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.