Industrial Relations Commission New South Wales Medium Neutral Citation: New South Wales Local Government , Clerical, Administrative, Energy, Airlines & Utilities Union v Marrickville Council [2013] NSWIRComm 1003 Hearing dates: 1 and 2 December 2011, 20 January, 13 April and 22 June 2012 Decision date: 22 January 2013 Jurisdiction: Industrial Relations Commission Before: Bishop C Decision: Application for Orders dismissed Catchwords: INDUSTRIAL DISPUTE: meaning of provision in 2003 Enterprise Agreement re collection of green waste - correct application of intent of darg - allegations of inappropriate negotiations in 2007 - allegations agreement reached under duress - allegations agreement reached in breach of EA - allegations of lack of consultation - reversion to former agreement sought but in terms of collection of bins - orders sought - HELD faults on three sides - union - members - managers - mistake as to darg genuine - no intent to mislead - employees not meeting productivity targets - targets not capable of being met - interpretation of agreement sought incorrect - proposal of Council reasonable and practical - application for orders dismissed - recommendations issued. Legislation Cited: Industrial Relations Act 1996 Interpretation Act Cases Cited: Bell v Lever Bros Ltd [1932] AC 161 Briginshaw v Briginshaw (1938) 60 CLR 336 Director of Public Employment by her agent the Commissioner of New South Wales Fire Brigades v New South Wales Fire Brigade Employees' Union [2008] NSWIRComm 158 Con-Stan Industries Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 60 ALJR 294 Fair Work Ombudsman v National Jet Systems Pty Limited [2012] FCA 243 Jones v Dunkel (1959) 101 CLR 298 Payne v Parker [1976] 1 NSWLR 191 PSA & the Zoo [2007] NSWIRComm 1080 Perisher Blue Pty Ltd and Others v Australian Workers Union (1999) 91 IR 274 New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union v Cessnock City Council & anor [2007] NSWIRComm 1061 Robertson v Marrickville Council [2003] NSWIRComm 394 Zoological Parks Board of New South Wales v The Australian Workers' Union, New South Wales [2004] NSWIRComm 85 Category: Principal judgment Parties: New South Wales Local Government , Clerical, Administrative, Energy, Airlines & Utilities Union (Applicant) Marrickville Council (Respondent) Representation: Mr M Barnes (Applicant) White Barnes Mr S Jauncey (Respondent) Henry Davis York File Number(s): IRC 1409 of 2011 DECISION 1This matter concerns a notification made pursuant to s.130 of the Industrial Relations Act 1996 of a dispute between the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union ("the USU") and Marrickville Council ("the Council"). 2The dispute was notified to the Industrial Registrar on the 25 August 2011 and was in the following terms: "The question, dispute or difficulty concerns the following industrial matters: There is dispute between the United Services Union and Marrickville Council relating to: a)The proper construction of a Council agreement known as "Marrickville Council Waste Services Agreement 2". b)The manner in which Clause 13.2 is to be interpreted in the context of - i.50 Green Waste Collections per day. ii.What constitutes 1,158 bins per run based on 100% presentation. iii.Whether the DARG of 1,158 bins is a reference to the actual number of bins to be collected or a theoretical number of bins that might be available for collection on any run. c)Departures from the proper construction of the Council Agreement without the consent of the United Services Union. 3This dispute notification arose from earlier s.130 disputes between the parties (as notified by Council and the USU respectively) concerning industrial action that was being undertaken by members of the USU employed by Council in the Waste Services Section (IRC 11/1224 and 11/1227) due to a proposal by Council to advertise for the tender of Green Waste collections. Whilst that industrial action ceased, and Council dropped its proposed tender process, as a consequence of the conciliation conferences conducted by the Commission, the underlying issue as to the differences between the parties concerning the correct interpretation of the 2003 Council Agreement remained, resulting in the notification of this further dispute. 4As the issues had been traversed at some length in private conference in the earlier listed disputes and the Commission considered that there was no possibility of resolving the differences between the parties through further conciliation, this matter was listed for mention and directions on the 29 August 2011. The parties subsequently conferred as to an appropriate timetable for the filing and exchange of evidence. 5On the 12 September 2011, a Certificate of Attempted Conciliation was issued pursuant to s.135 of the Act, and directions as to the filing and exchange of witness statements, were issued in Chambers. The matter was set down for hearing on the 1 and 2 of December 2011. A further day was required for the taking of evidence on 20 January 2012. An agreed timetable was issued for the filing and exchange of written submissions and an Agreed Facts document, with oral submissions to be heard on 13 April 2012. However as submissions were filed late by both parties, with the very short Agreed Facts document only tendered on that day (Exhibit 38) along with the tender of certain exchanges of correspondence between the parties, oral submissions did not proceed, and a further date of 22 June 2012 was fixed (due to the lack of availability of any earlier date in the Commission's diary). The Commission was also advised that there was the potential for parties to have further discussions. 6On the 24 April 2012, an Affidavit of Urgency sworn by Stephen Donley, Metropolitan Manager of the USU, was filed by White Barnes (Exhibit 39), essentially raising concerns that the matter had not progressed to oral submissions on 13 April as originally scheduled, and was instead listed for that purpose on 22 June 2012. The Affidavit sought to have that date vacated and the matter determined on written submissions as filed, that "the proposed timetable was unacceptable due to the continuing conflict between the parties in the workplace and the membership", that the parties had taken steps to appoint a mediator and that a further dispute had come before Commissioner Ritchie in recent weeks as well as a degree of agitation in the local press. 7The Affidavit of Urgency was listed for consideration before the Commission on the 30 April 2012 at which time the Commission briefly heard the parties. Mr Jauncey on behalf of Council pressed the opportunity of making oral submissions supplementing the written submissions as filed. The Commission determined that the 22 June 2012 would remain as listed for the hearing of oral submissions. This was due not only to diary difficulties (and impending annual leave of 5 weeks) but also on the basis that oral submissions would assist in the consideration of the matter. The parties were also advised that vacation of that date would not speed up the process of a decision being issued. The Commission had been concerned to publish other decisions concerning employees who had been dismissed and sought reinstatement or faced suspension and had had their hearings concluded and these decisions had been given priority prior to impending retirement. 8Throughout these proceedings the Commission has stressed that conciliation to try and settle the dispute between the parties was always available, and the preferred option. 9At the hearing Mr Barnes, with Ms Wilson, appeared on behalf of the USU and called the following witnesses (with the exception of Mr Moody) to give oral evidence in addition to the witness statements as filed: Graeme Kelly ...................General Secretary, USU (Exhibits 14 &15), Philip Littlewood................previous employee of Marrickville Council (Exhibits 16 &17), James Connor..................USU member, Marrickville Council (Exhibit 20), Wayne Moody..................Organiser, USU (Exhibit 21), Christopher Mulholland....USU Delegate, Marrickville Council (Exhibits 22 & 23), Stephen Donley ..............Metropolitan Manager, USU (Exhibits 25 & 26), Siobhan Callinan .............Organiser, USU (Exhibit 29 & 30), Claire Raffan....................Organiser, USU (Exhibit 31). 10Both Mr Mulholland and Mr Littlewood appeared in answer to a Summons To Give Evidence pursuant to s.165(3)(b) issued by White Barnes, Solicitors, on behalf of the USU. Mr Moody was not required for cross examination. 11Mr Jauncey appeared on behalf of Council with Mr Joseph, and called the following witnesses to give oral evidence in addition to the witness statements as filed: Jeffrey Wilks........... Manager Infrastructure Works and Services, Marrickville Council (Exhibit 33), Oliver Wady........... Coordinator Resource Recovery (Waste) Unit, Marrickville Council (Exhibit 35). . Statement of Agreed Facts 12The Commission had directed that, in an endeavour to reduce the issues in dispute, the parties file a document setting out agreed facts. In response, the following document was filed (Exhibit 38): In this matter, the parties agree the following facts: There are no references to the Waste Services Agreement 2 in any of the Consultative Committee documents for the calendar years 2003 and 2007 (provided to White Barnes on 21 December 2011 and 17 January 2012). There are no references in the Consultative Committee Documents for the calendar year 2003 to the WSA2 in relation to the use, in about late 2003, of what had previously been the second 'spare' garbage truck for the pick up of green waste, or the cessation of green waste collections by garbage staff at that time. There are no references in the Consultative Committee documents for the calendar year 2007 to the revised working arrangements regarding the 250 green waste bins. Paul Mazotta was a member of the Consultative Committee in 2007 and was present at the Consultative Committee meeting on 17 July 2007. Orders Sought 13The USU sought the following orders (Exhibit 9): The Commission pursuant to its powers including pursuant to Section 175 of the Act make an Award, Order or Decision, however described that: 1.Collections for the purpose of the Council Agreement identified in the Dispute Notification is no more than 50 wheeled bin collections. 2.That for the purposes of Clause 13, on the day there is Green Waste Collections the DARG shall be a theoretical maximum of 660 waste bins and no more than 50 green collection bins. 3.Marrickville Council forthwith refrain from issuing any orders or directions (however described) to its employees engaged in such duties pursuant to Clause 13 to collect more than 50 green wheel bin collections, per day. 4.That the collection runs as referred to in Clause 13.1 of the Council Agreement be forthwith amended to reflect the Decision. 5.That the parties forthwith schedule conferences with a view to facilitating the introduction of the Decision set out herein. Background and Chronology 14The following Background and Chronology has been extracted from all the witness statements collectively, as well as the written submissions, as filed, and the transcript. 15Mr Graeme Kelly has been the General Secretary of the USU since 2010 replacing the former General Secretary Mr Ben Kruse. From 1990 to 1995 his organising responsibilities included the outdoor staff at the Council as well as all blue collar and white collar staff in 1996. After a year in Newcastle he again had responsibility for members at the Council in 1998. 16Mr Stephen Donley commenced with the USU in 2000 as an Organiser and was the Organiser responsible for the Council between 2000 and 2004 dealing with issues of relevance to both indoor and outdoor staff. 17Mr Wayne Moody commenced with the USU in 2000 and was the Organiser for members employed by the Council from September 2005 until the end of 2006. 18Ms Claire Raffan commenced with the USU on 1 November 2006, and was on a period of probation for the first six months of her employment. She was the Organiser for members employed by the Council from 1 November 2006 to approximately August 2007. 19Ms Siobhan Callinan joined the USU as an Organiser in mid 2007, and subsequently had responsibilities, at times, for both outdoor and indoor workers at the Council, but became the regular organiser for those members in March 2009 and continued to be the relevant Organiser as at the date of the hearing. 20Mr James Connor commenced employment with the Council in approximately 1992 and became the driver of a Council garbage truck in approximately 2001. 21Mr Christopher Mulholland commenced employment with the Council in 2004 and has been the USU delegate for the past three years. He is also a USU representative on Council's JCC. 22At the time of the negotiations for a new Enterprise Agreement between the parties in the period 2006-2007. Mr Brian McQuillan was the USU Delegate representing Council employees engaged in the Waste Services section. Mr McQuillan had also been the USU Delegate involved in the 2003 Agreement negotiations. Mr McQuillan passed away at some time prior to this dispute being notified. 23Mr Phillip Littlewood was previously employed by the Council for two periods - 1996 to 1998, and mid 2002 to 2005. During his first period of employment with the Council his position title was 'Recycling Administrator' and during the second period his title was 'Business Unit Administrator Waste'. In the latter role he dealt virtually with all aspects of waste collection ranging from household garbage to recycling, to laneway clearing and litter bin runs. He was involved in the negotiations for the 2003 Enterprise Agreement. 24Mr Oliver Wady is employed by the Council in the position of Coordinator Resource Recovery (Waste) Operations (formerly referred to as Business Unit Administrator, Resource Recovery (Waste) Unit ) and has worked in that position since August 2005. He reports to Mr Swilks. He was previously employed by the Council from around May 2001 to August 2004. Between August 2004 and August 2005 he worked for another council. Mr Wady was involved with the negotiations with the USU over the proposed new Enterprise Agreement in 2007. 25Mr Swilks commenced with Council in 1994 as the Business Unit Administrator, Cleansing Unit. He worked at another council from 1996 to 2000, returning to Council in October 2000 as Waste Services Coordinator. From around 2005 he initially acted in, and was subsequently permanently appointed to, the position of Manager Business Units, now known as Manager Infrastructure Works and Services following a Council restructure in 2011. He reports to Mr Neil Strickland, Director of Infrastructure Services. He was involved in 3 meetings with the USU in 2007 concerning the proposed new Enterprise Agreement. 26The Marrickville Waste Services Agreement 1 (Agreement No. 1) (Exhibit 10) commenced operation on 16 January 1995. That Agreement was rescinded and replaced by Marrickville Council Waste Services Agreement 2 (Exhibit 11) which commenced operation on 5 May 2003 and was to remain in force for a period of three (3) years. Agreement No 2 continues to operate as no action has ever been taken by either party to the Agreement to rescind it. Both Agreement No. 1 and Agreement No. 2 contained a provision stating that where the Agreement was inconsistent with the relevant Award, the Agreement would prevail. The only nominated parties and signatories to both Agreements are the USU and the Council. 27The Local Government (State) Award 2001 contained an express provision pursuant to Clause 33, Council Agreements, for the parties to enter into such arrangements. The 2001 Award (and its successors) also contained provisions in relation to the establishment and operation of Joint Consultative Committees (JCCs). 28Clause 6, Commencement and Duration, of Agreement No. 2 provides that the Agreement shall not be varied within its term unless by mutual consent of the parties. 29Clause 10, Productivity-Based Remuneration Review in Agreement 1 was expressed in similar terms to Clause 11, Workload-Based Remuneration Review of Agreement 2 with the exception of firstly having an average of 1113 bins per vehicle per day, and secondly that "salary levels already reflect an expected productivity increase arising from the planned green waste clean-up service" with the provision for an initial 12 monthly review prior to moving to six monthly reviews. 30Under the 1995 Agreement garbage crews only picked up garbage, and did not pick up green waste or other waste as there was a separate "clean up crew" who picked up green waste and other household waste. There were five separate designated garbage runs on each of the five week days from Monday to Friday (giving a total of 25 separate garbage runs over the course of a week). 31As the baseline for productivity measurement under the 1995 Agreement for each of the 25 designated weekly garbage runs was an average of 1,113 mobile garbage bins per run (based on an assumed 100% presentation rate), the total weekly baseline productivity measurement over the full 25 garbage runs was 27,825 garbage bins (again based on an assumed 100% presentation rate on each run each day). 32The 1995 Agreement also provided for a $100 per week productivity increase in the base weekly rate of pay for each classification covered by the Agreement in return for garbage crews meeting the relevant productivity baseline. This increase was in addition to increases flowing from State Wage cases and other variations to the Local Government (State) Award. Another outcome of negotiations was that there were 14 positions made redundant. 33The productivity pay increase of $100 has continued to be paid to employees since 1995. 34As at January 2003 there were only 26,462 mobile garbage bins (MGBs) on issue at Marrickville Council, being 1,363 fewer MGBs on issue for potential pick up over the course of a week than the total baseline productivity measurement under the 1995 Agreement. 35Clause 11, of Agreement 2, relevantly provides as follows: 11.1 It is agreed that, at six monthly intervals following the implementation of this Agreement, a review will be conducted of the waste collection workloads based upon the number of bins requiring collection, and negotiations entered into to ascertain the need for, and extent of, any increase to the increase or decrease in wage levels, common throughout the service arising from trends in the overall figures. 11.2. It is agreed that the baseline for productivity measurement as that the commencement of this Agreement will be an average of 1158 bins per vehicle per day. (Emphasis added). 11.3. Means of assessing numbers bins collected - at the end of each six monthly period a printout will be obtained from Council's computer recording system, reflecting the number of Mobile Garbage Bins currently available for collection. This figure will be compared with the total for the corresponding date six months prior, and negotiation based on the difference in bin totals. 11.4. Formula: ? (MGB's) x 5(days per week) x $0.30 (per bin) 3 (number of crew) 36The disputed provision of Agreement 2, is to be found in Clause 13, Collection Schedule, subclause 13.2 as follows (Exhibit 11): The 25 runs set out in the 1995 Waste Services Agreement will be reduced to twenty two and a half runs. In addition there will be the collection of fifty (50) green waste collections per day. This will be achieved by downsizing of one run per day to 660 bins, at the completion of the collection of those bins that truck will tip its load and return to collect 50 green waste collections. The other four runs per day will be redesigned to accommodate the collection of 1158 bins per run based on 100% presentation. (Emphasis added). 37The USU did not oppose the notion that the term "collection", through the introduction by Council of MGBs, evolved from one bundle of green waste to one bin containing green waste (Exhibit 12). The Waste Unit and the collection of waste at Marrickville Council - 2011 38The collection of "waste" is undertaken by the Waste Unit, part of the Infrastructure Works and Services area within the greater Infrastructure Services Directorate. That Directorate is one of four separate Directorates within Council, and was previously known as the Technical Services Directorate. Mr Wady reports to Mr Swilks, the Manager Infrastructure Works and Services, who in turn reports to Mr Neil Strickland, the Director of Infrastructure Services and he reports directly to the General Manager. 39As at the date of the hearing there were approximately 50 full time employees within the Waste Unit and the staff have various roles depending on the nature of their work such as the following: (a) waste drivers and waste loaders who pick up general household garbage; (b) recycling drivers and recycling loaders who pick up recycling; and (c) various leading hand drivers, street scape maintenance workers and general clean up workers. 40The collection of "waste" includes the collection of a variety of matter including: (a) household waste and garbage; (b) recycling, for example, paper, glass, plastics and aluminium; (c) household items, for example unwanted couches or other furniture; (d) metallic household items, for example unwanted fridges or washing machines; and (e) green waste, for example, leaf clippings, small branches and the like. 41Garbage staff typically start work at 5:00 am and typically finish work between around 10.30 am to 11:30 am, that is, around a 5.5 to 6.5 hour shift. The Agreement provides that they can theoretically work until 1:45 pm (including a 45 minute lunch break) any work performed after 1:45 pm (which only very rarely occurs) is paid at overtime rates. Employees work on a 'job and finish' basis. Green Waste Arrangements 42There is no dispute between the parties as to the arrangements in place prior to 2003 for the collection of green waste, which can be summarised as follows: A separate 3 person "clean up crew" performed green waste pick ups on Mondays and Fridays with the Local Government Area being divided into a "Monday" green waste zone and a "Friday" green waste zone. Residents would telephone Council to organise a green waste pick up, and would be allocated a "ticket" for a pick up on the next Monday or a Friday, depending on their zone (or, if that was not possible, for the Monday or the Friday in the following week). The clean up crew picked up a maximum of 100 green waste tickets on any particular Monday or Friday with the number rarely falling below 100 per day. The ticketed green waste pick up system required the clean up crew to sort out the individual tickets before having to drive around the entire "Monday" or "Friday" zone (each comprising one half of the total Local Government Area) to pick up ticketed green waste bundles; Each "ticket" meant actual work, as the presentation rate for booked green waste pick ups was close to 100%. Even if a ticketed bundle was not presented, it still meant actual work as the crew had to travel to the relevant location and look for the bundle. The green waste consisted of tree/branch cuttings and other gardening vegetation that residents were seeking to have Council collect. It had to be bundled in a convenient way for it to be collected. The bundling system allowed for up to 2 cubic metres of green waste, but even a small amount constituted "a collection". 43Some time in 2002, Council introduced trial arrangements whereby about 100 green-lidded mobile bins (MGBs) had been issued to select residents for the disposition of green waste. Mr Swilks coordinated the project and Mr Wady was in charge of organising the roll out. These bins were still collected using a ticketed system, and the pick up of "bundled" green waste under the ticketed system continued in parallel at that time. The trial was well received and, in about late 2002, Council decided to roll out green waste containers to a wider range of residents (with residents having a choice of 3 different sized containers - a 240 litre MGB, a 140 litre MBG or a 115 litre "collapsible" bag or bin). This roll out commenced some time around March 2003, but the issuing the new green waste containers only occurred where residents had telephoned Council and requested such. The roll-out of green waste containers was not complete as at April/May 2003. 44Copies of the leaflets advising of the availability of the collapsible bag as well as various leaflets containing information for residents were also in evidence and attached to Mr Wady's witness statement. 45At the time the 2003 Agreement was negotiated, green waste (whether presented in a bundled form or in some form of container) was still being picked up using a ticketed system. 46In 2003 negotiations for a new Enterprise Agreement were finalised in April/May resulting in Agreement 2. Under the 2003 Agreement garbage staff retained their previous weekly productivity pay increase under the 1995 Agreement, and also gained access, along with all other Council staff, to up to an 8% competency increase as well as a further potential for access to a further 2% bonus. The Agreement still maintained 'job and finish'. 47At the same time, in order to generate a productivity improvement, Clause 13.2 of the 2003 Agreement provided that there would be "the collection of fifty (50) green waste collections per day" which would be achieved by each garbage crew acting to "collect 50 green waste collections" on one half day per week (with one crew doing so on Monday, another crew doing so on Tuesday, and so forth). 48Following the introduction of the 2003 Agreement, steps were then taken to draw up revised runs for designated daily garbage collection operations, the intent being to have each full daily run cover fairly close to 1,158 MGBs (assuming 100% presentation), but resulting in some runs possibly covering slightly fewer "potential" bins while others may have covered slightly more. The runs were then agreed between Council (Mr Littlewood was involved in this process), and staff and the then USU Delegate, Mr Brian McQuillan. The proposed new arrangement was not taken to the JCC. 49The garbage crews commenced picking up green waste on one half day, per crew, per week involving a mix of a bag or bundle or an MGB, and operated fortnightly on the alternate week to the recycling MBG collection. This continued to be done using a ticketed and booked system, rather than on a designated run based system (such as that used for garbage collections). The ticketed system was not actively promoted by Council. 50On each half day, a garbage crew was allocated a series of ticketed collections which required them to drive to different locations to pick up the booked green waste ticket. This system still required the garbage crew performing green waste pick ups to drive substantial distances throughout the Local Government Area to pick up green waste on their half day. Mr Connor was one of the Waste Services employees engaged in such collections. 51During mid to late 2003 Council provided seven compactor trucks for the use of garbage crews consistent with a commitment provided to the USU as part of the negotiation of the 2003 Agreement (in 2002 there had been six new trucks replacing the old trucks, with two of the newer trucks retained for use as "spares"). Five compactor trucks were used for normal garbage operations, while the remaining two were kept as spare trucks, primarily for use in the event of breakdowns or mechanical faults with other compactor trucks. In or about December 2003 Council changed these working arrangements so as allocate one "spare" truck to dedicated green waste collection to be staffed by a separate crew. The proposed change was again negotiated by Mr Littlewood at a local level directly with the USU delegate Mr McQuillan and staff. There was no involvement of any USU Officer. As part of this change in working arrangements, garbage staff ceased performing any green waste collections, notwithstanding the requirement for such under the 2003 Agreement. 