIONER: Thank you, Ms Douglas.

PN392

Ms Pole, is there any re-examination?

PN393

MS POLE: No, thank you.

PN394

THE COMMISSIONER: All right. Mr Wilson, can I thank you for your attendance here today, you're now excused as a witness.

<THE WITNESS WITHDREW [4.57 PM]

*** ADAM WILSON XXN MS DOUGLAS

PN395

THE COMMISSIONER: So we will reconvene at 1.15 pm Melbourne time tomorrow. Ms Douglas, do you have a sense of how long you might be with Mr Spencer?

PN396

MS DOUGLAS: Given the period of time for each of these witnesses, I would think possibly about half an hour, 45 minutes. I don't think it would go longer - too much longer than that.

PN397

THE COMMISSIONER: All right. Then what we would do is have a half hour break and then I will have the parties come back and make oral submissions, to supplement the written submissions and the evidence that we've received.

PN398

I will then adjourn and then I will issue my decision, obviously, late on Wednesday evening, which will be that evening some time your time in Perth. I'm conscious that I have to get the decision out tomorrow because the vote concludes on Thursday.

PN399

Anything further we can do today, Ms Douglas?

PN400

MS DOUGLAS: No, I don't believe so, Commissioner, thank you.

PN401

THE COMMISSIONER: Ms Pole, anything further?

PN402

MS POLE: Just one quick housekeeping question, will we expect a transcript of today's proceedings overnight? It's not a problem if not, I just need to know?

PN403

THE COMMISSIONER: I put in an urgent transcript. My associate can assist me now, as to what might be happening.

PN404

THE ASSOCIATE: I don't believe it's - I'll have to double check if it's overnight. I know that it's a one day period to get the urgent request.

PN405

MS POLE: We'll plan for no, in that case.

PN406

THE COMMISSIONER: Yes, that will make it difficult. Anyway, thank you very much, we're adjourned.

ADJOURNED UNTIL WEDNESDAY, 09 MARCH 2022 [4.59 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

BRADLEY GANDY, AFFIRMED............................................................... PN19

EXAMINATION-IN-CHIEF BY THE COMMISSIONER....................... PN19

CROSS-EXAMINATION BY MS POLE.................................................... PN35

THE WITNESS WITHDREW.................................................................... PN103

CRAIG DUNNE, AFFIRMED.................................................................... PN111

EXAMINATION-IN-CHIEF BY THE COMMISSIONER..................... PN111

EXHIBIT #26 WITNESS STATEMENT OF CRAIG DUNNE.............. PN116

THE WITNESS WITHDREW.................................................................... PN125

CRAIG DUNNE, RECALLED................................................................... PN125

EXAMINATION-IN-CHIEF BY THE COMMISSIONER, CONTINUING.............................................................................................. PN125

EXHIBIT #23 CRAIG DUNNE'S NOTES OF MEETING...................... PN130

CROSS-EXAMINATION BY MS POLE.................................................. PN131

THE WITNESS WITHDREW.................................................................... PN194

EXHIBIT #24 NOTES OF CATHERINE O'KEEFFE............................ PN203

CATHERINE O'KEEFFE, AFFIRMED................................................... PN215

EXAMINATION-IN-CHIEF BY THE COMMISSIONER..................... PN215

CROSS-EXAMINATION BY MS POLE.................................................. PN219

RE-EXAMINATION BY MS DOUGLAS................................................. PN282

THE WITNESS WITHDREW.................................................................... PN286

REBECCA ALSTON, AFFIRMED........................................................... PN300

EXAMINATION-IN-CHIEF BY THE COMMISSIONER..................... PN300

EXHIBIT #11 WITNESS STATEMENT OF REBECCA ALSTON...... PN306

CROSS-EXAMINATION BY MS DOUGLAS......................................... PN307

RE-EXAMINATION BY MS POLE.......................................................... PN347

THE WITNESS WITHDREW.................................................................... PN351

ADAM WILSON, AFFIRMED................................................................... PN364

EXAMINATION-IN-CHIEF BY THE COMMISSIONER..................... PN364

EXHIBIT #10 WITNESS STATEMENT OF ADAM WILSON............. PN369

CROSS-EXAMINATION BY MS DOUGLAS......................................... PN370

THE WITNESS WITHDREW.................................................................... PN394