C2001/4313, Transcript of Proceedings [2001] AIRCTrans 3610 (24 December 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 1676

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SIMMONDS

C2001/4313

AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION,
VICTORIAN BRANCH

and

EXPORT MEAT PACKERS PTY LTD AND OTHERS

Application under section 170LW of the Act
for settlement of dispute re alleged unfair
dismissal of union member and intimidating
behaviour of some company staff

MELBOURNE

9.07 AM, FRIDAY, 7 DECEMBER 2001

Continued from 20.8.01, not transcribed

PN1

THE COMMISSIONER: Yes, are there any changes to appearances in this matter?

PN2

MR RINALDI: Yes, Commissioner.

PN3

THE COMMISSIONER: In fact, I think the matter has only been before for conference, in the past, hasn't it?

PN4

MR DAVEY: No, there were formal proceedings at the start of last Tuesday, sir.

PN5

THE COMMISSIONER: Well, I will take the changes in appearances.

PN6

MR M. RINALDI: I seek leave to appear for Export Meat Processes Pty Ltd. I note that the listing of the matter referred to Export Meat Packers Pty Ltd. But I think that is an error. The company in question - - -

PN7

THE COMMISSIONER: Well, it is "and others". There are three - - -

PN8

MR RINALDI: It is "and others", is it?

PN9

THE COMMISSIONER: Yes. The listing says: "Export Meat Packers Pty Ltd and Others" and the matter was sent to Export Meat Packers Pty Ltd, Industry Park Enterprises and Export Meat Processes. There was some uncertainty on the union's side about just who the respondent is.

PN10

MR RINALDI: Who; right. As I understand it, we are dealing with the business of the morning shift at the boning room at the premises concerned. And that is operated by Export Meat Processes Pty Ltd. I don't know that I am instructed in relation to Export Meat Packers. I don't have - I haven't discussed them at all. But I do seek leave to appear for Export Meat Processes Pty Ltd. If the Commission please.

PN11

THE COMMISSIONER: Yes, thanks, Mr Rinaldi. Any objection?

PN12

MR DAVEY: Yes, a most strenuous objection, Commissioner.

PN13

THE COMMISSIONER: Before you make the objection, we will hear why Mr Rinaldi thinks that - we might as well hear why he is seeking leave to appear and then - - -

PN14

MR RINALDI: Yes. Commissioner, the matter has before you, I think, on a number of occasions in terms of conferences and also, I think, a formal on the record hearing recently. The company recognises the importance of the matter and the need to properly deal with it. And in recognition of that, it is considered that it is necessary for legal representation in order for the company to be adequately represented. Mr Oravec normally deals ably with all the matters of the company but this matter is such that it was considered necessary and desirable that the company be represented by legal counsel. There may be legal issues as well, of course, Commissioner, in relation to section 170LW in particular.

PN15

But it is really a combination of the grounds set out in sub-sections 43(3)(b) and (c) of the Act. It is a combination of the desirability that we can progress the matter more effectively with my representation and, secondly, that the company can't adequately be represented in a matter of this nature, particularly having regard to its past history without such representation. Those are the grounds for the application for leave.

PN16

THE COMMISSIONER: So what are the special circumstances that you - because you did rely in part on (b), I think.

PN17

MR RINALDI: Yes, yes, Commissioner. The circumstances are really a reference, in my submission, in this case, to the past history of the matter. There has been a number of appearances, a number of attempts to resolve the matter. They haven't been successful. And in those circumstances - they constitute special circumstances, in my respectful submission, as to why it is desirable to, if you like, seek the added input or the assistance of legal advisers.

PN18

THE COMMISSIONER: And in regard to (c) the company, in the past, as you have indicated, has been ably represented by Mr Oravec.

PN19

MR RINALDI: Yes.

PN20

THE COMMISSIONER: So it sounds like it is really (b) that - - -

PN21

MR RINALDI: Well, it is a combination of both.

PN22

THE COMMISSIONER: That is the key.