52Garbage crews did not pick up any green waste between 2004 and 2007, but continued to pick up MGBs of household waste on the five designated runs over five days of the week. As at 2006 Council records show that there were 27,130 MGBs on issue to residents, and as at 2007 there were 27,660 MGBs on issue. The maximum numbers of bins that would have been possible under the 2003 Agreement (assuming 100% presentation on each day and on each run and without collection of green waste) was 28,950. MGBs for household waste were either 140 litre (individual houses) or 240 litre capacity (blocks of flats/home units). 53The 2003 Agreement 2 expired in 2006 and negotiations for a new agreement commenced in late 2006. Mr Moody was involved in negotiations on behalf of the USU in late 2006 (up until November) and then Ms Raffan became involved up until May 2007. 54Council were seeking as a consequence of the negotiations that there would an Enterprise Agreement covering the three units of Waste Services, Cleanup and Recycling. As part of the discussion for the Waste Services, Council's proposals included a reduction from 5 trucks to 4 trucks, with 1158 bins to be collected per truck based on 100% presentation for the 4 trucks per day and a "half run" for a fifth truck of 660 bins plus 50 green waste bins. There were separate proposals for Recycling. 55On 25 January 2007, the USU wrote to Council advising that a meeting had been held with Waste Services staff members and as a result the following proposals by Council had been rejected (Exhibit 26): 1.That Waste Services staff trial four trucks for a period of six to eight weeks with the bin bonus included; 2.that a committee of the Council, drivers and the Union be firmed to redo the runs of a four-truck operation; 3.That a lane truck be used for bin collection in lanes and alleys; 4.That the bin runs be alternated to spread the noise of early collection. 56The USU further advised of a motion unanimously passed by members, that the Union looked forward to continuing negotiations on 2 February 2007, awaited a response, and that Claire Raffan should be contacted in relation to the letter. The motion passed by members was as follows: Status Quo Remove the 50 green waste tickets Include a 9 day fortnight No reduction in trucks. 57On 15 February 2007, Council's General Manager Candy Nay wrote to the then USU General Secretary Ben Kruse referring to letters from the USU of 27 January and 7 February informing of the outcome of the USU's discussions with the Waste Services staff concerning Council's proposals. (The 7 February letter from the USU was not in evidence.) The letter went on to state as follows (Exhibit 35-OJW9): I understand a deadlock has been reached, and in the last round of negotiations held on 9 February 2007, both parties have agreed to the following: five trucks to be retained; existing workload to be rostered within a 19 month; no change in remuneration; 5 am starting arrangement to be continued subject to any intervention by the Environmental Protection Agency; and green waste bin collections to be reinstated to the equivalent of 50 green waste tickets. Details will be calculated by Jeff Swilks, Manager Business Units. (Emphasis added). Council is now prepared to start negotiations with the Union to finalise the Recyclers agreement. Please advise us of a discussion date and time convenient to you to commence. 58There was no evidence before the Commission as to any written response to Council's letter from the USU. 59On 11 May 2007, the USU wrote to Council (the contact for reply was given as 'Clare Raffan'), and referred to a meeting held that day regarding the Recyclers Agreement, "an impasse" being reached between the parties and that staff had raised various questions and issues of concern. In response to Council's request that "staff provide them with a dot point list of concerns so they can be addressed before the next meeting", some 9 specific concerns were then listed amongst which were the following: 1...... 2...... 3. How many green waste bins are going to be done by garbage? (emphasis added). 4...... 5. The 240 litre bin is a lot heavier than that of 120 litre of garbage. Has this been taken into consideration when looking at the time to do the DARG of 1158?. 6...... 7...... 8...... 9...... 60Council responded by letter of 17 May 2007 to the USU (again addressed to the General Secretary Ben Kruse but marked "Attn: Ms. Clare Raffan") concerning 'Recyclers' Agreement - Operational Matters and in response to the USU's letter of 11 May regarding the operational matters raised in the context of negotiations for the new EBA with Recyclers. Council outlined in some detail responses to the 9 specific concerns raised in the USU's letter raised. The responses to items 3 and 5 above, are as follows (Exhibit 35-OJW10): 1...... 2....... 3. It is proposed that the garbage staff will collect up to 250 green waste containers per day. This number is currently being clarified with the garbage collection staff, as you have been advised. The USU's assistance is sought to resolve this matter as soon as possible. It is noted that a meeting between Council and the USU are scheduled for 11 am on Friday 18 May to resolve the matter. 4........ 5. It should be noted that the garbage collection staff do not collect 120 litre Mobile Garbage Bins (MGB's). The garbage service comprises a mix of 140 litre MGB's at single unit dwellings (i.e. houses) and 240 litre MGB's at multiunit quelling (i.e. flats and units). Recycling bins across the local government area (LGA) are predominantly to 240 litre MGB's. The weight of bin contents of both recycling and garbage bins was determined by an independent audit as part of the SSROC Waste Audit project in 2005. This project identified that the average weight of the contents of a garbage MGB was 9.4 kgs (Source: Prince Consulting Report to SSROC and Marrickville Council). An independent waste audit of Marrickville's domestic waste stream, conducted in 2004, demonstrated that the average household generates 9.34 kilos of garbage, and 6.05 kilos recycling per week (Source: Waste Audit of Domestic Garbage and Recycling Report to Technical Services Sub Committee 2004). It should be noted that both audits used identical methodology to ensure comparison between results was possible. The weight of the standard 240 MGB is 13.5 kgs (Source: SULO Specification Q5). When the average weight of contents is added to that of a standard bin it gives the sum weights of 22.9 kgs and 19.55 kgs for garbage and recycling in MGB's respectively (using the greater of the 2 audited weights as identified above). This would indicate that, contrary to your observation, a garbage bin is heavier than a recycling bin on average. 6........ 7........8........ 9........ (Emphasis added). 61The remaining points dealt with issues concerning maintenance of staffing levels for the greenwaste and recycling service; there being no "permissible OH&S weight for a 240 MGB (and discussion of that); and generally issues of weight and safety concerning recycling MGBs, as well as issues of noisy locations. 62It should be noted that while there was a record of this letter being sent in Council's 'TRIM' Records Management System (Exhibit 34), the USU maintained it did not have a copy of the letter and could not establish that it had ever been received as Mr Kruse ceased to be the General Secretary of the USU in approximately April 2010 with Mr Kelly then becoming General Secretary. Ms Raffan also indicated that she did not believe she had seen the letter prior to the meeting. See evidence below. 63The meeting between the USU and Council on 18 May 2007 did not result in any agreement being reached concerning the proposed Enterprise Agreement for Waste Services (which would have been Agreement No. 3) and no wage increase resulted for Waste Services staff. See evidence below. 64However, there were subsequent informal discussions held directly between Mr Swilks, Mr Wady and Mr McQuillan and the Waste Services staff concerning implementation of Council's proposals for the collection of green waste bins by garbage collectors that was agreed to by those staff and subsequently implemented. There was no involvement of any USU official in those discussions. As a result of those discussions Council's proposals for the collection of green waste MGBs resulted in "50 collections" being equated to over 400 MGBs (as per calculations of Mr Swilks), with Council indicating they only required collection of 250 MGBs. The 'job and finish' work arrangements continued to operate for Waste Services staff. See evidence below. 65Negotiations between the USU (involving USU Officials) and Council continued in relation to the Recycling staff and for a separate 'Green Waste and Recycling Agreement'. On 20 September 2007, USU General Secretary Ben Kruse (with the letter signed on his behalf by Aaron Neal, Manager Legal & Industrial) wrote to General Manager Candy Nay itemising a list of some 6 changes Council had agreed to, and indicating that the Union looked forward to receipt of the amended documentation and implementation of the abovementioned agreement. The last of the 6 items listed was as follows: 6. Clause 13.2.1 wording to be added that crews will not be expected to pick up excessive material stored beside bins. 66On 17 August 2009, Mr Swilks sent the following email to Ms Callinan at the USU (and copied to various persons within Council including Mr Mulholland). The subject of the email indicated - FW: MARRICKVILLE COUNCIL - Garbage bins in Service - Request from Chris Mulholland for annual performance pay (Exhibit 23-A): I recently received an email request from Chris Mulholland for the number of garbage bins in service for the past six years to allow calculation of outstanding productivity payments in line with Clause 11 "Workload - Based Remuneration Review" as detailed in the Waste Services Agreement 2. The email has been copied to Chris Mulholland as a courtesy acknowledgement, however all future correspondence in regard to the calculation of the performance pay issue should come through your office as the USU is a signatory to a Waste Service Agreement No. 2. Please find Excel files in the following emails (1 per email due to size of file) of the data download for Council's garbage bin database for the 6 years 2004, 2005, 2006, 2007, 2008 and 2009. In summary the bin numbers each year are as follows: DATABASE MGB YEAR Nos. 2004 28,640 Note: see below *2005 26,695 2006 27,130 2007 27,660 2008 28,177 2009 28,043 * removal of excess unit and unauthorised bin program 2005 In reference to Clause 11.2 of the calculation of "the baseline for productivity measurement is an average of 1158 pins per vehicle per day". Accordingly, the weekly bin average is as follows: DARG/truck 1158 No Trucks 5 Days/week 5 28950 Bins/week Note: It was acknowledged during the course of the hearing that this figure was a typographical error and the correct figure should have read - 26,640. 67There was no concluded Enterprise Agreement covering Waste Services staff arising from negotiations in 2007, and Agreement 2 has continued in force, never having been rescinded by the parties. The arrangements for the collection of green waste in MGBs by garbage collectors as agreed to directly between Council and staff in 2007 continued to operate until about May 2011 when USU members imposed bans on the collection of green waste on designated weekly runs due, in part, to Council seeking to tender out the collection of green waste and the belief on the part of the USU that such collection of green waste contravened Agreement 2. That matter came before the Commission by way of related dispute notifications (IRC11/1224 and IRC11/1227). Also in evidence in this matter were the letters from Mr Kelly to Council of 10 and 19 May 2011 concerning the dispute (Exhibits 37A and 37B) and what was being sought, which was essentially the status quo of reversion to the position of 2003 of either return of the spare truck or removal of the collection of green waste. 68In those disputes the Commission issued a formal recommendation as to the lifting of the bans and a resumption of the collection services (including green waste MGB's) that had been in place, and operating, prior to the bans being imposed. The bans were subsequently lifted and the arrangements that had been operative prior to the bans were restored and that has continued to be the case during this hearing of this dispute. 69The USU also tendered a bundle of documents (with a relevant summary) concerning some 7 various issues considered by the JCC during 2003 (originally annexed to Ms Callinan's statement), and some 5 various issues considered by the JCC during 2007 (Exhibit 32). The Evidence 70Mr Kelly's evidence essentially concerned the history of the 1995 negotiations and the outcome as reflected in Agreement 1 (and detailed above) and the development of the daily average run of garbage (DARG) and the calculations involved leading to an figure of 1113 bins per run that was developed as a consequence of those negotiations. The runs that were developed were based on a 100% presentation, which would be rare, and 1113 bins was a "theoretical maximum". The 1995 Agreement had a strong focus on MGB household garbage collection. H also referred to the arrangements in place concerning green waste (bundles left on the footpath) and the clean up service. 71Mr Kelly was not involved in the negotiations for Agreement 2 in 2003 nor in any negotiations that took place between the parties in 2007. 72However Mr Kelly indicated that he was of the view that the introduction of Mobile Garbage Bins for the collection of green waste represented a technological change and as such the provisions of Clause 35 of the Local Government State Award concerning Technological Change would have come into operation. 73Mr Kelly also deposed as to the role of delegates in the workplace as being the USU's local contact and liaison in relation to issues in the workplace and disputes at local level. They did not have the authority to bind the USU in agreement making processes and did not have the authority to consent to changes to established working arrangements. USU Organisers also did not have authority to consent to changes to established working arrangements and must comply with USU's own processes as to agreement making (including variations to agreements). This involved discussions at a senior level within the USU in addition to discussion and agreement between the members. 74Mr Kelly deposed that USU Organisers and Delegates present at the meetings in 2007 were not in a position to agree to any proposal by Council to vary the Marrickville Council Waste Services Agreement No. 2 in the manner described by Council. 75He also deposed that the working arrangements pursuant to any Council Agreement or Enterprise Agreement, and indeed the Award, were put in place not merely for the benefit of those employees covered by them from time to time, but with a view to maintaining terms and conditions over time. 76It was Mr Kelly's evidence that, based on his experience as an employee of councils and as a Union official, he considered what had occurred in 2007 was well short of what he would regard as proper consultation, and reporting and that there should have at least been an exchange of letters between the employer and the employees and an actual variation to the agreement and/or a new agreement to affect the variation proposed. In relation to any such variation there should also have been the benefit of a process for the members to have voted and for that outcome to be reported to the USU as part of its deliberations as to whether it would endorse the variation. 77Mr Donley deposed as to some involvement as the relevant Organiser in 2003 with the introduction of MGBs for recycling and the previous arrangements that had been in place for the collection of recycled material. Any documentation that he would have had was placed on the USU's relevant Industrial file for that period. However that file had since been lost. They could find no notes, no file notes, nothing. They had also gone through letters, and although soft copies on the file were lost, he maintained that letters were still kept on the hard drive or the computer file and they had gone through the letters and there were none. He thought the USU had TRIM but was not sure, there was a reference to a letter and it was saved. 78Mr Donley was not aware whether or not the Waste Services Delegate was a member of the JCC in 2003. He had no knowledge of any discussions that might have occurred at the JCC about the issuing of different types of bins in 2003. 79He also had no knowledge of what consultation or discussion might have taken place between Council and the USU, or between Council and the garbage staff, or the staff doing green waste. He would only have direct knowledge when the Delegates contacted him. 80Mr Donley confirmed that he was the relevant Organiser in between 2000 and 2004 when he became Director of Organising for the USU. Between 2004 and 2007 he was responsible for a number of councils. Mr Moody, then Ms Raffan, and then Mr Jamie Perkins were the organisers over time. 81He was aware of the arrangement in 2003 because he negotiated the Agreement, at which time he was of the belief they were still picking up 50 collections. He was not aware of the 25 designated garbage runs prior to 2003. He was aware of the ticketing booking system used by Council but did not know personally that there were 100 ticketed green waste collections. He acknowledged that he had limited direct knowledge of the actual arrangements in place prior to 2003. He also acknowledged that he had limited detailed memory of what was said, or done, or discussed, during those negotiations. He did not know how the figure of "fifty" was arrived at, but knew they never discussed fifty garbage bins. 82He agreed that if talking about household waste, then over 1000 bins were collected and that 50 bins represented a very small proportion of the daily total and would take a very short time, relative to the day's, work to collect. He also agreed that doing 50 ticketed collections would take much longer. 83He also agreed that what was envisaged in 2003 was that after the half day's run of 660 household garbage bins were collected that the other half day (or rest of the shift) would be spent picking up the green waste. 84Mr Donley was not involved in any subsequent discussions in December 2003 that resulted in the garbage staff ceasing to make ticketed green waste pick ups and confirmed that Mr McQuillan was the Delegate at that time. He was not aware that the garbage staff had ceased doing work under the Agreement. 85He could recall attending a meeting in February 2007 regarding the garbage Agreement but did not believe he was present in any meetings with Ms Raffan, (who was the Organiser in May 2007) or Mr McQuillan and Council Managers in May or June 2007. He could not recall being told that management had put forward a proposal that the garbage crews should do green waste covering 200 to 250 bins. 86He confirmed that if a letter had been sent in May 2007 it would not necessarily be brought to his attention if he was not directly involved. He could not recall Ms Raffan coming to see him and talking about this. 87Mr Donley agreed that if there had been a suggestion that Council might unilaterally reduce the pay of garbage workers then he would expect them to be "pretty fired up" about that. He also indicated that if Ms Raffan had heard words suggesting such by Council it would have been raised with senior levels of the Union and he believed he would have instructed that it be put in writing to Council. If it was a threat, or official, he would expect her to notify him, but not necessarily if she just heard those words out of the mouth of a Council manager. 88Mr Donly indicated that if such a suggestion was raised during a meeting the Organiser might respond and tell Council to calm down, but if it was seriously being raised he would expect it to be raised with him as the Organiser's manager and he'd then say it would have to be formalised. 89He confirmed that in Ms Raffan's role of reporting to him she would come to him at the end of negotiations, but not during, unless there were big issues or pending industrial action 90He became aware of the dispute concerning the collection of green waste in MGBs by garbage collectors in May 2011 when he was contacted by Mr Neil Strickland from Council about the ban that had been imposed. He deposed as to his subsequent involvement with the initial disputes. 91Mr Donley said he had no idea what was occurring prior to May 2011 and that as far as he was concerned he thought they were always collecting 50 collections as per the Agreement. 92Between 2007 and May 2011 no-one ever discussed the issue with him, none of the Organisers responsible ever came to him and raised green waste as an issue and he could not recall any member ever speaking to him. He had contact with Organisers responsible for Marrickville on general things. He would not have direct contact with the Delegates. 93He deposed that the argument advanced by Council was to the effect that a collection constituted 2 cubic metres and if there were 50 collections that constituted potentially in excess of 400 bins. However no document was ever produced to him in any of his discussions with the Council that showed any negotiations or agreement with the USU to vary Agreement 2, nor any agreement by the USU as to the methodology that was now being advanced, nor any informed agreement of the members. 94He also deposed that members were collecting well in excess of 100 green waste bins per day. 95Mr Donley also generally confirmed Mr Kelly's evidence as to the absence of any authority on the part of USU Organisers and delegates to agree to variations of Enterprise Agreements without reference to senior USU Officers, a vote of members affected and appropriate documentation being exchanged between the parties. He also considered that any such variation/new Agreement would have to come before the JCC. 96Mr Littlewood was not involved in the 1995 Enterprise Agreement negotiations. He gave extensive evidence as to the system followed for the collection of ticketed green waste (which is largely set out in the Background and Chronology above); the negotiations in 2003 and the resulting Agreement 2 provision concerning the 50 collections. 97He also indicated that at that time there was no system for counting the actual number of household garbage bin collections a day. It could only be done by way of an estimate. There was no counting mechanism on the trucks and there was no other method that was used to regularly count the bins collected. He also agreed that there was some seasonal fluctuations in respect of presentation rates, but by and large they were relatively small with the exception of Christmas and New Year. 98Mr Littlewood deposed that as part of Council's position in the 2003 negotiations it sought to get rid of 'job and finish'. This was conveyed to the USU representatives (Mr McQuillan, Mr David Bradstock and Organiser Mr Donley). It was strongly opposed by the employees and he recalled that there was strike action. Council then changed its position, 'job and finish' was to be maintained and the DARG established under the 1995 agreement reviewed and increased, and provision made for the collection of 50 green waste collections each day. That meant instead of having 100 green waste collections on a Monday, and 100 green waste collections on a Friday, there was an overall increase from 200 to 250 green waste collections a week. 99Mr Littlewood also deposed that the negotiations were premised on the basis of having the staffing and seven trucks, including two spares, to assume there would be 100% presentation. It was never a case of being "under" DARG. If there was 100% presentation then staff would collect it. If there was less than 100% presentation, then staff would have less to collect, but they were never under DARG. However he agreed that he was aware that the daily average number of bins was 55 bins short of the 1995 daily baseline measurement, and on a weekly basis 275 bins short per truck. 100He agreed that Clause 13.1 of Waste Agreement 2 provided that the collection runs would be redrawn and the intent was that the daily runs would be brought as close as possible to the 1158 figure, but that each daily collection might be more, or less, than that figure. It was his aim to not go above that mark but if you were over by 50 or 60 that was "bad luck". It was an intended maximum and not a hard maximum. The runs were drawn up and agreed by the Union, he thought Mr McQuillan and possibly Mr Donley would have been there, and then put in place. It was not taken to the JCC. 101He agreed that the number of bins could have gone up (through additional bins being issued) or down over the life of the Agreement but they were still expected to complete the run. It was never intended that the formulas would just be automatic that if the number of bins on issue had gone down then pay would go down with it. He agreed there was also never any intent to reward staff for doing less time and if they had to do significantly more time, then that would be taken into account. 102He went on to agree that the garbage staff were effectively already being paid (the productivity bonus) to collect a greater number of potential bins than the number of bins collected and that for staff to do the equivalent of 275 bins brought them up to where they were already being paid and that if they wanted more pay then the productivity had to increase above the previous baseline, not just increase above existing levels. However he said that the issue of 275 bins was never actually the subject of debate in the negotiations. 103Mr Littlewood said that it was also never part of the negotiation rationale of the Agreement that volume or weight were discussed, the only thing that was discussed was "collections", and this same concept of "collections" was used in clause 13.8 of the Agreement. It was about "the collection" not about the volume or weight. 104Mr Littlewood also deposed that the negotiations and their outcome were never about presentation rates. Staff and equipment had to be available to meet a 100% presentation rate. 105Mr Littlewood deposed that an integral part of the Agreement negotiations was to make sure that there were two spare trucks available to be used in the event of schedule maintenance or unscheduled breakdowns, they were also equipped with bin lifters. The men collecting the household garbage went from having 5 crews doing this task on 5 days a week to effectively 4 ½ crews doing this task 5 days a week. There was an obligation to pick up 50 collections as set out in Clause 13. 106He agreed that there was no reference in the Agreement to Council providing a certain number of trucks to perform garbage services but that it was known that you needed 5 trucks and two spares and that was what was agreed to through the negotiations. He did not consider that was an issue that needed to be taken to the JCC, it was negotiated directly with the garbage staff. 107Mr Littlewood deposed that it was a change in Council's approach, with the expansion of the use of MGBs for green waste collections, that created the difficulty as the cleanup truck did not have bin lifters and could not be utilised on 5 days a week to collect green waste. The Council through expanding the green waste service collection needed to make more collections and wanted to have the utilisation of a truck with the lifting mechanism. There was a negotiated process (which could have been better documented) at Council's request that the household garbage collectors gave up one truck so that it could become dedicated to the collection of green waste. The trade-off for that arrangement was that it was agreed that these workers would be relieved of the obligation to collect green waste one day a week. He considered that Council was in front on this arrangement as there now a dedicated truck for the collection of green waste 5 days a week, which could well result in excess of 50 collections a day. Again it was negotiated directly with the garbage staff and the change was not taken to the JCC. 108Mr Littlewood also deposed that by giving up one truck, any working day could be potentially longer for the household garbage collectors. They had agreed that in the event of a breakdown, or other difficulty on any of the other runs then they would assist to finish a run. He recalled these negotiations being carried out at the local level and could not recall any USU Organiser, such as Mr Donley, being involved in that process. The green waste collection truck's staff were paid in accordance with the Agreement. Also by giving up the green waste collections on Monday and Friday, the cleanup truck was then operating a 5 day week service as a cleanup truck. This change concerning the development of the green waste truck was well and truly after the Agreement was negotiated. 109Mr Littlewood deposed that there was no confusion or controversy between the Council and the USU in speaking in terms of "collections" as this was the language that had been used in the workplace for a number of years and this was the language that went into the 2003 Agreement. There was no need to give it any special definition just as there was no definition of "DARG" and he was not under misapprehension or confusion as to what it constituted and no-one from the Council suggested to him that there was any ambiguity or confusion as to what constituted a "collection". There were no discussions about using MGBs for green waste collections as part of the negotiations of the 2003 Agreement or the maximum allowable volume of green waste being used as a basis to identify the number of MBGs a day of green waste to be collected. Any of the 5 garbage trucks were collecting either a bag or a bundle or in limited circumstances a bin. That would occur on 5 days a week. 110There was also no discussion, or thought in his mind, of moving to a daily designated run based system. Essentially the two geographical areas for the collection of ticketed green waste previously collected on the Monday and Friday were divided into 5 areas, within their normal geographical area, on a half day and taking about 2 1/2 to 2 3/4 hours to complete. The collections still had to be booked. They also found they were getting a full complement of the 50 collections and it was a growing industry, that was the problem they had with it. 111Mr Littlewood also agreed that each green waste collection zone covered about 2 1/2 recycle runs, was about one tenth of or a bit less of the local government area, and garbage staff would cover in that half day a greater area than they would cover on a normal full day run. 112He agreed that each bundle might include branches, tree limbs, prunings from bushes, grass cuttings, untreated timber and a range of different sorts of items; that the bundles might be tied up with twine or thine rope, and that there might also be material placed into cardboard boxes or sacks or various other forms of containers. He also agreed that a single bundle could be quite large and bulky within the restriction of being up to 2 cubic metres, and it could be quite hard to handle. He accepted that the bundles had to be physically lifted and carried from the foot path (or from the inside of the property where Council actually required such to be placed) to the truck and that might require a staff member to make a number of trips. 113However Mr Littlewood also agreed that he was not aware of any detailed studies or audits on the comparative time between collection of ticketed bundles versus green waste collection by MGB. 114Mr Littlewood also indicated that the collapsible bag had became a common sight across the Council area after they were issued in about early 2003. He accepted that maximum size of the collapsible container was 115 litres (going on to confirm its description) and that they also had to be carried from the footpath etc, to the truck. 115He accepted that the volume of green waste under the system in place as at 2003, and in early 2003, was potentially much larger than the volume that would be placed in the MGBs now in use. He also accepted that it was possible that green waste MGBs might be presented only partly full. He also accepted that if a resident took the trouble to phone Council and book a ticketed collection then they were highly likely to put their bundle out with a presentation rate of nearly 100%. 116Mr Littlewood deposed that neither Mr Swilks nor Mr Wady were involved in the negotiations in 2003. The 2003 Agreement was internally reviewed and he was informed it was signed by the General Manager. 117He was aware that from about December 2003 onwards the garbage staff ceased to do any green waste collection and therefore no longer had to do a task that was taking each crew member 2 ½ to 2 ¾ hours each week. 118Mr Littlewood moved to a different area of Council. He was aware of a discussion about the utilisation of MGBs for the collection of green waste but it had not been finalised while he was there, and it did not involve issue of an MGB to each resident, but a limited issue to those residents who expressed interest. He had left Council's employment before MGBs were introduced for the collection of green waste. 119He could recall the trial, but it was on a small scale and utilised the clean up truck which did not have bin lifters which would have meant the bin being lifted up to at least waist height. The 5 garbage trucks and two spare trucks had bin lifters at the rear used for the collection of household garbage. He could not recollect whether the issue was taken to the OH&S Committee. 120Mr Littlewood also indicated that in relation to the 2003 negotiations he was acting pursuant to directions from his supervisors, had not been directed to bring HR into the discussions, nor had he ever been given training on what he should or should not refer to the JCC. 121Mr Connor confirmed that as a result of the 2003 Agreement there were 5 crews with each crew required to collect 50 green waste collections on one day each week. This process went on for approximately 9 months but needed to be fine-tuned as at some stages they were travelling significant distances to go from one green waste collection to the next. That was resolved over time and the work conducted quite efficiently. The task was then taken from them when Council introduced a specialist green waste truck for the collection of green waste. 122Mr Connor indicated that when they were doing the 50 collections they could be going from one end of Marrickville to the other, tickets were on the supervisors table, sometimes there were 50, sometimes less, depending on what time of year it was. You'd have to look up the area and pick up the individual bins or whatever was there. They were not within their normal run and they could be all over the place, requiring them to drive potentially throughout the local government area. He agreed it could take 2 ½ hours, sometimes longer. Sometimes they had to get in touch with the supervisor because they were over what was supposed to be there. 123He agreed that there were discussions about using the spare truck, he could not remember the full extent, the Delegate Mr McQuillan brought it back to them and they didn't have to do green waste for a certain amount of time as they had a truck to do it. It was an agreement reached between Council and the staff. 124Mr Moody's evidence concerned his brief involvement with negotiations for the new agreement in late 2006. He could recall a meeting involving about 15 waste services staff (from each of the three waste units) and a white board being used. He understood they were being briefed on Council's proposal to have one agreement covering the three services (garbage, recycling and green waste). He did not recall any discussion about any change to the collection of green waste or any discussion about conversion to 250 bins. He did not agree to anything and had no authority to do so in any event. He confirmed the USU had strict guidelines about how agreements and variations had to be approved. While he had attended meetings in the Muster Room (which was where meetings with members took place). He could not recall attending any meeting about changing the method of collecting green waste, or voting on any such proposal 125He had no involvement with negotiations after that time and had not been back to Marrickville Council since that date. 126Ms Raffan recalled attending several meetings in 2007 concerning the contents of proposed Agreement 3. The negotiations covered a wide range of overlapping issues including issues regarding recycling as well as green waste. She recalled that the members voted against Council's proposals concerning collection of green waste at a mass meeting. She drafted the 27 January letter to Council from General Secretary Ben Kruse advising of the rejection of the proposed changes (see Background and Chronology above). She could recall the Delegates and Mr Donley being present, as well as Mr Swilks and Mr Wady. 127Ms Raffan had made diary notations about attending meetings and had notes made during the 18 May meeting she attended which was a separate meeting with the garbage and green waste. The notes were attached to her witness statement and further clarified during the hearing. They were a summary. There was no reference to any agreement with Council's proposals and she did have the word "arbitration" written down, with an arrow pointing to the words "670 containers instead of 250..." 128She also had no recollection of Mr Swilks raising the prospects of any employees suffering a pay cut and that would have been a matter she would have recorded. If it had been raised she would have been obliged to speak to her manager. She could recall no other meeting where anyone from Council alleged that there would be a pay cut. 129She could not recall 'arbitration' being discussed. That was her notation as there was no consensus was reached. 130The notations about 'council determined below' she imagined she copied from either a whiteboard or overhead projector. 131All she could rely on about the meeting were her notes. She had attended many meetings on lots of matters but she was not clear on specific meetings. 132She did not recall Mr Swilks saying words to the effect of "look you guys haven't been doing what's required for under the agreement for years". Nor did she remember anything being said about "getting a free ride". 133Ms Raffan said she was not present at the meeting of 21 May 2007 in the Muster Room and her diary noted that she was on a rostered day off that day. 134Ms Raffan deposed that she was not in any position to agree to any changes to working arrangements for green waste services. She was guided by the Delegates and the members regarding any proposed Council changes. In attending mass meeting she did not have any authority to agree to any proposal as the USU had its own processes for agreements and proposals agreed between the Council and the USU. This involved consulting head office as well as the membership. 135She confirmed that Mr McQuillan was the waste services Delegate and Mr Paul Mazotta the Head Delegate and that she hoped they knew they could call on her if she was needed. She could not recall either of them raising concerns over the next two to four weeks (following the meeting on 18 May) about green waste because they were all three attending other meetings. Mr Mazotta attended most meetings with her and attended a number of times but not necessarily Mr McQuillan. If they had concerns they had the opportunity to raise them. 136She confirmed that she attended a meeting on 4 June 2007 to discuss the Recyclers Agreement. Her notes made no reference to any agreement with the proposals by Council. She reiterated that she did not have authority to agree to any proposal and reiterated the process that had to be followed within the USU. 137She recalled that there were concerns raised by the recycling workers including that by lengthening the finishing time to be operating during periods of heavy traffic (which they had not previously been doing) this would cause OH&S issues. 138Ms Raffan said she was involved in discussions up until August involving green waste and recycling but could not remember the subject matter or why the topic was being discussed. She agreed that from the content of the letter from Mr Kruse to Ms Nay of 20 September 2007 that discussions had continued with Council on the Green Waste and Recycling Agreement. 139Mr Donley confirmed his involvement in a meeting with Ms Raffan, the Delegates and Council, that agreement was not reached and the letters sent by the USU (see Background and Chronology above). He also confirmed that as late as September 2007 there was still no final agreement concerning the Recyclers and confirmed the USU letter of 20 September 2007 (see Background and Chronology above). 140Mr Connor could remember a further change in their duties concerning green waste in 2007. One morning the garbage crew were assembled in the recreation room (the Muster Room) at about 4.50 am, as was standard at the start of each shift. This particular morning Mr Swilks and Mr Wady came in to see them. Mr Wady often came to see them at the start of a shift but it was unusual for Mr Swilks to attend especially at that time of day as he would only attend if there was something important, he had some paperwork with him when he came into the room. 141Mr Connor could not remember the exact words Mr Swilks said but he was saying words to the substance and effect of: We've done a bin count operating on a 90% presentation level which is the norm for every Council and you are under DARG. Unless you take on 200 to 250 bins each week you could probably $100 a week. 142Mr Connor said that Mr Swilks also made the point that he had the power to cut their pay, and went on to say words to the effect of: ...the figures on the database and null and void. My figures are on 90% presentation. All Councils abide by this same rule. 143Mr Connor maintained that, from memory, Mr Swilks said "it could reduce your pay by $100 each". He hadn't done the figures yet. He said "because you're under DARG and not collecting bins you're supposed to collect there could be a reduction in pay. He just presented it to them and this was before things went any further, and if they refused to collect, it could possibly go down that track. 144He agreed that Mr Swilks might have said the going down the track of discussions was under the productivity clause in the Agreement. He could not remember verbatim. He also agreed that Mr Swilks didn't say "if you don't agree we're going to take $100 out of your pay starting next week", but the implication was there. 145They spoke to Barry (Mr McQuillan) and to most of their knowledge the implications were there, and they were under DARG and they could lose money. As far as he knew they all voted, they were given a couple of days to vote, they talked about it and said "we've nowhere else to go" and they were under DARG and had to live up to their original agreements of 1150 bins so that was what happened and they did 200 to 250 bins to make them up to DARG. 146The delegate at the time was Barry McQuillan who was a grassroots delegate and like Mr Connor and many of the other garbage crew had limited formal education. 147Mr Connor was not aware whether or not Mr McQuillan had discussions with the USU, he really didn't know at that time. He was more experienced with union matters than they were, that was why he was the Delegate. 148He agreed there was a choice, but through their financial concerns and worries about what might happen, they had no choice but to go that way. 149Mr Connor said there was internal discussion among the group and the substance of that discussion was that they did not want to do it but could not face losing their money. They had commitments based on what they were earning and it was agreed to collect the 250 bins. Mr Connor had had dealings with Mr Swilks throughout his working life and he knew he could be very determined as a manager and Mr Connor considered that he was in a position where there was virtually no choice. As he understood the position it was "take on the additional bins or face losing money" He could not afford to lose money. 150Mr Swilks gave them a few days to think over the option and a few days later they decided amongst themselves that as they had no choice they would have to agree to the proposal. At the time they decided that there were only about 15 to 20 of them present, with some garbage crew being away, or on leave. He did not believe there was a USU Organiser present. Mr McQuillan informed Mr Swilks of their decision. 151The change was implemented approximately 3 weeks later and he recalled a meeting at which maps were distributed. They had already agreed to the change as the alternative was to accept a reduction in their pay. 152Mr Connor could not recall any occasion in May 2007 where he attended a meeting in the training room and there was a presentation by Mr Swilks using a white board about the collection of green waste under the Agreement and Council's proposal that the garbage staff collect 250 MGBs. If he had been present he would have recalled such comments and he was sure that any Delegates present would have reacted strongly to any such comments. 153Mr Mulholland deposed that for a time prior to 2007 regardless of the words of Agreement 2 they were not collecting green waste. Some time in 2007 they were informed by Council that they were not meeting their DARG in accordance with the Agreement. They were told in a meeting in the Muster Room by Mr Swilks words to the following effect: Council staff and Union Delegate Barry McQuillan have carried out a street count of garbage bins presented for collection. The count indicates that garbage staff fall short of their required DARG. Under the Agreement we can reduce your pay or, instead, you can start collecting 200 to 250 green waste bins to make up the DARG. 154Mr Mulholland deposed that at the same meeting, Mr McQuillan, the Delegate, said words to the effect of: We have to make up a shortfall in the garbage DARG and we can do that by completing 200 to 250 bins on our half days. 155Mr Mulholland said that as a Union member he considered that they needed to trust that Mr McQuillan, as their Delegate, was giving them correct information. What was said was not questioned as it was coming from a trusted Delegate. He also indicated that the Delegate was their "first port of call" and he believed Mr McQuillan would have approached the Organiser if there were any concerns with what was done. They accepted Mr McQuillan's recommendation based on their trust and faith in him. Mr Mulholland was not involved in any direct discussions as he did not become delegate until 2008. He also did not study the Agreement at the time. 156He could not recall if there was even a vote amongst the members as ordinarily would have taken place when agreements were being made or changes to working conditions were proposed. 157He confirmed that the motivating factor in deciding to vary the previous arrangement was to maintain their wage at the level it was at that time. 158It was not until later, after Mr Mulholland consulted the Agreement and the database records, that he realised they were not actually under DARG and that the Agreement did not refer to actual collections. They were over DARG. This was based on the email sent on 17 August 2009 from Mr Swilks to Ms Callinan and copied to Mr Mulholland. 159Mr Mulholland maintained that the DARG for the garbage consisted of 5 trucks collecting 1158 MGBs each day over 4 days and equalled 23,160 bins. On one day a week 5 trucks on a half day run were required to collect 660 garbage bins being 3300 bins, with a total number of bins required to be collected of 26,460. Yet the Council's own records as set out in the email clearly showed that the maximum potential number of bins available for collection, as far back as 2004, was in excess of those figures. 160Mr Mulholland said that during his time at the Council whenever any issues and matters relating to the working arrangements of the waste services crew it was automatic to refer to the Marrickville Council Waste Services Agreement No. 2 (the Agreement). It was always used by him after he took on his role as the USU delegate in 2008. 161He said that the area of contention in the Agreement was what constituted a "collection". As far as he was concerned, going back to the wording of that the Agreement, a collection referred to 50 bins. It had never referred to weight or volume. 162Mr Mulholland agreed that going out and doing 50 actual collections using the run based system rather than a ticketed system would only take in the order of 20 to 30 minutes, and if confined to fifty actual bins might only take 10 to 15 minutes. He agreed that it would be a variable number and also there would be seasonal differences. In winter it might mean 20 to 25 actual bins done in 10 minutes or so, and in summer possibly 30 to 35 bins. He maintained that the figure could well be 50, and agreed that in his experience of collecting (never having participated in a bin count) you would not get 100% presentation in summer. 163Mr Mulholland also said he had never agreed with the method of actual presentation of bins in line with Agreement 2. When contractors were brought in earlier in the year (2012) to do a street count he was asked to participate but chose not to because that would be acknowledging that method of count which was not relevant to their current agreement. 164It was his understanding that from the time Agreement commenced operation on 5 May 2003 until December 2003 they were doing 50 "tickets". A spare truck then started doing the run in December 2003 and the garbage crew stopped collecting green waste on their half day runs. 165When he commenced with Council the green waste was mainly either bundled or in bags (a cardboard like container referred to as "a bag"). It was not the equivalent of 2 cubic metres. There were some bins in circulation, but not in a comprehensive way. The number of bins distributed by Council over the years had increased significantly. 166He also maintained that when they designed the runs they did not take into account the development in the area which had obviously had a dramatic impact on the number of bins, from the original 100 green waste bins from the highest users (on which the trial was based) the number of bins had now increased to over 17,000. 167He agreed that between 2004 and 2007 the actual geographic runs pretty much stayed the same with minor amendments mostly undertaken at the request of staff. He also agreed that the dedicated truck was covering the equivalent of three recycling runs rather than two and a half. 168Mr Mulholland also maintained that in some circumstances, depending on the volume placed out for collection, they may have needed to tip more than once in the working day. Council had also utilized the spare truck belonging to the garbage run for the trial green waste collection and when there was a breakdown, the lack of a spare truck impacted on 'job and finish' which was a core element of the Agreement. Also by utilising three permanent employees from the garbage crew, garbage crew core numbers were reduced by three. 169Mr Mulholland confirmed the geographic area maps for the runs as attached to M Wady's statement (Exhibit 35-OJ12), and was taken through each map which had been shaded to show the zone the waste staff were being asked to cover on the half day run in 2007. He agreed that presentation levels on a seasonal basis would be the same whether it was picked up by the dedicated truck doing a full run or garbage staff doing a half day run. 170He agreed that the half day runs had been revised and rebalanced by Mr Wady in July 2011 (Exhibit 24) and that none of the current runs were any larger than the runs in 2007 and some had been substantially reduced in geographic area. 171Mr Mulholland deposed that in 2011 he received a document from Mr Neil Strickland - "Discussion Points" February 2011 - produced by Council for a meeting on a new agreement with the Waste Delegates and the USU. He was concerned the document did not accurately set out the history of the circumstances concerning green waste and garbage collection. He was also concerned that there had been an element of exploitation of workers when compared to the Agreement. They had lost the use of a vehicle with the change that occurred to green waste and this made for a longer working day in the event of a breakdown or some other difficulty. 172Mr Mulholland was satisfied on review that it had been established that there never had been a variation to Agreement 2 and it remained effective. He did not accept that to collect up to 250 green waste bins per day was the equivalent of 50 collections. The truck that was taken away from them was never returned. 173He did not know how many green waste bins were collected on each run. There had been suggestions that it was as high as 400, and Council now maintained that it was in the order of 250 bins. 174Ms Callinan became the Organiser for the Council Organiser in 2009. She was not involved with negotiations in 2007 and had no knowledge of what direct discussions may have occurred in May/June 2007 concerning green waste collection. She was aware of the current controversy concerning green waste collections and that from Council's database over 16,000 green waste bins have been distributed. 175She deposed that in discussions with Council, particularly through their representatives Denny Groth and Elaine Keenan, Council had sought to advance an argument that there was an agreed process for the substitution of bundling of green waste to the use of bins but it had not been clearly put to her who were the parties to such an agreement or arrangement. It had been put in terms of "well they're doing it and that shows there's an agreement". In those discussions the Council had never produced any letter or document which reflected an actual agreement between the USU and the Council as to what constituted a "collection". She have not been able to identify or locate any document which reflected any agreement to amend the Waste Agreement to identify what defined a "collection". 176Ms Callinan attached to her witness statement documentation concerning Waste Agreement 3 and proposed negotiations in 2006 which had been given to her by a former USU Delegate, Mark Devine, who told her it had been provided to him as part of Agreement negotiations. Ms Raffan had advised that she did not prepare the document. 177Ms Callinan deposed that she had never seen any document which reflected any agreement by the USU that what constituted a "collection" could be determined by reference to a theoretical maximum green waste bundle collection of up to 2 cubic metres and using simple mathematics by reference to the size of the bin to justify the notion that collections could be interpreted to mean 200 or more bins. 178She had searched the USU's industrial files and when she took over in 2009 she was handed an older file from the previous organiser and searched through that. She had taken over from Alan Dixon who was the Organiser for one year, and took over from Mr Parker who followed Ms Raffan. She had not seen the 17 May 2007 letter to Mr Kruse concerning the then negotiations. 179She had been informed that the members were being directed to collect in the order of 250 green waste bins a day and this was allegedly pursuant to the Waste Agreement. In particular they were meant to be collecting 250 bins by reference to Clause 13.2 of the Agreement with Council putting the position that such a number of bins reflected 50 collections. 180Ms Callinan said she only became aware in around December 2010 that they were collecting 250 bins on the half day run. She did not at that stage take any action to lodge a grievance or dispute. Green waste had been raised with her previously but there were more contentious issues to be dealt with. She did not take any steps to clarify the situation as no-one was telling her it was serious enough. 181She had previously written to Council in 2009 because the garbage employees no longer wanted to do green waste. At the time she found out that would mean they would lose their Saturday overtime so no further action was taken and other issues arose. 182In relation to the figures produced by Mr Swilks concerning the bin audit in June 2011, Ms Callinan maintained that as this bin count had been done in winter it did not take into account the increased loads in summer. She did not believe this provided an accurate count of green waste collection. 183When taken through the maths of Mr Swilks' calculations she agreed that his calculations were potentially higher, not lower. 184She also indicated that contrary to Mr Swilk's statement, Council should have been providing database information each 6 months in accordance with the Agreement as a matter of course, not 'upon request'. 185While she agreed with Mr Wady's estimation of the current average load of green waste she said there were some trucks that needed to do two loads. The half run of garbage should only be one load. Due to the removal of the second spare truck some trucks were now doing two loads garbage before having to wash out their truck and then go on a waste collection on their half day. She also believed the average loads, that is greater volume and therefore greater weight, were likely to increase over coming years, this was based on information from her members. 186She had no knowledge of such incidence of two loads being restricted to one truck because the driver wished to take out a truck that tipped more frequently even though he had been offered other trucks. She could not say whether the other trucks ever had to do two loads. 187She was aware that since the readjustment of the runs in July 2011 that even the one truck which previously did two loads no longer had to do two loads on the half day run. That was the main reason for evaluating the runs. She also agreed the issue of washing the truck did not arise every day of the week. 188Ms Callinan also considered that any green waste collected whether by agency Council labour or permanent employees was part of Council's green waste services and there should not be a distinction between the two. 189In her meetings with Council representatives, such as Mr Swilks and Mr Wady, they had never referred to any meetings in May 2007 as constituting agreement by the USU to a variation to the Agreement. 190Ms Callinan deposed that the proposed changes by Council undermined the core principle of 'job and finish' times for the waste services employees. Also changes such as removal of the spare truck as well as the increased collection requirement would result in the employees having a later finish time in order to carry out the work. 191She also generally confirmed the evidence of Mr Kelly and Mr Donley as to the authority and process necessary in negotiating agreements within the USU. 192She also maintained that any changes to industrial agreements or working conditions should also come to the JCC. She agreed that the Delegates were on the JCC and that if a Delegate had a concern about any issue they could raise it at a JCC meeting, but in general business as long as it was not the subject of agreements. She also agreed there were other avenues for raising concerns or grievances. 193Ms Callinan agreed that following the dispute proceedings in 2011 that new run maps were drawn up by Mr Wady which involved changes to the green waste runs as well as some changes to the garbage runs and that the new runs were agreed and further amended. 194She also agreed the run changes were not taken to the JCC. It was a process that came out of the conciliation. She agreed it changed work practices and the amount of work people had to do and that at the time she did not think it necessary to get that agreement formally documented in writing. 195Mr Wady deposed extensive evidence as to the background of green waste collection as well as garbage collection at Council. That has relevantly been summarised in the Background and Chronology above. He also attached extensive documentation concerning the material distributed to residents advising about green waste, relevant Council Meeting minutes, Reports to the Technical Services Committee and the PowerPoint presentation documents concerning Council's proposals in the 2007 negotiations. 196 He also explained the way in which the fortnightly recycling MGB collections alternated with the green waste MGB collections, the runs and the ability of households to still ring up and book an individual additional collection (either green waste or the type of household material collected by a clean up service) on a ticketed basis, how that was allocated and when collected. They did not get many green waste bundles through that service, maybe 10 bundles across the whole collection zone which might increase to 140 at the peak of summer. It was not a service widely utilised. The green waste truck which collected the green waste MGBs would also collect these ticketed bundles. 197Mr Wady also confirmed the provenance of a photograph taken on behalf of Council (approximately mid-December 2011) in preparation for this matter (Exhibit 36) which is intended to demonstrate what would equate to 2 cubic metres of green waste under a booked collection in comparison to a 140 litre MGB and a 240 litre green waste MGB placed behind that loose bundle. The bundle was actually booked at the time. It was not manipulated by Council. 198He also deposed that the collapsible bag referred to in the trial rollout of green waste MGBs in 2003 could best be described as a plastic box with handles. The plastic material was slightly flexible and had 'crease' lines which meant the whole box could be folded up for easy storage. These receptacles came to be known as a "bag", he thought because they had handles and operated similar to a big, strong plastic bag. The bags had a square base of approximately 50 cm x 50 cm and were approximately 1 metre tall. 199Mr Wady deposed that In December 2005, the average number of MGBs collected per day per truck was about 911. These numbers came from a physical count which he undertook with Mr McQuillan, the USU Delegate. Mr Wady had also prepared (in around September or October 2006) a PowerPoint presentation which also included the average MGB collection counts in December 2005. 200Mr Wady agreed that the darg was 1158 bins on a 100% presentation rate but also considered that the garbage workers were under darg. However he accepted that the men could only collect what was put out, what was presented, that was not the men's fault or Council's fault. He also agreed that it was an average number, and that runs could not be organised on a practical basis to give exactly 1158 potential bins on each run. 201He also acknowledged that there were a significant number of bins were removed as a consequence of both the roll out of recycling bins and rationalisation concerning sharing of bins home unit blocks in 2001 and the re-lidding process in 2003 (garbage MGB green lids replaced with red lids), which reduced the potential number of bins available for collection and that there were less bins available for presentation in 2004.2005 and 2006. he also agreed that if there were less bins available for collection then it was harder or impossible to reach the darg of 100%. 202He also clarified the basis of the rationalisation of bins on issue to home units. 203He accepted that the PowerPoint presentation was not accurate when it said that 1158 bins was based on an "industry standard" of actually collecting 1158 bins. He had prepared the document that way because that was how it had been explained to him by Mr Swilks. 204He went on to accept that Council had been promoting the idea of being under darg in 2007, sought to persuade the men they were under darg and had to collect green waste bins to get them back up to darg. He accepted now that they were not under darg. 205Mr Wady deposed that in around late 2006 negotiations commenced in relation to a possible new agreement with the garbage staff, which was to be referred to as the Waste Services Agreement 3. Simultaneous negotiations also took place with recycling staff in relation to a possible separate Recycling Agreement. Council hoped that potentially both of the proposed agreements could be rolled up into one broad agreement with all garbage and recycling staff. Mr Swilks was the lead negotiator for the Council and Mr Wady assisted him in that role. 206Mr Wady agreed that he would have attended meetings in January 2007 if he was at work, that he was sometimes asked to draft letters which were ultimately signed off by the General Manager, and that by the end of February it was clear there was not going to be one Agreement. 207Mr Wady said he had direct interaction with the HR section of Council (or 'People and Workforce'), but no discussions about how to change or amend the working arrangements they wanted to change. Nor could he remember any discussion during the negotiation process about going to the JCC at the time. 208He stated that at that time, the garbage staff were still not making any green waste collections on the 'half day' under Agreement 2. Because those staff operated on 'job and finish', they were often effectively working a short day, especially on the half day, when they would often go home by 8 or 9 am. A clear potential way forward was to have the garbage staff start collecting green waste on their half day. 209He went on to state that because the ticketed and bundled green waste system had largely ceased and had been replaced by a containerised run-based system, there was a need to resolve what constituted "50 collections" when the collection of MGBs (and not bundles) was considered, and also having regard to the fact that a run based system required substantially less time to complete than a ticketed system as a crew only needed to do a designated run rather than travelling throughout Council's area having to collect all the tickets for that day. 210Mr Wady stated that MGBs (at 240 litres or 140 litres) were smaller than the maximum size of a green waste collection (2 cubic metres) which was 2,000 litres. Thus, "50 collections" of bundled green waste was in no way comparable to the collection of 50 green waste MGBs. He maintained the equivalent volume of MGBs could be worked out relatively easily as follows: 1 cubic metre = 1,000 litres. 2 cubic metres = 2,000 litres (2 x 1,000 litres). 1 ticket = 2,000 litres. 50 tickets = 100,000 litres (50 x 2,000 litres). In relation to 240 litre MGBs, 100,000 litres ÷ 240 litres = 416.7 MGBs. In relation to 140 litre MGBs, 100,000 litres ÷ 140 litres = 714.3 MGBs. 211Therefore, assuming a mix of both 240 and 140 litre MGBs, the equivalent in maximum volume of 50 bundled collections was somewhere between 416 and 714 MGB collections. 212Mr Wady deposed that some time shortly before 17 May 2007 he attended a meeting in the training room at the Council Depot Sydenham. Mr Swilks and Mr Brian Barrett (Director, Corporate Services) were present and to the best of his memory, in attendance for the garbage staff were USU Organiser Mr Wayne Moody and USU Delegates Mr Mark Devine and Mr Barry McQuillan. Mr Paul Mazzotta, the head Delegate for Council, may have also been present. The people at the meeting were sitting around the table (he described the training room set up) and the calculations he set out above were discussed. He clearly remembered Mr Swilks standing up and writing the figures on a white board on the southern wall of the room and recalled that Mr Swilks explained the calculations as he went. Those present seemed to understand the calculations and no one raised any objections to what was being said. 213He also indicated that the presentation which was PowerPoint presentation (which he ran from a keyboard using a clicker) was then printed as a handout and copies given to the delegates at the meeting. 214Mr Wady deposed that following that meeting, a letter was sent by Council to the USU on or around 17 May 2007. Point 3 of that letter set out Council's proposal that the garbage waste staff collect up to 250 green waste containers. 215Mr Wady agreed that the meeting he was referring to may well have occurred on the 18 May. He knew Ms Raffin was the organiser at that time but could not remember if she was at the meeting. 216Mr Wady also attended a meeting in the Muster Room on 21 May 2007 which was for all garbage staff and all supervisors. He recalled that a majority of staff were there. He explained Council's proposal for garbage staff to collect green waste as part of their half day as Mr Swilks had explained at the earlier meeting in the training room. The original proposal was that they do 250 MGBs plus any ticketed items which were within that run area. Mr Wady made a short contemporaneous diary note of the meeting. That diary note did not refer to any of the words used by Mr Swilks in explaining Council's proposal. 217He did not have any memory or recollection of Mr Swilks attending a meeting in the Muster Room in around that time. 218Mr Wady was shown the witness statements of Mr Mulholland and Mr Connor concerning their recollections of such a meeting and discussion involving Mr Swilks and a threat of a decrease in wages. He indicated that he did not remember such a meeting, said Mr Swilks came down to the Muster Room "on a rare occasion", and could not remember him coming down in that period at all. He could recollect Mr Swilks talking about doing a bin count and presentation rates, but could not remember when that was. He could not remember any reference to - if not taking the bins you could lose $100 a week. 219He agreed that people were not going to be getting anything for doing this work because of the fact that the work wasn't being done at that stage when they had previously entered into an Agreement. There was discussion about potential consequences of the Agreement being null and void and that they may have to look at alternatives to what the Agreement was, and that maybe that the Agreement needed to be terminated. He thought that discussion was "way back" in 2007. From what he remembered that would have been that they reverted to Award conditions and potentially that could mean a decrease in wages. 220He deposed that on or around 22 May 2007, Mr McQuillan came to see him in his office at the Depot and they had a conversation with words to the following effect: McQuillan: "Hi Oly. Following our meeting yesterday, I've talked to the men. Can you prepare the run maps so they can see what they're being asked to do? If you can do that, I think it will get this over the line with the men." Wady: "Yes, no problems. I'll get onto it, though its going to take a couple of weeks." 221Mr Wady accepted that this indicated that it was still not agreed. 222Mr Wady and Mr Lyle Thomas, one of the supervisors, then developed proposed run maps over the next one to two weeks During that time they both had a number of conversations with various drivers about the maps and the proposed runs. This was his usual practice when drawing up proposed maps. They purposely developed the maps so that they were streamlined and covered a compact geographic area. That is, they were designed so that the truck could pick up bins in a number of streets which were either connected or were in close proximity to each other resulting in a much quicker and more efficient way of collecting bins, rather than the truck needing to drive greater distances around various parts of the Council area in order to reach specific streets which weren't necessarily connected or close to each other. 223The maps were designed so that there was roughly a maximum of 250 potential green waste bins on each run. Mr Wady noted that based on their calculations, a maximum of at least 416 bins was quite legitimate. 10 different maps were prepared with an "A" route and a "B" route for each day of the work week to accommodate a fortnightly service. The "A" route would be done in the first week, and the "B" route in the second week. 224Mr Wady and Mr Thomas met with the staff again in the Muster Room on or around 4 June 2007. He confirmed that no USU Organiser was present. They were all standing in a circle with the men in their crews (that is, a driver and two loaders) and the proposed run maps were handed to each crew and explained. There were no objections to the runs that had been proposed. Mr Wady could not recall the exact words used, but they were to the effect of: These are the new maps for the green waste runs. This is what we're planning on doing. Does anyone have any questions? Anyone got any comments? Are we right to go with these?" 225Mr Wady said that the men did not say much in response (as was often the case), could not comment on why that was, but said there was a general discussion that they agreed with what had been proposed and were willing to do the work. He also made a contemporaneous diary note for 4 June 2007. 226Mr Wady deposed that from that time on, the garbage waste staff commenced collecting green waste MGBs on their half day run in accordance with the run maps using Truck No. 078 (the other spare garbage truck) or they could use the truck that they used on their morning garbage run provided they washed out the back of the truck first. In practice, that meant that on one particular day of the week, each of the five garbage crews worked a half day on the day they collected garbage MGBs which they then tipped at the Rockdale Transfer Station. They then returned to the Depot, picked up Truck No. 078 (or they washed and used their own truck) and went out and collected green waste MGBs in accordance with the maps. They then tipped the green waste at Rockdale Transfer Station, returned the truck to the Depot and then went home. 227Mr Wady deposed that in practice, it was vastly easier, quicker and more efficient, to collect up to 250 green waste MGBs on a properly designed run map, rather than driving around to different locations within the Council area in order to pick up specific ticketed green waste bundles (even if those tickets had been arranged in as efficient a way as possible). 228He went on to state that during the period June 2007 to May 2011, while the garbage staff were collecting green waste on the half day run, he estimated that: Collecting green waste on a typical half day run would have taken around 1.5 hours; Collecting garbage on the other part of the half day would have taken approximately 2.5 to 3 hours; and Collecting garbage on a full day run would have taken approximately 5.5 hours (which would mean about a 10:30 am finish). 229Mr Wady also stated that as of May 2011, there were around 17,054 green waste MGBs on issue to residents. There would have been a small increase in the total number since then. 230Mr Wady maintained that the maximum green waste collected on an "average" half day would easily fit in one "load" in any of Council's trucks meaning that the entire run could be completed in one session, without the need to tip the load half way (involving extra driving time from the run's location to the tip, and back). During the half day garbage runs, the trucks also typically did not require tipping during the run. They only required tipping at the end of the run. 231Mr Wady deposed that at this time (June 2007 onwards), the dedicated separate green waste crew continued to collect green waste MGBs in the green waste truck each day of the week. The green waste crew collected the majority of green waste (having five full days to do so, versus only around the 5 half days that the garbage workers had to do so). In around late 2007, the use of collapsible bags for green waste collection ceased. This was for a number of reasons including that the supplier stopped producing that particular container; there was a much lower 'take up' by residents of the collapsible bin as compared to the MGBs, and there were potential manual handling issues in that the bags were often quite heavy, especially when filled with lawn clippings or damp material. 232Mr Wady deposed that over time, there were also various changes in the members of the green waste crew. He recalled that, at some point in time, (but in any event before late 2005), there was a change in the staff involved. No garbage staff were involved in the provision of the green waste service. 233Mr Wady also deposed as to the move from directly engaged staff to the use of casual agency staff which commenced in around 2007 when one of the three staff members decided that he would prefer to not collect green waste anymore. One reason for this was that a typical green waste run would generally take slightly longer to complete than a typical garbage run. At that time, Council engaged agency casual workers from Adecco to drive the green waste truck. The two other Council staff employees also ceased collecting green waste, one moved into an acting supervisory position and the other sustained an injury and could no longer work on the green waste truck. At that time, a decision was made by Council that it would engage Adecco to staff the two remaining positions with agency casual labour. 234Mr Wady also stated that the stand by drivers had also been placed on a roster to drive the green waste truck on a two week basis from the beginning of 2008 (after an approach by Mr McQullan about the driver of the truck not getting the half day the same as the other garbage workers and requesting that the stand by drivers be involved). They received higher duties when they were rostered to drive as they were acting up as drivers. 235However, that system only lasted for around two months. At the end of January 2008, Mr Wady was approached by USU Delegate Mr Brian Mooney and told by him that the men weren't going to man the green waste service anymore. When Mr Wady asked what this meant (stand by drivers or all the garbage workers) he was told that it was everyone. Mr Wady asked him if he understood what the repercussions could be, going on to indicate that they could potentially put the whole service at risk, Mr said he knew but that was their stance, they understand all of that and said they weren't going to do it. Mr Wady also made a contemporaneous diary notes Mr Wady about this approach (29 January 2008). 236Mr Wady informed Mr Swilks and the Director, Mr Neil Strickland, of what had occurred and then arranged for agency casuals to man the green waste service in the short term. Ultimately, because the permanent garbage staff did not want to be allocated to the dedicated green waste truck, Council made a decision (communicated to Mr Wady) that Council would continue to engage the agency casuals to perform the green waste service going forward. At around the end of January 2008, Council's green waste service was entirely staffed by agency Council labour. 237Mr Wady clarified that the position of the permanent garbage staff related to the Monday to Friday green waste service conducted via the dedicated green waste truck. It did not relate to the garbage workers' green waste collections on their half day run. 238Mr Wady confirmed that from January 2008 to May 2011 agency casuals performed the Monday to Friday green waste service and Council's garbage workers collected green waste MGBs on their half day run. 239Mr Wady was also asked a number of questions concerning the use of the spare truck, the issue of repairs to trucks, the nature of such repairs and the consequences for completion of garbage runs. 240In May 2011, the USU informed Council that the garbage workers would no longer collect green waste on their half day run. Mr Wady was aware that Council made a decision that that from that time onwards, the green waste half day run collections would also be performed by the agency casuals who were already performing the green waste service. That meant that they would perform their full days' work manning the green waste service, in addition to collecting the half day run green waste MGBs, each day of the week. 241Mr Wady deposed that in or about July 2011, an analysis was done of the green waste collections based on volumes over 10 days which showed the number of bins collected each day and the weight. Bin numbers ranged from 425 to 757 with bin weights ranging from 12.12kgs up to 24.49 kgs giving an average weight of 18.61 kgs per bin. The document he prepared and attached to his statement also set out Council's position as to the translation of 50 collections of bundles into an estimated weight and volume for either a 140 or 240 litre MBG. 242Mr Wady deposed that as part of the return to work in July 2011 (following the Commission's recommendation), Council agreed to examine the runs and rebalance the runs to remove any potential discrepancies between some half day runs being potentially light, and others being potentially heavy. 243Mr Wady indicated that he had never had any particular training in the use and operation of the JCC and had never sat on the JCC. 244Mr Swilks generally confirmed the history of green waste collection prior to 2007 as set out in the Background and Chronology above and as also indicated by Mr Wady. He was also taken to that in some detail in cross examination. 245He also confirmed that there was an error in the figure for the number of bins in service in 2004 as set out in the 2009 email to Ms Callinan and corrected the figure (see Background and Chronology above). 246He also confirmed that in 2001, and thereafter, steps were taken to withdraw a certain numbers of bins from service due to there being a change of service. He acknowledged that meant a reduction in the number of bins available for collection and was not a criticism of the workers and their performance of their duties under the 2003 Agreement. It was a calculated decision of the Council. 247Mr Swilks did not completely agree with Mr Littlewood's evidence that the "bag" was an alternative to the "bundling system" saying that this was partly correct, with the other alternative which existed up until December 2003 being an MGB. Prior to about early 2003, the "bag" was not an alternative to the bundled system. 248Mr Swilks confirmed that in or around December 2003, a new "run based" green waste service commenced operating on regular runs, based on specific routes around the Council area and operating in the same way that a typical garbage collection service would operate. From the residents' perspectives, this new "run based" green waste service operated fortnightly on the alternate week to which their recycling MGBs were collected. 249Mr Swilks also confirmed that from that time onwards, while technically, the "ticketed" service still existed, it was not actively promoted by Council nor generally used by residents. 250Mr Swilks also did not agree with Mr Littlewood's suggestion that there was no use of MGBs in relation to green waste collection before 2005. It was his distinct recollection that MGBs were in use for the collection of green waste over the course of 2003 and in 2004. 251Mr Swilks was not involved in the negotiations for Agreement 2 in 2003. He agreed that the darg in 2003 arose out of local negotiations with Mr Littlewood rather than as an industry standard and that the figure of 1,158 bins was based on 100% presentation, being the theoretical number of bins that could be collected on each run and the darg was not based on actual numbers collected. 252He accepted it was then misleading to say in 2006 that they were under darg and that he created the concept of being under darg, it was what he knew to be the industry standard and part of the discussion throughout the duration of the negotiations. He did not see that as false at that time, but understood that now it had been brought to his attention. 253He denied promoting this concept as a way of misleading the men in 2007 and having them adopt a different position. He thought it was correct at the time. He agreed he did not contact Mr Littlewood. 254He agreed that he had been trained in the concepts of negotiating in good faith and good faith bargaining, his training had not been formal but had been developed over the years with the mentoring he had received from senior engineers on the job. Assistance from HR was always available in relation to negotiations in 2007. He was not the lead negotiator at all times, was not doing all of the talking, at most meetings there were two directors present with him as well as Ms Charu Hurria from HR. 255Mr Swilks could not remember ever being told the approach he was adopting might be construed as not good faith bargaining. He agreed that he could now see that he was starting off on a false premise with employees. 256Mr Swilks confirmed that in mid 2007, as part of negotiations with the USU and staff in relation to a potential new enterprise agreement (or two enterprise agreements - one with garbage staff and one with recycling staff), discussions took place as to whether garbage staff would start collecting green waste. 257He also agreed that what was being proposed, which included four trucks collecting instead of five, meant a much longer day for the workers and that 'job and finish' would be substantially compromised from what had been the previous status quo. 258He also acknowledged that there had been a letter from the USU dated 25 January 2007 making it clear that Council's proposals were rejected in relation to the household garbage collectors, there had been a unanimous vote, the status quo was to remain and not only did those employees not want to do green waste collections, they were not doing them at that time. That also meant there was never any agreed matter as at February 2007 and the parties were in deadlock, and were still at an impasse in May 2007. 259He went on to state that it was much faster to collect green waste on a run based system, rather than a ticketed system as it required a crew to cover a much smaller area and was to collect green waste which was in a container rather than bundled. He also maintained that the volume of 50 "bundles" was also much greater than the maximum volume of 50 MGBs or collapsible bags. 260Mr Swilks deposed as to the following volume calculation: a)The maximum volume of a bundle is two cubic metres, which equates to 2,000 litres. That is, a bundle is potentially significantly larger than a 240 litre or 140 litre MGB. b)Therefore the maximum volume of 50 bundles is 100,000 litres. c)By dividing 100,000 by 240 or 140, you can work out the number of MGBs which equates to 100,000 litres: i.100,000 ÷ 240 = 416.667 ii.100,000 ÷ 140 = 714.286 Therefore, the equivalent volume (in MGBs) of two bundles is between about 416 and 714. 261Mr Swilks indicated that he came up with the volume concept in consultation with Mr Wady over a period of weeks when they were trying to establish what would be the equivalent of 2 metres of green waste when it was transplanted into a bin system. It was empirical as there was no industry standard. 262Mr Swilks deposed that Council recognised that not all green waste bundles utilised the maximum allowed volume and therefore proposed to the garbage staff that they collect up to 250 green waste MGBs on the half day runs. 263Mr Swilks acknowledged that in relation to the green waste bundles there was always going to be differences in size of the bundles and fluctuations in amount, irrespective of whether it was a bin or bundle. 264He also acknowledged that in the documentation (as attached to Mr Wady's statement) and the analogy drawn, there was no mention of the volume of a bin, whether it was big or small bin, just 660 bins. Similarly the darg in referring to a theoretical presentation of 100% did not refer to the size of the bin. 265Mr Swilks agreed he did not seek agreement on the basis of 50 green waste bin collections nor were runs developed on that basis and that was not a big enough productivity increase. This was because "it wasn't really comparing like with like from a workload perspective. From a workload perspective doing 50 manual collections of loosely sorted waste was extremely time consuming whereas doing 50 green waste bins is hook and go, so there was a significant difference in the actual time involved in each collection that wasn't - if you do a direct 50/50 it's not like for like". 266Mr Swilks agreed that this analysis was based on measuring a collection by how long it took and adding in a variable of the district where the task might be undertaken. He also agreed that was not referred to in the language of the Agreement. 267Mr Swilks also agreed that in the presentation documentation prepared for the negotiations on the Waste Services Agreement 3 (Exhibit 33-OJW8) on the page headed 'DARG' under the subheading of 'Garbage' there was reference in the second line to the following: "half run" for fifth truck -660 bins plus 50 greenwaste bins. 268Mr Swilks recalled recall meeting with the USU on around three occasions in mid-2007 but could not recall the exact dates. 269Mr Swilks confirmed there was a power point presentation prepared by Mr Wady (under his supervision and direction) and which he presented a number of times during the (ultimately failed) negotiations for a new Waste Services Agreement (which would have been the Waste Services Agreement 3) in 2007. 270He did specifically recall one occasion, in May 2007, in the training room on the first floor of Building A of Council's Sydenham Depot. Mr Wady and Ms Charu Hurria were present from Council as was Mr McQuillan and he thought either Mr Moody or Ms Raffan were present for the USU and the workers, but Mr Mulholland, Mr Donley, Mr Kelly, Ms Callinan and Mr Littlewood were not present. He agreed that this was in fact the meeting of 18 May 2007. 271He recalled that the training room was set up with chairs and tables in a "U" shape. He was sitting on one section of the "U" (parallel to the southern wall of the room) and recalled looking across to the other side of the "U" where the USU representatives were sitting. There was a white board on the wall behind me. He recalled that they discussed the collection of green waste under the Agreement and, in particular, the calculation of the number of MGBs, and Council's proposal that the garbage staff collect 250 MGBs. He recalled standing up and writing the calculations up on the white board, using, from memory, a green pen. While he was explaining the calculations as he was writing them up on the wall. He could not now recall the words that he used, but they were to the following effect: Look, you guys haven't been doing what is required under the Agreement for years. You've been getting a bit of a free ride and getting to go home early once a week, and you still get paid. It can't go on. So, this is what we're proposing. You can see that the 50 bundles equals over 400 large bins, and even more smaller ones. But, all we're asking you to collect are 250. 272He could not recall the exact words of the response from the USU and the staff. They may not have been really happy with the arrangement but they seemed to accept that they were going to need to do the runs, and that they couldn't keep getting by doing nothing on what was known as their "half day". 273He confirmed that the letter of 17 May 2007 from Ms Nay to Mr Kruse was sent that day based on Council's TRIM records (also tendered). He was not aware of whether or not the letter was also sent by email. That was their current practice. He also indicated the administrative process involved with letters and TRIM generally. He confirmed Ms Groth would have seen the letters in final form (including the 11 May letter from the USU). 274He also confirmed that he had no reason to believe the USU had received the letter before the meeting on 18 May and that the USU were not on notice at that stage about the volume theory (which had probably been finalised a couple of days before the meeting) and that there had been no previous meeting with the USU and the delegates to discuss this theory. He could not recollect whether any mention had been made that a letter had been sent from Council the previous day. He agreed that Ms Raffan did not agree to the proposal and that nobody from the USU agreed at that stage, or suggested that they would take it back to members. 275Mr Swilks maintained that shortly after the meeting Council then designed proposed new run maps for the collection of the MGBs and he understood that the proposed new run maps were presented to the garbage staff and the Union a few weeks after the meeting. He was not present when that occurred and thought he might have been on leave on the relevant day but was not certain. He thought Mr Wady, then told him that the garbage staff and the Union had agreed to the proposed new runs. Certainly, the garbage staff then started collecting the green waste MGBs on the basis of those maps and did so until they went on strike in around July 2011. 276Mr Swilks had no recollection of a meeting in the Muster Room at 5 am with the household garbage workers in late May/early June. He was referred to Mr Mulholland's statement concerning the arguments said to have been advanced by Mr Swilks that the garbage workers were well short; the way to address that was to have them again collect green waste; with the threat conveyed that if they did not agree they would suffer a decrease in wages. 277He denied making remarks to that effect, denied saying they could reduce their pay and said that he thought it had been "confused'. They were talking about the process of bench marking, what rates were paid at other councils for different dargs. He did not have the authority to say that and it would have been "career insanity" for him to say something like that to staff. He did not recall saying anything that could be construed as such, and it could not be anything to do with a productivity payment as they had never received a productivity payment as they never got to 1,158 bins. 278Mr Swilks denied trying to pressure them into accepting. He acknowledged that there was no logical reason for them to agree when they had rejected it in January and February and didn't agree on 18 May. He agreed that he did not give them any incentive to accept and that there were no agreement negotiations on the table. 279He maintained the incentive was to get the process started with industry standards that were acceptable and "yes everyone will keep the job and we can just move forward, you know, there was no threat to people, it was they wanted to move forward with the process." He never suggested anyone was going to lose their job. 280He said it was put forward that they wanted to develop a service that would be viable and this would allow the EBA negotiation to go forward. There was no mention of any consequence of what would happen if the service didn't become viable. 281Mr Swilks deposed that while the potential maximum MGBs to be collected on a run was 250, the garbage staff had, on average, only ever collected an average of around 122 MGBs. He had annexed to his statement an extract from a lengthy Excel spreadsheet calculating that figure. To the best of his knowledge, the entire spreadsheet was provided to the Union in or around July 2011. He also noted an audit of green waste MGB presentations and collections was conducted in June 2011 which showed that the average weight of a green waste MGB collected during the audit was 18.61 kg. The remaining pages listed the total tonnage of green waste (from MGBs) collected by garbage staff over the period (to the best of his knowledge), from around July 2010 to June 2011. The tonnage was converted to kgs, and then divided by the average weight of 18.61 kg giving an approximate equivalent number of green waste MGBs per collection. 282Mr Swilks acknowledged he was aware of the differences between members of the Union and various levels of Officials of the Union; that members and Delegates did not have authority to enter into agreements and that the General Secretary of the Union was akin to the General Manager of Council. He also acknowledged that it was only the General Manager who signed off on agreements. He indicated his level of authority and delegation and ability to make recommendations on hiring and firing with someone else making the decision. 283Mr Swilks also deposed that since around July 2008, Council had provided the USU with information and documents in relation to garbage MGB numbers (giving examples of documents and dates provided to Mr Alan Dickson, USU in 2008-2009, and thence Mr Mulholland and Ms Callinan). Prior to around July 2008, he was not aware of Mr McQuillan or the USU requesting any information of this nature. 284Mr Swilks agreed that prior to 2008 they were not providing information on a 6 monthly basis and therefore not complying with the Agreement. It was discussed with Mr McQuillan on a semi-regular basis and there was verbal agreement about that with him. They did not write to the USU and tell them they were not complying with the clause. 285He did not agree that he was content to deal with Mr McQuillan at the local level because he was more compliant with his requests and demands. He agreed as to the difference in their position, education, qualifications and experience etc. 286He maintained that whilst all through this time they had discussions with Mr McQuillan, they also had meetings with a number of USU Organisers, but could not remember who. There were a number of people who came out to discuss it, not only Mr McQuillan, there was general agreement, it was a very cohesive arrangement. It wasn't seen as an issue at the time and there was no ill intent on the offer. 287He agreed he took a more formal approach with Mr Mulholland in 2009. 288Mr Swilks confirmed that at any time, there are a certain number of garbage MGBs on issue to residents in the Council area but that not all MGBs were put out for collection by residents each week. Over time, the "presentation rate" of garbage MGBs had decreased. 289He confirmed the bin audit conducted in 2005, as referred to by Mr Wady which showed that, at that time, 84.8% of MGBs were presented for collection. A further bin audit was conducted in 2011 by an external provider, also conducted by following Council trucks and counting the number of MGBs presented and collected (as he understood the methodology). That audit showed that, at that time, 83.5% of MGBs were presented for collection. He indicated that this showed that between 2005 and 2011, presentation rates had decreased by 1.3%. 290He went on to state that whilst on its face, a decrease of 1.3% did not appear to be very large, in his experience, presentation rates were extremely stable, except for unusual periods such as over Christmas. He therefore considered that a 1.3% decrease was in fact quite significant. He suggested a number of possible reasons for this as follows: a)In earlier years, residents were still placing green waste in their general garbage MGB. This was well known within Council and might be because they had not yet requested or been provided with a MGB, or simply because they found it easier to place all their garbage (green waste and household waste) into the one bin. b)It was highly like that there may be numerous garbage MGBs on issue to residents which are either underutilised or simply unused for a variety of reasons including: i.smaller household sizes which might only need to place their MGBs out for collection every second cycle (that is, every second week in the case of garbage); ii.in relation to unit blocks, the issue of one 240 litre garbage MGBs for every two unit blocks might be excess to needs. It was also common that garbage in MGBs would be 'rationalised' to an extent prior to presentation (that is, for example, rather than presenting 10 half full MGBs, the caretaker of the unit block might physically move garbage so that a smaller number (say, 5 or 6) of full MGBs are presented. He noted that currently there were discussions amongst councils and even at State Government level in relation to reducing garbage MGB allocation for units from "one for every two units" to "one for every three units"; and iii.there may be a number of lost, stolen or damaged bins which are therefore not presented, (he suspected this number would be low). 291Mr Swilks had also annexed to his statement a document indicating the tonnage weight of garbage and green waste collected by Council staff in each financial year from 1994/95 to June 2011 and showing the total weight of garbage waste decreased sharply in about 2000/01 to 2001/02. Since then, it had remained relatively stable, although over the last four years it had decreased a small amount each year from the 2007/08 figure. 292Mr Swilks acknowledged that 'job and finish' had been a corner stone of the 2003 Agreement; that he was opposed to that concept; that was also Council's position, and that he had had a dialogue with the General Manager in the last 12 months about getting rid of 'job and finish'. That dialogue had not been formally communicated to the USU. This had been discussed repeatedly at the Safety Committee and with staff and repeatedly raised with the Work Review team as well as Ms Callinan. They saw it as a problem because of the injuries that were occurring. It had not been conveyed in writing to the employees in an industrial context. 293Mr Swilks denied that his views were influencing his thinking in what he was attempting to implement in 2007 when the green waste of 250 bins was introduced. He went on to explain the motivation being that when they had done benchmarking with other councils and looked at their productivity they were only working 4 ½ days and when the cost per lift was worked out there were a whole lot of financial considerations. They were trying to get a cohesive unit delivering what is a standard day's work for staff so they could move forward the EBA negotiations but they kept faltering. 294He indicated there was always an issue with OH&S. There was a lot of monitoring and a lot of training, massive reworking with external consultants. They were trying to make things safer but with 'job and finish' they wanted to get out of there quick, there was running/jogging on uneven surfaces not walking. They also had an older workforce. Submissions on behalf of the Applicant 295Mr Barnes filed an Outline of Submissions (Exhibit 12), detailed and extensive Written Submissions (Exhibit 40), Submissions in Reply (Exhibit 42), and at the request of the Commission, Supplementary Overview Submissions (Exhibit 43). The latter submissions succinctly summarise the position of the USU in this matter and are largely set out below. Those submissions were further supplemented by subsequent oral submissions. The lengthier written submissions referred extensively to relevant evidence. A number of cases were also cited in support of the various aspects of the submissions (or in rebutting the reliance place on those cases by Council) as follows: Con-Stan Industries of Australia P/L v Norwich Winterthur Insurance (Australia) Ltd (1986) 60 ALJR 294 and PSA & the Zoo ]2007] NSWIRComm 1080 (re custom and usage); Jones v Dunkel and Payne v Parker [1976] 1 NSWLR 191 (re criticism of the failure of USU to call Mr Kruse as a witness, with rebuttal that Council equally failed to call Mr Kruse); Bell v Lever Bros [1932] AC161 and Fair Work Ombudsman v National Jet Systems Pty Limited [2012] FCA 243 (re duress); Perisher Blue Pty Ltd and others v Australian Workers Union (1999) 91 IR 274 (re principles of award interpretation) and Robertson v Marrickville Council (re failure to consult the JCC). 296Reliance was also placed by the USU on the definition of "collection" as found in the Concise Oxford Dictionary, (Oxford University Press, 1983 Edition), being "...collecting or being collected..." and also as a "...group of things collected and belonging together..." 297The Commission was also taken to relevant extracts of the 1995 and 2003 Agreements (Agreements No.1 and No. 2 respectively - see Background and Chronology above). 298It was pointed out that Agreement No.2 had been in effect since 5 May 2003 and Council had made no submissions that it was not binding on the parties. The USU asserted that at no stage had there been any agreement to vary the terms of Agreement No. 2. Further, there had been no valid agreement entered into between Council and its waste services employees for an alteration to their working arrangements as was advanced by Council in their Submissions as filed. 299In 2007 Council, through its senior managers, sought to obtain agreement from the waste services employees for a change to their long established working arrangements as set out in Agreement No. 2. Council submitted that this agreement was negotiated without it being a variation to Agreement No. 2 and now presumably represented long standing custom and practice which ought to be preserved. 300It was the USU's case that the purported agreement (however reached) to collect up to 250 green waste collections on the half day run was in breach of both Agreement No. 2 and the Local Government (State) Award. Clause 6 of Agreement No. 2 provides that the Agreement shall not be varied within its term unless by mutual consent of the parties. The USU and the Council are the only two parties to that Agreement. 301It was the USU's case that the only two ways to vary the Agreement were by negotiations with the USU itself or through the JCC and then to the USU for further negotiations. It was clear on the evidence that the variation to the Agreement did not pass through either of these steps. Council's evidence was at best, that some of the individual waste collection employees "agreed" to the variation in the presence of the Delegate (in the absence of any involvement of the USU). 302Mr Swilks, agreed during cross examination that whilst USU Organiser Ms Raffan was in attendance at that meeting, no one on behalf of the USU had agreed with the idea and the matter was still open to negotiation. Clearly there was no agreement with Ms Raffan or the Delegates at that meeting, let alone with the USU. Mr Swilks and Mr Wady denied subsequently threatening financial consequences for the employees if they refused to agree to do the additional collections. However, Mr Wady agreed that nothing was offered to the waste collection employees in return for the additional work. As such, it was inconsistent with the evidence of both Mr Connor and Mr Mulholland that it was at least implied that there could be a financial consequence. It would be inconceivable that those employees, in the absence of any threat, inducement or reward, would agree to increase their workload to their detriment for no additional pay or conditions. 303Reference was made to the provisions of the Local Government (State) Award concerning the establishment of a JCC. With the exception of some minor changes, that provision had remained relatively unchanged throughout the relevant period (2001 to date). It was submitted that the proposed changes to the waste collection employees should to have been discussed at the JCC and the subject of consultation, yet the evidence was that it clearly was not brought to the JCC. Therefore there was no binding or effective agreement with the JCC process. As set out in the Agreed Facts filed by the parties in this matter the JCC records for the year 2007 have no reference to the revised working arrangements regarding the purported agreement to collect 250 green waste bins. 304Reference was made to, and reliance placed upon, the documents tendered in evidence by the USU of examples where changes to be introduced by Council were dealt with at JCC level. Noting the involvement of both Mr Swilks and Ms Groth in the JCC and the type of matters being brought to it, it was extraordinary that the proposed changes to the working arrangements for the waste collection employees were not brought to the JCC. 305In relation to the issue of the authority to vary Agreement No.2 the evidence of the USU witnesses (Mr Moody, Mr Donley, Ms Callinan and Mr Kelly) confirmed that the USU had very strict guidelines in place for how agreements and variations had to be approved. Mr Kelly agreed that Council could consult directly with employees as was long as it was not going to change the way the employees did their work. The USU would have had to enter into negotiations to vary Agreement No.2. 306Further, this alleged variation was never reduced to writing and provided to the USU, a party to Agreement No. 2. There was a requirement under the Local Government (State) Award that Council Agreements were submitted in writing, signed by the parties and a copy forwarded to the Local Government Association of NSW (LGA). It was clear that it would be absurd to be able to effect a variation by oral agreement with a non-party, and any variation to a Council Agreement must also be dealt with in the same manner. This had not been done. It was also clear from the evidence that Council gave no notice to the LGA. This requirement was contained in the 2001 Local Government (State) Award and has remained in the 2004, 2007 and 2010 Awards. 307It was submitted that Council, by its action of providing and promoting misleading information to the waste collection employees and making an implied or explicit threat of financial consequences, had breached the Local Government (State) Award requirement that agreements must be arrived at by "...negotiation without compulsion". 308It was submitted that, as the purported variation or new agreement did not comply with the correct processes, it was not valid and could not be relied upon by Council. 309In relation to the agreement between Council and the employees, Council's argument that there had been direct agreement between the waste services employees and Council's senior managers to alter the long established working arrangements, for no benefit, either financial or in terms of conditions of employment, to the waste service employees themselves, was illogical and contrary to the evidence in the proceedings. 310The Commission's attention was drawn to the evidence of both Mr Connor and Mr Mulholland at the hearing that it was at least implied that, unless the waste services employees agreed to collect the 50 green waste bins, that there would be financial implications. Mr Swilks conceded that the theory that the waste services employees were under DARG was incorrect. Further, he conceded that nothing was being offered in return for the agreement to collect the additional bins. It should be noted that this concession was made by Council in its Submissions in Reply and this was the first time that Council acknowledged that the darg was theoretical, not actual. This admission had not been made by Council during the course of the hearing. 311It was submitted that any purported agreement by the waste collection employees to the variation of Agreement No. 2 was obtained due to misrepresentation and/ or duress. The status of darg as advanced by Mr Swilks and Mr Wady (and as admitted by them during cross examination), was in error. As such, the employees were not under darg and there was therefore no shortfall to be made up. 312It was submitted that Council's argument that the alleged change in working arrangements represented a long standing custom and practice was incorrect. There was no consideration for such a change as the employees did not receive a pay rise or improved conditions. Council's custom and practice argument did not satisfy the necessary criteria established in such authorities as Con-Stan Industries Australia Pty Ltd -v- Norwich Winterthur Insurance (Australia) Ltd (1986) 60 ALJR 294. Further, the arrangements were only in place for a couple of years and had been objected to by the USU since at least May 2011. In those circumstances the arrangements could not be said to constitute long standing working arrangements. 313Council had also sought to advance an argument in its Submissions that the waste services employees volunteered to perform additional work for no extra pay. It was submitted that even if those employees were volunteers they had a right to withdraw from such arrangements. This was clearly communicated by those employees in approximately May 2011 when the waste services employees ceased performing those duties. Once again, it was implausible that waste services employees would voluntarily agree to perform additional duties for no benefit. Further, this argument was not consistent with Mr Connor's and Mr Mulholland's evidence regarding the alleged threat of financial consequences for being under darg. 314In relation to the meaning of "collection", Council had argued that the reference, in Clause 13.2 of Agreement No. 2, to 1158 bins per run based on 100% presentation was a darg or daily collection quota which must be met by the employees. It was the USU's submission that the reference to 1158 was the theoretical maximum amount available for collection on any given day assuming that 100% of residents put their bin out for collection. You could therefore never be under darg. This was conceded by both of Council's witnesses, Mr Swilks and Mr Wady. 315It was submitted that the reference in Clause 13.2 of Agreement No. 2 to "collections" could only be interpreted as referring to a collection of each green waste bin (up to 50). It could not be interpreted as including a reference to the weight or amount of material available for collection. The language used by the parties to express the working arrangements relating to collections made no reference to weight or volume. The interpretation of the term "collection" must be interpreted by reference to the arrangements at the time Agreement No. 2 was negotiated. 316It was submitted that the USU's interpretation of Clause 13.2 was consistent with statutory interpretation principles and was consistent with the objects of the Industrial Relations Act. Council's interpretation was not. A reasonable person would determine that a collection referred to each bin potentially available for collection. 317In the alternative, the interpretation sought to be made by Council was in conflict with the principles of interpretation. Council did not seek to define the term "collection" in clause 13.2 of Agreement No. 2 at the time that the Agreement was being negotiated and made. This was despite the same senior managers of Council that were being kept up to date on the negotiations also being involved in the roll-out of a green waste collection system. Council could not, at a later date, seek to enforce an interpretation which permitted it to unilaterally alter the working arrangements of the waste collection employees outside the manner and scope provided for by the Local Government (State) Award and Agreement No. 2. Submissions on behalf of the Respondent 318Mr Jauncey on behalf of Council also filed detailed and extensive written submissions (Exhibit 41) in which the relevant history, and as well as the evidence relied upon in support of those submissions, was extensively summarised and canvassed. Various aspects of the submissions made by the USU were also rebutted. Further oral submissions were also made that essentially summarised those written submissions with some minor additional supplementation. No Overview Submissions were filed however. 319Much of the historical material concerning green waste collections has been referred to in the Background and Chronology above, is not contested, and therefore will not be referred to further. 320It was submitted that the crux of this dispute was whether each garbage collection crew employed by Council should continue to pick up 250 "theoretical" green waste bins (assuming 100% presentation) on one "half day" per week. Council's position was that this work practice was agreed by the relevant garbage crews in mid 2007, and has been a long standing custom and practice which should be maintained. 321The USU's position appeared to be that the work practices adopted by agreement with the garbage crews in mid 2007, somehow involved a breach of the 2003 Agreement (Agreement No.2), a Council Agreement made under the provisions of the (then) Local Government (State) Award 2001. Alternatively, the USU seemed to assert that the agreement by the garbage crews to the current work practices was induced by mistake or duress, and that the agreement should be set aside or regarded as invalid. 322Mr Jauncey acknowledged that it had been conceded by Council that 1,158 bins was a theoretical number of bins that might be collected if 100% of the bins were actually presented. 323In relation to the 2003 Agreement it was apparent that by that time (2003) garbage crews were enjoying a substantial weekly productivity payment even although there were fewer mobile garbage bins on issue than the baseline productivity measure established under the 1995 Agreement. In effect, therefore, garbage crews were doing less work than contemplated under the 1995 Agreement, but were still being paid for productivity returns that were not being realised. Even so, they wanted to receive more money. 324Mr Littlewood's evidence was then referred to, that in order to justify a further pay rise, Council wanted a productivity return and that garbage crews were already being paid to pick up 275 more "potential" bins per week (even assuming a 100% presentation rate) than they were, in fact, covering. Thus in order to justify a productivity increase relative to the 1995 Agreement, it was not enough to have a garbage crew just pick up the equivalent of another 275 "potential" bins to bring them up to the level for which they were already being paid. 325The provisions of the new Agreement (see Background and Chronology above) were referred to and in order to generate a productivity improvement, clause 13.2 of the 2003 Agreement provided that there would be "the collection of fifty (50) green waste collections per day" which would be achieved by each garbage crew acting to "collect 50 green waste collections" on one half day per week. 326It was submitted that importantly, however, at the time the 2003 Agreement was negotiated, green waste (whether presented in a bundled form or in some form of container) was still being picked up using a ticketed system. Indeed, there seemed to have been absolutely no contemplation, at that time, that green waste might be picked up using a designated run based system. In this light, the reference to a "green waste collection" could only have been intended to mean an actual pick up of green waste, whether in a bundle or a bin, using a ticketed and booked system (and could not have been intended to refer to a "potential" presentation using a designated run based system). reference was made to the evidence of Mr Littlewood as to what he understood by the term and relied upon. 327It was pointed out that the runs that were developed by Mr Littlewood in consultation with the staff and Mr McQuillan to give effect to both the garbage runes under the new darg and the 50 collections were not considered necessary to be taken to the JCC and this approach seemed to be accepted by the USU as meeting appropriate consultation requirements. The garbage crews commenced picking up green waste on one half day, per crew, per week, and this continued to be done using a ticketed and booked system, rather than on a designated run based system (such as that used for garbage collections). 328The changes to the green waste arrangements in late 2003 have been summarised in the Background and Chronology above. 329Reference was made to the fact that between 2004 to mid 2007 the garbage crews did not pick up any green waste. They continued to pick up garbage on a run based system but the evidence concerning the total bins available in 2006 and 2007 made it clear that the garbage crews were still behind even the baseline productivity measure set under the previous 1995 Agreement. This meant that, not only were the garbage crews not meeting the baseline productivity measure required to justify the extra $100 per week paid under the 1995 Agreement (and which was still being paid), but that the actual work involved in picking up garbage bins had stayed fundamentally static since the introduction of the 2003 Agreement. While actual bins on issue had slightly increased (albeit still below the 1995 benchmark), presentation rates had fallen such that the actual number of bins which needed to be picked up had remained broadly the same. It followed that Council was receiving no productivity return on the extra benefits provided under the 2003 Agreement, and also, was still failing to even achieve a productivity benchmark sufficient to justify the additional payments which had first been implemented under the 1995 Agreement. In effect, the inescapable conclusion was that the garbage crews were being paid for work that they were not doing. 330It was submitted that in the circumstances it was hardly surprising that Council wished to see a revision in the working arrangements. Importantly, however, Council did not act to unilaterally implement changes in the absence of consultation. Instead, it raised its wishes with senior officials of the Union, and also engaged in other discussions with both staff and Union representatives. 331What evidence there was concerning those discussions and letters exchanged was referred to and summarised. Particular reference was made to the 17 May 2007 letter from Council to Mr Kruse, the USU General Secretary, Council's TRIM evidence, with the Commission invited to draw a Jones v Dunkel inference concerning the failure of the USU to call Mr Kruse to give evidence. If the USU wanted to say that the correspondence was not received then that was a matter on which they needed to lead evidence. 332Reference was also made to the meeting of 18 May at which Ms Raffan was present and the explanations by Mr Swilks about Council's proposals and his comments concerning the men "getting a free ride" etc,. It was submitted that this comment was correct and accurate, if somewhat blunt, and well within the bounds of acceptable language in a frank exchange of views. There was nothing at all inappropriate about it. Ms Raffan could not recall such a comment and the USU had not called as a witness any other person present at the meeting. In the circumstances, the Commission should accept Mr Swilks' version of events. There was no evidence of Mr Swilks making any further comment during the course of this meeting that might in any way be interpreted as a "threat" of a unilateral pay reduction. Indeed, the USU now appeared to accept that no such threat was made during the meeting. 333Reference was made to Mr Wady's evidence concerning the Muster Room meeting (21 May); the subsequent approach by Mr McQuillan requesting proposed runs; the meeting of 4 June; Mr Wady's evidence as to the agreement of the men; the evidence of Mr Connor and Mr Mulholland confirming that agreement, and that a vote had been taken. 334It was also pointed out that over the course of late May and early June 2007, Ms Raffan continued to have meetings involving the Delegates; must have received the 17 May letter by then (even if not prior to the meeting); and must have been aware matters were progressing at a local level (and was probably aware of the agreement reached). 335Reference was made to the evidence concerning the implementation of the agreement reached (and the practical operation of such from Mr Wady's evidence) and that this continued for some years up until about May 2011. It was pointed out that there were various USU organisers over this period and no evidence had been led from them. It could only be presumed that this evidence would not have assisted the USU's case. It was highly likely that at least some of the organisers became aware of the green waste collection arrangements in place. Certainly, the USU had not led evidence sufficient to refute this inference. Ms Callinan, the USU organiser in 2009, became aware of the issue, however, did not take any steps to raise the issue with Council at that time (or, indeed, for some years afterwards). 336Reference was then made to the dispute that unfolded in up to about May 2011 and the subsequent "rebalance" of the runs to remove potential discrepancies and to ensure that they continued to cover only 250 "potential" green waste bins (assuming 100% presentation). 337It was submitted that this case turned on the fact that the USU was now unhappy with the green waste working arrangements agreed by its members and delegates in 2007 and wished to escape from those arrangements, despite them having formed the custom and practice at Council over a period of years. 338The USU appeared to base its case on two propositions. Firstly, that the practice agreed by garbage crews in 2007 (and followed since then), was somehow invalid, or otherwise in breach of the 2003 Agreement, because the persons who made the agreement did not have authority to agree to any variations in work practices. Secondly, that the practice was invalid, or should be set aside, because the agreement of the garbage crews was procured by asserted duress or through some other form of impropriety. 339Mr Jauncey refuted the USU's suggestion that there was no evidence that either Mr Swilks or Mr Wady had delegated authority to negotiate any changes in work practices on the basis that this ignored the following: The General Manager was clearly seeking the negotiation of arrangements for garbage crews to pick up 250 green waste bins on a designated run based system (see 17 May 2007 letter signed by the General Manager); Mr Barratt, the (then) Director of Corporate Services and second in charge at Council, was present at the 18 May 2007 meeting when Mr Swilks presented Council's proposal (clearly establishing that Mr Swilks was operating under authority); and Mr Wady's evidence that Mr Swilks was the "lead negotiator for Council": see paragraph 57 of Exhibit 35. 340Further, no suggestion was put to either Mr Swilks or Mr Wady that they were in any way on a frolic of their own, or that their actions were not expressly authorised by the General Manager and other senior management. Instead, the only possible conclusion on the evidence was that Mr Swilks had full authority to negotiate on behalf of Council to seek to implement the arrangements which had been proposed by the General Manager in her 17 May letter. 341The USU's suggestion that the practice agreed by the garbage crews was invalid because it did not go through or comply with the USU's formal mechanism was also refuted. 342It was submitted that the process asserted by the USU was contradictory, on the one hand involving the approval of the General Secretary and on the other work changes being acceptable if approved by the JCC (whether or not then formally ratified by the USU). 343It was submitted that the USU's reliance on clause 6.2 of the 2003 Agreement to support an assertion that some form of formal approval was required from the General Secretary (or from some other official of the USU) was misplaced as this clause only applied to circumstances where the 2003 Agreement was to be "varied" at a time within its term. By mid 2007, the 2003 Agreement was no longer within the three year term prescribed under clause 6.1 having expired over a year earlier on 5 May 2006. As such, clause 6.2 strictly had no operation. 344It was submitted that the difficulty inherent in the proposition that green waste working arrangements could not be altered without some form of formal variation to the Council Agreement (or some other process involving the approval of the General Secretary) was made clear by the fact that, in or about December 2003, previous changes to green waste working arrangements had been negotiated, and agreed, through a process very similar to that applied in mid 2007. The USU had not at any stage sought to assert that the previous changes in work practices (which resulted in garbage crews ceasing to perform any green waste pick ups for a number of years) was in any way invalid or contrary to the 2003 Agreement. 345It was submitted that the USU sought to rationalise its position by stating that the change in work practise negotiated in or about December 2003 was "not a variation" to the 2003 Agreement, because Council simply exercised its discretion not to require the waste services employees to perform all the duties contained in clause 13.2 of the 2003 Agreement. However, exactly the same consideration applied to the agreement by the garbage crews to vary working arrangements in mid 2007. 346It was submitted that there was no doubt that an employee engaged under an industrial award or agreement could choose to exercise his or her discretion to agree to work variations, provided the new work arrangement was not prohibited by the terms of the award or agreement. Examples of such were then given. 347It was submitted that implementation of such an arrangement, whether on a "one off", or an ongoing basis, would not result in any breach of any provision of the 2003 Agreement, at least provided it had the concurrence of all concerned including Council (and it did not result in the second crew working beyond eight hours in a day). Similarly, provided that agreement to such a work variation was reached by the affected parties at the local level, there would be no obligation to obtain formal approval from the USU or through the JCC. In this light, it was apparent that the agreed variation in working arrangements reached in mid 2007 was a valid change made with the concurrence of affected employees, and did not involve any "breach" of the 2003 Agreement. Nor did it require the formal approval of the USU through its General Secretary or through any other means. 348Also rejected was the suggestion by the USU that the agreement was procured or induced through mistake or alleged duress. 349Reference was made to Mr Swiilks' presentation in 2007 and the case sought for change based on a the 2003 base line productivity measure of 1,158 bins per "full run" as an actual number of bins (assuming 100% presentation). He had conceded in evidence, to his credit, this was mistaken and the 1,158 bins should have been calculated on a "theoretical" basis. However there was no concession that the reference to 50 green waste collections was on a "theoretical basis". 350The assertion by the USU that the mistake made by Mr Swilks was either a deliberate falsehood, or the product of a reckless indifference to accuracy, was rejected on the basis that such a categorisation did a grave injustice to Mr Swilks, and ignored the reasons provided by him as to why he previously held a mistaken understanding (his non-involvement in the 2003 negotiations and his previous knowledge and experience at Leichhardt Council). In the circumstances his mistaken belief was hardly surprising. Mr Swilks strongly denied that his proposition was knowingly "false" and was adamant he had no intention of misleading staff. It was submitted that his denials should be accepted. 351Council accepted that, in presenting his reasoning why he though a change in work practice should occur, Mr Swilks put forward a proposition based on a mistaken understanding of fact. However, this in no way invalidated the agreement that was then reached. 352It was submitted that for an agreement to be declared void, or even voidable, on the basis of common mistake, it was necessary that there be a fundamental mistake as to the subject matter of the agreement (see Bell v Lever Bros Ltd [1932] AC 161 at 227). 353In this matter, however, the subject of the agreement and of the discussion was the number of green waste mobile garbage bins to be picked up on each "half day" run. The nature of the 'mistake' did not relate to this issue. 354It was submitted that importantly, while Mr Swilks may have been mistaken in relation to his manner of counting "actual" rather than 'theoretical" garbage bins, his basic proposition that staff had not reached the baseline productivity measurement under either the 1995 Agreement or the 2003 Agreement was correct, albeit for different reasons (as previously referred to). In the circumstances, there mere fact that Mr Swilks made a mistake in presenting his reasons for change, given that his fundamental proposition was sound, provided no basis to regard the agreement reached as invalid or liable to be set aside. 355Also rejected was the assertion by the USU that the garbage crews were subject to alleged "duress" in agreeing, in mid 2007, to an alteration in green waste work practices. This assertion was based on the claim that there was an "implied, if not explicit, threat" that a failure to agree to the variation could result in loss of wages, and in turn, on assertions as to the statements made by Mr Swilks during a meeting in the muster room at some time following 18 May 2007. 356It was submitted that a claim of an improper "threat" was a serious allegation. Such a claim should not be made without proper evidence, and should not be accepted by the Commission based only on inexact proofs, indefinite testimony, or indirect references (see Briginshaw v Briginshaw (1938) 60 CLR 336). 357In this matter no specific details were provided, even as to the exact date on which the asserted "threat" was said to have been made. Indeed, there was very substantial doubt whether Mr Swilks was even at the meeting on 21 May 2007. Instead, the USU were left simply asserting that there was a separate meeting in the Muster Room which occurred within days of the one on 21 May 2007, but about which no notes were taken or tendered into evidence. The USU also failed to specify the words of the claimed "threat", or even whether it was explicit or implicit. 358It was also generally submitted that the evidence of Mr Connor and Mr Mulholland was inexact and subject to various revisions and alterations (which were then referred to and summarised). Reference was also made to the evidence of Mr Swilks (his denial of any threat), and that of Mr Wady (no memory of Mr Swilks making any threat). The most assistance the USU could gain from Mr Swilks' evidence was the acceptance that, during the meeting on 18 May 2007 (in the presence of Ms Raffan, and other persons on behalf of the USU), there was some discussion that if agreement could not be reached, Council might need to consider alternatives which were lawfully open to it (such as terminating the 2003 Agreement). However, a mere statement that a person may consider taking options lawfully available to it could not possibly constitute an improper or inappropriate "threat". 359Also rejected was the claim by the USU that Mr Swilks sought to take advantage of his education and experience by dealing directly with the garbage crews when USU Organisers were not present. This assertion ignored the fact that Mr McQuillan, the relevant USU Delegate, was clearly aware of what was being said and done. Council submitted that it was preposterous to assert that Mr Swilks might have thought that improper behaviour towards a large number of garbage crew members, in the presence of a USU Delegate, would never be communicated to USU Organisers or more senior officials. The claim of an improper or inappropriate "threat" was also inconsistent with the evidence of Ms Raffan concerning her further involvement in subsequent meetings (until she ceased responsibility for Marrickville in August) concerning green waste (involving Mr Mazotta, and possibly Mr McQuillan). In the circumstances, it was almost inconceivable that Ms Raffan did not discuss the proposed changes to green waste working arrangements with at least Mr Mazotta and Mr McQuillan. It must be inferred that, at the time, she had at least a fair knowledge of what was going on. Despite this, however, she did not raise any further issues with Council. 360It was also submitted that had an improper or inappropriate "threat" been made, as now alleged by the USU, it was highly improbable that it would not have come to the attention of Ms Raffan, and been otherwise taken up vigorously by the USU. It was also highly improbable that affected employees would have remained silent about the issue, and not reported it to USU Organisers or officials for many years. Indeed, Ms Callinan became aware, in about 2009, of dissatisfaction with green waste arrangements with her evidence being that no one suggested to her that it was a serious enough issue as to warrant immediate action. This was, again, entirely inconsistent with the proposition that the garbage crews had been forced into the agreed arrangements as a result of any duress. 361On the concept of duress in an industrial context reliance was placed on the consideration of such by Buchanan J of the Federal Court in Fair Work Ombudsman v National Jet Systems Pty Limited [2012] FCA 243. After reviewing the authorities, Buchanan J found that it was necessary to prove two elements to establish duress: Firstly that pressure was exerted which, in a practical sense, negated choice (in the sense of leaving no real choice, rather than just an unpalatable choice); and Secondly, that the exertion of the pressure involved conduct that was unlawful, illegitimate or unconscionable. 362It was submitted that in this matter however, Council was entitled, if it wished, to raise options which were lawfully open to it (such as potentially acting to lawfully terminate the 2003 Agreement, or to activate the productivity benchmarking process under clause 11 which might, or might not, have led to certain results). The raising of such lawful options could not possibly amount to conduct which was unlawful, illegitimate or unconscionable. Nor, in any real sense, could any such action have negated the choices open to the garbage crews. They may not have found the choice particularly palatable but that was no basis for vitiating or setting aside the agreement to the changed work practices which were actually entered into in 2007. 363Council also rejected the USU's suggestion that the agreement reached in 2007 in relation to new work practices was somehow impugned or undermined due to a lack of adequate consultation. The evidence was that substantial consultation did in fact take place. Reference was then made to the different levels at which such consultation had occurred, and to the various letters in evidence. 364It was also submitted that the reference by the USU to the decision in Robertson v Marrickville Council [2003] NSWIRComm 394 was not relevant to the circumstances in this matter. The decision in Robertson concerned a breach of a clause of the Local Government (State) Award which specifically required the referral of the matter in question to the JCC. In this matter there was simply no similar referral requirement with respect to the amended working arrangements agreed to in 2007. Accordingly, Robertson did not assist the Commission in its deliberation. 365Council also rejected the USU's assertions concerning the failure to provide information under Clause 11.1 of the 2003 Agreement, that clause in its terms did not require the provision of any particular information to the USU and it was not an issue raised in the dispute notification. There was no evidence that if such a request had been made it would not have been complied with. Reference was made to Mr Swilks' evidence concerning the situation from 2008 onwards. In the circumstances, it was a furphy for the USU to now seek to complain about whether it was, or was not, provided with certain information some four to eight years ago. 366Mr Jauncey indicated that it was suggested in the USU's reply that the members now had a right to resile from the agreement reached in 2007 arising from Mr Littlewood's evidence that the 2003 changes were subject to a proviso that they remain in place for 12 months and after that could be renegotiated or reviewed by wither side. The USU's assertion being that this carried over to 2007 arrangements and thus gives either side the right to renegotiate or review. 367In response Mr Jauncey submitted that firstly it was a right to renegotiate or review, not to withdraw, and secondly, the letters sent by Mr Kelly in May 2011 were essentially seeking not a reversion to what they now said was the correct interpretation, but that they did not want to do it at all 368Mr Jauncey made clear that Council's position was it was prepared to have discussions with the USU about renegotiating or reopening the arrangement in relation to the amount of green waste work that needed to be conducted in the future and indicated that parties were currently (as at 22 June 2012) seeking to progress discussions for a new and more up to date agreement given that the last one was 9 years old. 369He went on to indicate that notwithstanding Clause 13.2, Council was prepared to waive any requirement that garbage crews pick up any green waste at all, provided the USU and its members agreed to draw the line over the issues and cease any claims or assert entitlements arising out of those matters. 370In conclusion it was submitted that the USU had failed to make its case that the agreement reached with garbage crews in mid 2007 as to the work practices to be adopted was in any way a breach of the 2003 Agreement. The USU had also failed to make its case that the agreement should be set aside or regarded as invalid in any way. 371Accordingly, Council submitted that the USU's application should be dismissed. Alternatively, should the Commission be against Council, then it was respectfully submitted that the Commission should confine itself to making orders in relation to future arrangements for the pick up of green waste by garbage crews. Any such orders should make it clear that garbage crews are required to pick up 50 "actual" presentations of green waste, and should not be limited to 50 "theoretical" presentations, given that the 2003 Agreement was clearly negotiated in the context of a "ticketed" system which required collection of actual allocated presentations of green waste bundles or bins. 372Mr Jauncey also submitted that there were a number of issues in the actual application for orders itself where orders were either unnecessary or drafted without using clarity of language. 373Mr Jauncey referred to problem of the way in which the term "collections" was variously used in different places in the Agreement to refer to both the pick up of household garbage bins as well as the pick up of green waste bins (Clause 13.1 and also Clause 14). There was also a problem in order 2, in that it referred to a theoretical maximum of 660 bins when it was clear from the evidence that the darg was an average figure used to design the garbage collection runs, and it was accepted by Mr Littlewood that some would be up, and some down, on that figure. Submissions in Reply on behalf of the Applicant 374The Overview Submissions filed by the USU (and referred to above) also responded to issues raised by Council in its Written Submissions. However Mr Barnes in subsequent oral submissions did clarify an number of matters. 375At the Commission's request the net effect of the orders sought was clarified with Mr Barnes indicating that if the USU's position was accepted then in practical terms the collection of 250 bins, however described, did not arise out of lawful and reasonable direction or through any other legal foundation of a proper basis in Clause 13.1 of the 2003 Agreement . On that basis the Commission would simply make the findings as suggested in paragraphs a) and b) and give the direction in c) that they refrain from issuing those orders and that the matter revert to what is the actual proper construction of the Agreement. That meant reversion to 50 collections with "collection" meaning a bin. The parties should then facilitate a process for working out runs to put that into effect. He also indicated that if Council said it was going to be a bit harder to give effect to the practical arrangements that was not a matter of concern because what was being dealt with was the recognition of existing rights 376Mr Barnes also indicated that what was meant was fifty actual collections of 50 green waste bins and if there was less that 50 bins they would take whatever was there. 377Mr Barnes emphasised that this decision was an important one and should be regarded "as a cathartic step in part, and new a way forward" rather than having "residual underlying distrust and uncertainty as to who is right and who is wrong." 378Mr Barnes also indicated that it was also a matter of legitimate concern to understand whether, on the facts, it should have gone to the JCC. If it had not gone to the JCC what were the consequences of that? If the requisite mandatory consultative process had not been undertaken it was submitted that it was not a lawful order or direction. 379Mr Barnes also indicated that there were some possible ramifications as to whether the men, through the Agreement, had an entitlement to claim moneys under the productivity agreement. That was controversial between the parties and may be capable of resolution following the decision. 380Mr Barnes also indicated that the importance of the USU's 2011 letters to Council was that it raised the point that the men had been doing the 250 bin work under protest since that period. 381Mr Barnes generally relied on the written submissions as filed. Consideration 382I have very carefully considered the extensive oral and documentary evidence as well as the extensive written submission of the parties in this matter. 383At the outset it should be indicated that it is unfortunate in the extreme that this decision has been necessary, and that the parties could not come to some sensible negotiated outcome. This was a course that the Commission urged on numerous occasions. I do not have a magic wand (as I had cause to observe on more than one occasion), and I cannot turn back time and undo what happened in either 2003 or 2007. Those events occurred, that is indisputable. 384What cannot be disputed is that, very regrettably, what appears to have been a very harmonious industrial relationship that existed between the parties, (particularly at the workplace itself) prior to 2007 has now become one in which each side (though to a slightly lesser degree on Council's side) seems intent of apportioning blame for what occurred in 2007 that is now said to be contrary to the 2003 Agreement, rather than agreeing that mistakes had been made on both sides let's move on and determine what should happen in the future. In the course of that process each side has spent inordinate time, resources and money (outrageously so I would suggest) on these proceedings to advance their respective positions of principle. 385The USU seeks that the Commission determine that Council varied the Waste Services Agreement 2 by bypassing the Union and dealing directly with its employees, the members of the Union, in contravention of both the Agreement and the Local Government (State) (Award. Also sought is an interpretation of the terms of the Agreement , it says, would revert the collection of green waste to the terms prescribed by Clause 13.2 of the Agreement. 386This would of course inherently require the Commission to exercise powers available under s.175. Powers of Interpretation of the Act as follows: 175. The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument. 387It should be indicated at the outset that, on the evidence, I am satisfied that once it was clear to Council that negotiations for a new agreement to cover the waste services employees (or rather their inclusion in one all- embracing agreement) were not going to succeed, that Council did not embark on some sort of course to vary the 2003 Agreement by some manipulation, or duress, or underhanded bypassing, of the USU. It is very, very clear to the Commission that Council did not consider that they had varied the 2003 Agreement at all, rather they were seeking to restore the duties envisaged by Clause 13.2, but translated/converted into the current context of the collection of green waste MGBs instead of the previous (and now discontinued service) weekly pre-booked ticketed collections of 50 loose green waste bundles. 388Having carefully considered all of the relevant evidence several facts emerge in crystal clarity in my view. 389Firstly, it is absolutely beyond doubt that faults, and mistakes, and lapses, or whatever one cares to call them, were made on three sides, not just two. The USU through its officers, the garbage workers that were the members of the USU, and Council through its managers. This will be expanded on below. However, each of those three must face up to the responsibility of accepting their share of this sorry mess. 390Secondly, I agree that the negotiated and agreed dargs of both the 1995 Agreement (an average of 1,113 bins), and the 2003 Agreement (again an average of 1,158) were only ever theoretical dargs based on 100% presentation of bins and would in actual fact have been incapable of ever being achieved particularly as from 2001, due to actions of Council in both withdrawing bins from service and the re-lidding exercise. Whilst there was some evidence of a slight increase in the number of bins on issue after 2003, the reality is that in 2007, while the maximum number of bins theoretically possible for collection on a darg of 1,158 across all the runs over the entire week (including the half runs) assuming 100% presentation was 28,950, there were in fact only 27,660 bins issued by Council based on Council's own figures. There was no evidence as to the number of bins on issue as at the date of the hearing. 391Thirdly, it is also clear that garbage workers were not achieving the full productivity aims of either the 1995 or the 2003 Agreements and never would be able to, but nevertheless Council were content to continue paying the $100 per week productivity bonus flowing from the 1995 Agreement, including between 2004 and 2007 when the men were only doing a half run on one day (the 660 bins) and not collecting the 50 green waste collections as agreed in the 2003 Agreement, with no suggestion that it would ever be withdrawn or reduced to match the actual productivity being achieved. On that basis I do not consider that there was any real threat, or intent to attempt to, or even serious consideration, to reduce the productivity bonus if agreement was not reached on Council's proposals in 2007. That would have flown in the face of what Council had been doing and would have invited serious industrial consequences. 392There was no evidence before the Commission as to what exactly were the benefits that flowed to workers as a consequence of the 2003 Agreement. There was reference to access to an 8% competency increase in common with all other Council staff, and then access to a possible 2% bonus, but the evidence was entirely unclear as to what actually resulted in monetary terms from the 2003 Agreement, or indeed what might have flowed in subsequent years as a result of movements in the Local Government (State) Award. 393What is also crystal clear from the evidence is that green waste was being picked up through a weekly service of a pre-booked and ticketed allocation system in either loose bundles of green material (but tied up) or in the collapsible bag/container. There had been a limited number of MGBs (either 140 or 240 litres) issued on a trial basis, but they too were subject to a pre-booked ticketed collection. That collection system was manually labour intensive requiring the physical picking up of the bundles from either inside a resident's property of from the area between the footpath and the kerbside that then had to be carried and placed in the truck often requiring more that one trip to collect the material. The collections ranged all over the Council area and that meant drivers could be driving from one end of the municipality to the other. Collections were not made on a designated run basis. Whilst it was clear that not always was the maximum allowable amount of green waste was booked for collection (2 cubic metres) it is also clear that householders would hardly have been booking up a collection for 2 or 3 bunches of dead flowers. 394Thus the Agreement emanating out of the 2003 negotiations for the collecting of "50 green waste collections" on the half day (with the other half run now having a theoretical darg of 660 bins) would in fact, in my very firm view, have meant that garbage crews would have had a more onerous shift, and a possibly longer shift on a 'job and finish' basis overall on that day, as compared to the normal full day run of the collection of household MGBs. That does not take into account any need tip a second time or to wash out a truck before collecting green waste, (or the time and effort involved to do such). 395It is also relevant to note that the cleanup crew were also making collections of material actually referred to as "collections", being household material of the kind put out in the twice yearly general cleanup. That service was also on a pre-booked and ticketed basis. 396Whilst the collection of the 50 green waste collections ceased at around the end of 2003 when Council transferred the collections to a dedicated green waste truck, the garbage workers continued to enjoy their half day run collecting household MGBS. I very much doubt that there would have been any objection to what Council were proposing and as Mr Jauncey rightly pointed out no-one from the USU said that this was contrary to the Agreement and that Council should maintain the status quo. This was also not a matter thought necessary to take to the JCC and no complaint was ever made about that. 397As a result of that change there was no suggestion by Council that, well we have workers who are only doing a half day run and therefore the runs should be re-jigged so that they are doing five full runs over five days per week. There is no doubt that as a result Council created the metaphorical rod for its own back and that situation continued up until the negotiations initiated at the end of 2006 and continuing into 2007. 398However, if the workers thought that was an equitable and fair situation and could continue on forever, then frankly they were living in cloud cuckoo land. Sooner or late Council were bound to examine the half day run and either restore some form of green waste collection or move back to a full day's run, redrawing all runs to increase actual collections closer to the theoretical 1,158, with implications that may have had for a reduction in the workforce. 399What is also crystal clear is that in 2003, 50 collections did not mean, or intend to mean, nor was it the practice to collect 50 MGBs on a run based system. As indicated above all concerned understood that it actually meant the picking up of 50 bundles, or collapsible containers, or a rare MGB (but still on a booked ticketed basis) of loose green waste material. 400Again, what is crystal clear is that by 2006/2007 there had been a significant change in that green waste was generally now being collected in green lidded MGBs, notwithstanding that there was still the ability to have a bundle picked up through a ticketed booked system (but it was not a service that was encouraged). 401There is absolutely no doubt whatsoever in my mind that Council's proposal in 2007 to translate/convert/equate what was encompassed in an actual green waste collection under the 2003 Agreement for 50 green waste collections was, and is, an eminently sensible and practical solution. I cannot conceive of how it could be done differently. Unfortunately the USU seems to have focussed on the use of terms such as "volume" and "litres", those are the mathematical terms for what was essentially being calculated which was a conversion of an amount or pile of loose green waste (that was supposed to be no larger than a specified size by cubic measurement) into a fixed container or a certain dimension. 402I should make the observation that having a more than average number of trees and shrubs in my own garden requiring pruning, or the subject of fallen branches due to occasions of high wind in a south facing aspect, and having actually carried out numerous exercises over the years of reducing a pile of green waste by cutting/sawing branches etc., into lengths short enough to be placed in a green MGB, I never ceased to be amazed at how such a large pile can be reduced sufficiently to fit into the MBG (but not always and sometimes only when spread over 2 or 3 fortnightly collections). 403Council's photograph comparison (Exhibit 36) showed a considerable pile of bundles of green waste in front of both a 140 and 240 litre MGB. It could readily be observed from those bins and the surrounds that the pile was at least 2 metres in length, at least 1 metre in width, and perhaps less that a metre high. Even my poor maths enables me to grasp that that would equate roughly speaking to almost 2 cubic metres. I would have thought on any consideration, or any practical exercise undertaken, that pile of material could not possibly fit into a single green MGB. Indeed Mr Wady had estimated that the all up total of converting the amount of green waste in 50 collections into the required number of MGBs to take that amount would be between 416 and 714 MGBs. 404It is also crystal clear that Mr Swilks was mistaken in basing the negotiations on the fact that the darg of 1,158 was an actual rather than theoretical figure. He acknowledged that mistake in oral evidence which was based on his experience and knowledge gained at Leichhardt Council. He could not use that to knowledge and experience of one other council to say it was an "industry standard" in the absence of any other evidence of what was happening at councils across the metropolitan area. I accept the mistake was an honest one. However, having said that if he had bothered to study the wording of Clause 11 of the 2003 Agreement he would have read in 11.1 "......a review will be conducted of the wasteload collections based on the number of bins requiring collection..." (emphasis added); and in 11.2 there is reference to "...an average of 1158 bins...".. While 11.3 refers to the number of bins available for collection which would appear to be a reference to the number of bins on issue (rather than put out for collection) it seems to me that the intent of the clause was to measure what was actually being collected and compare figures to see if there was either an increase or decrease requiring adjustment in the productivity measurement and hence payment. 405I do not consider that Mr Swilks set out to deliberately deceive in any way either the USU, or the waste services employees or was not bargaining in good faith. However, there was absolutely no doubt that he was correct, as higher management were correct, and clearly of the view that Council were essentially not getting value for money in terms of a productivity measurement under either the 1995 or 2003 Agreements, particularly when the half day run was taken into consideration. 406There is also absolutely no doubt that this arose through no fault of the employees concerned and was a situation entirely of Council's making. The employees had no control over how many bins were issued by Council nor how many bins were put out by householders, nor how many workers/crews were engaged and thus how many runs organised to collect the bins on issue and put out etc . They simply collected what was there. 407I also consider that there is no doubt that Mr Swilks was conducting negotiations with all due authority delegated to him, with the full knowledge of appropriate Council officers and indeed it is clear that on at least one occasion Mr Barratt the then Director of Corporate Services and Ms Hurria from HR were present at one of the meetings in 2007. 408That brings me to the entirely unsatisfactory evidence from both sides about the negotiations commencing in 2006 and into 2007. Both sides are frankly as bad as each other in terms of record keeping/recollections etc. The USU cannot find the Industrial file for the negotiations that year. Council did not put forward in any evidence as to any minutes of meetings apart from the extremely brief dairy notations of Mr Wady (which only relate to the meetings with the men in late May and June 2007). 409There are also gaps in the correspondence exchanged between the parties with letters of reply (both from the USU and Council) that seem to be missing, or were perhaps never written and sent in the first place. 410There is an absolutely appalling lack of any proper records of meetings between the parties being made or exchanged for verification. 411The only documentation apparently prepared, (apart from some letters) at some time in 2006 was Council's PowerPoint presentation (which was evidently printed up and available in hard copy) of the document entitled 'Waste Agreement 3 To Be Negotiated Commencing October 2006.' It outlined the history and broad, not detailed, proposals for negotiation for all three waste services (including green waste, recycling and cleanup). 412There was evidently a meeting in November but neither side provided a date when this occurred or any minutes/notes of the meeting or could even give a date when it took place. 413 While as was evident during the hearing in this document, Mr Swilks referred to, not only the darg of 1158, but the half day of 660 bins and "50 greenwaste bins", I do not consider that the USU can place any reliance on that as giving any credence or credibility to the interpretation they now seek to apply to the Clause 13 of the 2003 Agreement as Mr Swilks was clearly in error. There had never been 50 green bins collected on the half day as a result of the 2003 Agreement. 414There was also no indication in that document of how Council intended to seek the reintroduction of some form of green waste collection from the garbage crews on their half day. 415There may well have been more than one meeting in November or December or early January, because the next actual evidence concerns the USU's letter of 25 January advising that a meeting of members had rejected Council's proposals and further advised, inter alia, that a vote had been taken concerning "Status quo" and "Remove 50 green wast tickets." I note that there was no mention of "bins" or "MGBs". The letter also indicated that the Union looked forward to both the meeting on 2 February and a reply to the letter. 416Again, there was no evidence from either side as to whether there was in fact a meeting on 2 February or not and no letter of reply (if there was one) from Council in evidence. 417The USU witnesses were equally vague and unable to recollect in a detailed way all of the meetings in 2007. 418We then move to the 15 February letter from Council's General Manager to the USU and which referred to USU letters of 27 January and 7 February. There was also reference to a "deadlock has been reached, and in the last round of negotiations held on 9 February,..." (emphasis added). This would seem to suggest more than one meeting had taken place. There is then listed a number of bullet points to which both parties had agreed (retention of 5 trucks, no change in remuneration, 19 day month etc.), including very significantly the following: green waste bin collections to be reinstated to the equivalent of 50 green waste tickets. Details will be calculated by Jeff Swilks, Manager Business Units. (Emphasis added). 419Yet again there was no evidence from either side as to any minutes/notes of this (or any other) February meeting and indeed no evidence from anyone as to any recollection about such a meeting. Mr Swilks' evidence was that he recalled about three meetings during 2007 and that was as far as it went. There was also no evidence from either side as to any USU letter in reply to this 15 February letter from the General Manager. 420The General Manager's letter then went on to indicate that Council was now prepared to start negotiations with the Union to finalise the Recyclers Agreement and sought a time and date to commence such negotiations. 421Based on this letter it would appear that negotiations for the garbage workers were well and truly over and the only matter to be determined and agreed in the future was how Mr Swilks intended to calculate the equivalent of "50 green waste tickets". Again, I note the use of the language "green waste tickets" not bins. 422There was no concrete evidence from either side as to what transpired in the ensuing months until the 11 May letter from the USU concerning a meeting held that day about the Recyclers Agreement, an impasse being reached, and issues/questions raised for response which Council had requested to be put in writing. 423Again, of exceptional significance and relevance, in my view, was Question 3 which asked: "How many green bins are going to be collected by garbage". This can only have been a reference to the outcome of the calculation to be undertaken by Mr Swilks to equate green waste bin collection to the equivalent of 50 green waste tickets as foreshadowed in Council's letter of 15 February. 424Council provided a very detailed response by letter of 17 May to each of the 9 questions asked, and again very significantly and relevantly responded to Question 3 as follows: 3. It is proposed that the garbage staff will collect up to 250 green waste containers per day. This number is currently being clarified with the garbage collection staff, as you have been advised. The USU's assistance is sought to resolve this matter as soon as possible. It is noted that a meeting between Council and the USU are scheduled for 11 am on Friday 18 May to resolve the matter. 425The "as you have been advised" would also seem to suggest that the USU had been advised in some way, and at some time, that the clarification of up to 250 bins was being undertaken directly with the garbage collection staff. 426There was much debate in evidence and submissions as to whether or not this letter was received by the USU at all, or could have been received before the 18 May meeting. However now that I have considered all of the letters in context and the evidence, I wonder whether this letter was ever intended to be received by that meeting or whether it was purely addressing the queries in regard to the on-going and separate negotiations for the Recyclers Agreement. That would in fact be logical. That would then mean that the whole intention of the meeting of 18 May was purely to discuss the necessary equivalence calculation that had been undertaken by Mr Swilks. In my view this ties in with his evidence that he had only finished the method of calculation a couple of days before the meeting and the evidence of calculations being placed by him up on a whiteboard. 427I do consider however that Mr Swilks has confused both the set up ("u" shaped seating) and the location (being the training room) of the 18 May meeting. I would suggest that was what occurred in the original November 2006 meeting (attended by Wayne Moody from the USU). I also note Mr Wady refers to the same sort of meeting and with no mention of Ms Raffan. Mr Moody did not give oral evidence as he was not required for cross examination. 428I also note again significantly and relevantly from Ms Raffan's diary notes of the 18 May meeting, that the only subject matter referred to was the actual calculations of Mr Swilks as to how he arrived at 250 MGBs being equivalent to as she noted "- Green waste collections - 50 collections - 250 bins deciphered (?) by cubic metres into", then the word underneath of "Arbitration:" with an arrow down to the detailed calculation then set out below. 429Contrary to the view that negotiations just ended and then Council somehow bypassed the USU officials to deal directly with the men I consider that on the evidence (which is only now becoming clear) there is a very real question as to whether that was the intention all along and indeed I conclude that was the intention of Council and known to the USU officers. Unfortunately given the changes in USU officers and who seemed to have bobbed up at different meetings it appears to have been a case of the right hand not knowing what the left hand was doing.. 430Mr Swilks may well have talked in that meeting about the men not meeting darg or their productivity and "getting a free ride" and implied that if the 250 was not accepted then there could be adverse consequences. 431I also have no doubt that the men were fully aware that they had only been working a half day on one working day for some 3 ½ years and that could not continue. I also have no doubt that the men would have considered that they had no choice but to agree to the proposal and were genuinely concerned about the prospect of possibly losing money. Mr Swilks was no doubt blunt. However I accept his evidence that he could not have made such a decision or spelt out that there was any definite prospect of losing money. 432Indeed this is no different from the outcome of many a negotiation in a workplace over the years I would suggest where there are not the favourable outcomes sought by a union and its members and perhaps because of outside circumstances beyond anyone's control (economic factors, the state of a particular industry) unpalatable outcomes having to be accepted because members have no choice but to accept if they want their jobs to continue. 433Ms Raffan's recollection is somewhat unreliable. I also note that she was only just out of her 6 months probation and while that is no reflection on her, her lack of experience in council negotiations/meetings may well have meant she did not jump up and down (or recognise the full implication of what was being put) as might a more experienced official in response to Mr Swilks rather blunt exposition of the calculations he had arrived at, and the reinforcement of why the men now had to collect 250 green waste MGBs. 434The evidence from both sides about who was at the meeting on 21 May in the Muster Room is also quite contradictory and the only corroborative evidence is Mr Wady's contemporaneous diary note which is expressed in the first person ("met with Garbage staff..." and "Explained what...) There was no mention of Mr Swilks being present. That would seem to reinforce Mr Swilks' evidence that he did not recall being there and the only time he referred to productivity and the consequences of not agreeing to the 250 bins was in the meeting of 18 May. 435There is then the subsequent request by the now deceased Delegate Mr Mc Quillan about needing the actual runs proposed to "get it over the line". What other approaches he might have made, and to whom, are just unknown. 436What is also significant about the subsequent meeting of 4 June between Mr Wady and the men to consider the new runs was that it is apparent from Ms Raffan's diary note attached to her statement that she was actually at Council on 4 June attending a meeting about the Recyclers Agreement and made a notation about such. She lists names of persons involved including " Brian, Jeff", Charu, Oliver" and Paul which I consider refers to Mr Barret, Mr Swilks, Ms Hurria, from HR, Mr Wady and the head delegate Paul Mazotta, but there is no "Barry" - Mr McQuillan. 437This confirms the submissions of Mr Jauncey concerning the ongoing presence of USU officers at Council and that if the men genuinely thought they were under duress then they had the opportunity of raising it, it also would tend to suggest that the Union was aware that there were in fact direct discussions with the men. 438What is abundantly clear is that Council through both Mr Swilks and Mr Wady did not properly document what they were doing, meetings held and outcomes and have that conveyed in proper documentation from Council to the USU at the level of General Manager and General Secretary. Perhaps if they had any doubt or controversy could have been put to rest in 2007 instead of resurfacing down the track in 2011. 439What is also abundantly and crystal clear is that the USU, through its somewhat unusual turnover from 2006 to 2009 dropped the ball significantly in terms of knowing what was going on with its members or alternatively, or indeed in addition, the members through Mr McQuillan did not have a great deal of confidence in them. 440What is further abundantly and crystal clear is that notwithstanding that they thought they had no choice the men did not get back to the USU and say we are under threat or duress, or seek to agitate the matter, or raise a grievance/dispute, or take industrial action (as they had in the past as referred to by Mr Littlewood) or say Council have bypassed the USU and approached us directly we don't think that is right. They also must accept their share of the responsibility for what happened in 2007. 441In any event Ms Raffan moved on in August, was replaced by Mr Jamie Parker about whom, and from whom, there was no evidence whatsoever. I also note that it was Mr Aaron Neal the then USU Manager Legal and Industrial who sent Council a letter of 20 September 2007 concerning some 6 changes that had been agreed to in relation to finalising the separate "Green Waste and Recycling Agreement'. Another change in responsible personnel at the USU. 442Fast forward to 2009 and Ms Callinan takes over organising responsibilities and from then to May 2011 did not raise any issue concerning the collection of 250 green MGBs in contravention of the 2003 Agreement, nor apparently did the members raise any issue or demur. 443This brings me to a consideration of the meaning of the term 50 "collections" as appears in Clause 13.2 of the 2003 Agreement, the disputed provision. 444The Macquarie Concise Dictionary, (Macquarie Dictionary Publishers Pty Ltd, 2009 5th Edition) defines "collection", a noun, as follows: Collection n. 1. the act of collecting. 2. the clearing of letterboxes by a paid official. 3. a set of objects, specimens, writings, etc., gathered together. 4. a sum of money collected, especially for charity or church use. 445In each case what is being referred to are items that are more than one, and plural in number, just as the "collections" referred to were greenwaste bundles, that could be one or several, but were a number of branches, green material etc., but it was certainly not a reference to a single green MGB and therefore could not have meant or could be interpreted to mean 50 green MGBs. 446I consider that Mr Barnes has fallen into error in how he has relied on the term being used in that Clause. As Mr Jauncey rightly points out "collection" is used a noun in two distinct ways. Firstly, the after reference to the downsizing of the run to 660 bins it goes on to say "at the completion of the collection of those bins that truck will tip its load, here the noun is used to refer to "the act of collecting". It then goes on to say " and "return to collect 50 green waste collections". Here the noun is used to refer to a "set of objects gathered together". I note that house hold waste is also referred to correctly as bins as MGBs were being used for such collection. 447I also note, again as referred to by Mr Jauncey the reference in Clause 13.7 to the general clean-up collections where again "collections" is used in the 'gathering together of objects' sense. Also Clause 13.8 clearly notes the that "Greenwaste collections will be closed off at 100 collections per day" (until 31 August when from 1 September they will increase to 200 collections per day, per truck. 448It is also crystal clear that "collections' did not require definition at that time as everyone knew what was meant and the system/service which was being applied. At that stage, as Mr Littlewood's evidence showed there was no contemplation of a run based system of collection of green waste via MGBs. certainly some MGBs were being trialled but on request and still on a pre-scheduled and ticketed basis. 449The most recent and comprehensive authority on the principle of interpretation that I am required to follow is the decision of the Full Bench in Director of Public Employment by her agent the Commissioner of New South Wales Fire Brigades and New South Wales Fire Brigade Employees' Union [2008] NSWIRComm 158, which succinctly summarised four principles of statutory (and award) interpretation relevant to the issue to be decided in that particular case as follows: 40 First, statutory construction must involve a purposive approach. Section 33 of the Interpretation Act gives statutory recognition to the common law purposive approach in the following terms: In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object. 41 The approach required by s 33 does not depend on the existence of an ambiguity or inconsistency. It allows a court to consider the purposes of an Act in determining whether there is more than one possible construction: Mills v Meeking and Others (1990) 169 CLR 214 at 235. However, the requirement of s 33 is not a warrant for redrafting legislation nearer to an assumed desire of the legislature: R v L (1994) 49 FCR 534 at 538. In other words, in interpreting a statute the courts must determine what parliament meant by the words it used, not what parliament intended to say: Re Bolton & Others; Ex parte Beane (1987) 162 CLR 514 at 518; Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 459. 42 This point was recently confirmed by Spigelman CJ in Harrison v Melhem [2008] NSWCA 67 at [14] and [16] 14 However, the subjective intention of the Parliament, let alone of Ministers or Parliamentarians, is not relevant. What is involved is the search for an objective intention of Parliament, not the subjective intention of Ministers or Parliamentarians. (See eg Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 at 146-147 per McHugh J.) Indeed, often there is no relevant subjective intention at all. The words used may represent a compromise, without consensus, so that, in substance, the decision has been left to the courts. (See Brennan v Comcare (1994) 50 FCR 555 at 572-575; Wik Peoples v Queensland (1996) 187 CLR 1 at 168-169.) Even more frequently, indeed almost always in cases of difficulty, the circumstances in which the statute falls to be applied were not actually contemplated by anybody. Even if they were contemplated, a statement of intention in a Ministerial Second Reading speech will not prevail over the words of the statute. (Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 esp at [33]-[37].) ....... 16 The task of the court is to interpret the words used by Parliament. It is not to divine the intent of the Parliament. (See State v Zuma (1995) (4) BCLR 401 at 402; [1995] (2) SA 642; Matadeen v Pointu [1999] 1 AC 98 at 108; R v PLV [2001] NSWCCA 282; (2001) 51 NSWLR 736 at [82]; La Compagnie Sucriere de Bel Ombre Ltee v Government of Mauritius Privy Council, 13 December 1995, unreported; Pinder v The Queen [2002] UKPC 46; [2003] 1 AC 620.) The courts must determine what Parliament meant by the words it used. The courts do not determine what Parliament intended to say. (See Nolan v Clifford (1904) 1 CLR 429 at 449; R v Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 459; Wik Peoples v Queensland (1996) 187 CLR 1 at 168-168; Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1 at [10] and see the authorities discussed in R v Young supra at [5].) 43 Secondly, in CIC Insurance Ltd v Bankstown Football Club Limited (1997) 187 CLR 384 at 408, in referring to the principle of contextual interpretation, the High Court stated: ... the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means ... one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. See also Project Blue Sky Inc & Others v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]; Zoological Parks Board of New South Wales and Australian Workers' Union, New South Wales (2004) 135 IR 56 at [44]. 44 Thirdly, extrinsic materials may be considered for certain specified purposes in ascertaining the meaning of legislation: see s 34 of the Interpretation Act. Again, however, the content of any extrinsic material cannot be used to simply rewrite the terms of the statutory provision. As McHugh J observed in Newcastle City Council v GIO General Limited (1997) 191 CLR 85 at 113: Extrinsic material cannot be used to construe a legislative provision unless the construction of the provision suggested by that material is one that is 'reasonably open'. Even if extrinsic material convincingly indicates the evil at which a section was aimed, it does not follow that the language of the section will always permit a construction that will remedy that evil. If the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances. 45 This takes us to the fourth principle. In an address to the Clarity and Statute Law Society at Cambridge University in July 2002 ("Towards a Grand Theory of Interpretation, The Case of Statutes and Contracts"), Kirby J identified a number of general features of statutes and contracts that "may make it dangerous to assume that exactly the same approach to interpretation will be apt for both". In particular, his Honour noted: Whilst a written contract between private parties having large consequences may, on occasion, involve the need for great precision and go through many drafts, ordinarily there is less formality about most written contracts. At least this is so when compared to the preparation of legislation. In the nature of writing that expresses binding public law, legislation is addressed to the community at large and usually has no stated termination date. It is typically prepared by highly trained and expert parliamentary counsel. It is ordinarily accompanied by explanatory memoranda. It is introduced into the legislature with a ministerial second reading speech. Typically, this degree of formality is missing from private instruments... 46 Whilst awards are instruments to be construed according to the terms of the Interpretation Act, consideration should be given to the differences between statutes and awards. Some of these differences were referred to by Street J in Bond v McKenzie: But at the same time, it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result, as this award in fact did, from an agreement between parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. 47 Nevertheless, it would be untenable to attempt to construe the terms of an award according to the subjective intentions of the parties if, in doing so, it resulted in an unreasonable and unnatural construction having to be placed on the words of the award. In interpreting the provisions of an award the intention of the drafters must be ascertained by reference to the actual words used (and those words should be given their plain, ordinary meaning), thereby disclosing the underlying purpose or object of the award and its context, using that term in its broadest sense, including extrinsic material. Thus, attention must at all times be given to the meaning and effect of the award as it appears from the plain and ordinary meaning of the words used: see Zoological Parks at [43]. It is not permitted to attach to a provision of an award a meaning which the words of the award cannot reasonably bear: Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 at 321 (per Mason and Wilson JJ). 450Applying those four principles I am satisfied that one cannot simply take "50 collections" and now say it means 50 green waste MGBs. I reject entirely any such interpretation. I consider that there can be no ambiguity or inconsistency in the Agreement provision in question and the purpose of the provision was crystal clear. I also consider that what should be assessed is essentially what the drafters meant by the provision. This links into the fourth principle, which is of particular relevance for the approach to be taken in this matter, namely that "attention must at all times be given to the meaning and effect of the award as it appears from the plain and ordinary meaning of the words used". I do not consider that there is any doubt as to the plain and ordinary meaning of the terms "50 green waste collections". 451The third and fourth principles, namely consideration of the context and consideration of extrinsic materials, are also of some relevance in this matter and have generally been dealt with above (the system for the collection of green waste that was in place at that time). 452Two further issues need to be dealt with. Firstly, Mr Kelly's assertion (which was not really pressed in submissions) that the agreement reached in 2007 somehow contravened the Award provisions relating to the introduction of workplace change and technology. This is plainly incorrect. Mobile Garbage Bins had been introduced at least in, if not prior to, the 1995 Agreement (if such could be considered a technological change). Similarly, trucks with bin loaders were in use prior to the 2003 Agreement (if that could be considered a technological change). Thus in 2007 all that was being done, even if considered a technological change or workplace change of some kind, was no more or less than an extension of existing technology or existing work practices, that is the picking up of MGBs by trucks with bin loaders albeit that the contents of those bins were of a different material (green waste) and had a different coloured bin lid. 453Secondly, for much the same reason, I do not consider that the agreement reached needed to be taken to the JCC at all. I have carefully considered the examples relied upon by the USU to support its claim that in both 2003 and 2007 changes should have been taken to the JCC and were not and thus Council have failed to comply with the provisions relation to consultation. None of the examples provide by the USU (Exhibit 32) are an appropriate comparison. They are all matters that quite rightly should have been taken to the JCC but concern, variously, changes in working hours of a position, changes in position title, job description, restructuring, and establishment of new positions. I do not consider that changes in garbage runs or the manner in which waste is being collected (with the exception of tendering out) if it is carried out broadly within existing practices/equipment etc., requires consultation with the JCC in any way. That is a matter for the actual workers concerned who are entitled to have the benefit of the assistance of the USU if required and to also have resort to the established grievance settling procedures under the Agreement and Award if necessary. 454Having carefully considered the evidence and submissions of the parties and the authorities cited, I do not intend to grant the application for orders as sought by the USU and the application will be dismissed. 455However it would be remiss of me to simply dismiss the application in the light of the obvious ongoing dispute and mistrust between the parties and I intend therefore to make recommendations in this matter which it is to be hoped the parties will follow in the interests of resolving the disputation between them that has just gone on for far too long. The parties should be focussing on the future rather than obsessing about the past. If changes/corrections/ amendments need to be made then discuss those and implement agreed changes if necessary (but properly documented this time) and move forward on a practical and pragmatic basis. 456To assist the parties I have extracted, and summarise below what I consider to be the essential findings I have made: The darg of 1158 bins is a theoretical figure and given the number of bins on issue and the runs as they are currently constituted, could never be achieved even on a 100% presentation rate. Waste services employees can only collect what is put out and that is what they have been doing; Waste services employees have not been achieving projected productivity targets, but through no fault of their own; Council has been content to continue to pay the $100 per week productivity payment arising out of the 1995 Agreement; 50 collections of green waste in Clause 13.2 of the 2003 Agreement meant in 2003 the collection of 50 ticketed bundles/containers of green waste, not 50 MGBs, it still meant that in 2007 and it still means that in 2012. That was the intention of all parties at that time and the only interpretation that can be place on that provision, Mr Swilks was mistaken in his belief that the darg of 1158 was an actual darg or that it was an industry standard based merely on his experience at Leichhardt Council. Mr Swilks did not deliberately set out to deceive, or mislead in the negotiations in 2007; Negotiations were being conducted by Mr Swilks in the full knowledge of and with the delegated authority of Council and at times other appropriate higher level Council Officers were present (Mr Barrett). The USU had been put on notice in correspondence and meetings that it was intended to revert to a green waste collection on the half day and that Mr Swilks was to work on a calculation to equate the 50 green waste collections with collections in an MGB; That calculation and necessary discussion was to be carried out with the workers affected; Waste services employees may have perceived what Mr Swilks said as an implied threat of a reduction in pay but I consider that Council had no intention of doing so and Mr Swilks did not have the authority to suggest such; The calculations that Mr Swilks developed for the conversion of 50 green waste collections into equivalent MGBs is practical and I can see no other way of doing such a conversion; 250 green waste MGBs errs considerably in favour of the waste services employees and a more realistic figure would see a greater number of bins required to be collected; Waste services employees had every opportunity, if they were not happy with the agreement proposed, to take it to their Union and take whatever further steps they considered warranted. They did not do so; The USU had a regrettable turnover of responsible Organisers and a significant absence of continuity during 2006 to 2009; Both the USU and Council had an appalling absence of proper record keeping of meetings; There was a singular failure to properly document the outcome of negotiations in 2007 that is the fault of Council, but there was also a total absence of any follow up by the USU; and Waste services employees continued to collect 250 bins in accordance with the agreement reached in 2007 without raising any issues of concern until approximately May 2011. 457The Commission formally dismisses the application for orders sought by the USU. 458The Commission issues the following recommendations: 1)Council investigate the practicability and feasibility of installing bin counters on all its current fleet of garbage trucks. If that is not considered practicable/feasible then Council ensure that bin counters are installed on any new truck/s acquired by Council for the purpose of collecting Mobile Garbage Bins (whether for household garbage or green waste). 2)Waste services employees agree to continue the collection of 250 green waste MGBs on the half day run. 3)Alternatively, if it is considered that the equivalence/conversion calculation undertaken by Mr Swilks is incorrect or can be done another way then a practical, exercise should be undertaken whereby each side (Council and the USU/members) select a random greenwaste bundle each that has been notified for collection to Council and actually measure it, and cut it up (with both parties in attendance) for placement in a green waste MGB to test out whether that is equivalent. 4)If waste services employees or the USU have some other method of calculating such equivalence/conversion then that should be properly discussed. 5)The parties should more properly document agreements reached and keep proper records (in summary form only) of meetings held on important issues and exchange such records to ensure verification and clear understanding. 6)The parties should take all appropriate steps to vary Agreement 2 to give proper effect to the collection of 250 green waste bins 9or such other figure as may be agreed). 459This dispute matter is concluded and the application for orders dismissed. Elizabeth Bishop Commissioner ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 January 2013