PN23

MR RINALDI: Commissioner, in this particular case, I think it is recognised now that Mr Oravec would have difficulty adequately representing the company. The issues may well become complex in terms of the section 170LW matter. But that is, if you like, to me, more down the track. And issues of what orders and so forth the Commission might be able to make. But in addition, there is the - and this perhaps goes back to paragraph (b) again. The hope, on the part of the company, that by bringing in the legal advisers and I have got the solicitor who is also here today, we may be able to actually progress a discussion, perhaps off the record, which may be able to resolve the matter as well. So, in other words, you have, if you like, new faces, which are hopefully bringing a fresh approach to the matter.

PN24

THE COMMISSIONER: God, I hope so. That is certainly a very attractive proposition, Mr Rinaldi, I must say.

PN25

MR RINALDI: That is the hope on the part of the company.

PN26

THE COMMISSIONER: And that is no reflection on Mr Oravec who has, I think, been a fount of common sense in this matter. It seems that it is a question of whether the others that are instructing you are prepared to enable the same access to common sense to apply.

PN27

MR RINALDI: Yes, well, we have had a lengthy conference yesterday afternoon and it is certainly the intention to do what we can to explore a resolution of the matter and that is part of what I hope to assist the Commission with.

PN28

THE COMMISSIONER: Yes. It is really establishing just what the matter is, in some sense.

PN29

MR RINALDI: Indeed, yes, that is right.

PN30

THE COMMISSIONER: Because at one level it is an issue about three employees, as I understand it. But at another level, there have been overtones and it has all certainly been the subject of discussion about the company's whole process of treatment of the workers on the day shift and the passing off of work to the afternoon shift. And its general approach to the way in which it operates that day shift, that seems to be underlining it. As you would be aware, I am sure from your conference, we have had people sacked for going home because certain ratios were kept. We have had job stewards sacked in circumstances that - well, the only circumstances available to the Commission were the circumstances that the union was able to bring to me because the company, on that occasion, not only didn't turn up but refused to respond to summonses to attend.

PN31

Now, that is the background with which we are dealing. And I am sure you are aware of that. But there seems to be something going on behind these three people that I can't really come to grips with.

PN32

MR RINALDI: Yes.

PN33

THE COMMISSIONER: And you are saying that you are across that, are you?

PN34

MR RINALDI: Well, to some extent, Commissioner. I certainly - my understanding of this matter is that it deals with the three employees or is concerned with three employees. I am sure that my client is happy to discuss broader issues, in conference, if that assists in the resolution of the matter before you. But certainly my understanding is that this matter relates to the three employees. I don't know what the intimidating behaviour referred to in the listing is, I must confess.

PN35

THE COMMISSIONER: Nor do I.

PN36

MR RINALDI: But perhaps that may come out. Anyway, Commissioner, those are - it is a combination of, if you like, the desirability and the - the desire to be able to resolve the matter, hopefully, with the assistance of my instructing solicitor and myself and the fact that the company, given the level that it has reached, can only be adequately represented by counsel, in particular if the matter does go into the somewhat arcane issues associated with section 170LW.

PN37

THE COMMISSIONER: Well, there is nothing arcane about 170LW, I would have thought. You mightn't like the decision but it is there.

PN38

MR RINALDI: Well, I will respectfully suggest that - - -

PN39

THE COMMISSIONER: Now, that is fine. The company is not a member of any employer organisation?

PN40

MR RINALDI: I am instructed that it is a member of the Australian Meat - whatever the name of the association is.

PN41

THE COMMISSIONER: National Meat Association?

PN42

MR RINALDI: Which I am not even sure - - -

PN43

MR DAVEY: The NMA.

PN44

MR RINALDI: The NMA. Is that the registered organisation?

PN45

THE COMMISSIONER: Yes, it certainly is.

PN46

MR RINALDI: It is, yes.

PN47

THE COMMISSIONER: It is the old Meat and Allied Trades Federation.

PN48

MR RINALDI: But it doesn't have - - -

PN49

THE COMMISSIONER: So they have chosen to go to solicitors rather than organisation?

PN50

MR RINALDI: It is a member but it doesn't have a lot to do with it, as I am instructed. It doesn't rely on it for advice.

PN51

THE COMMISSIONER: But relies on solicitors? I don't know that it is open to someone who is a member of an employer - a registered organisation to say that they can't adequately be represented, if they haven't gone to them, and then go along to solicitors and say, "I want that".

PN52

MR RINALDI: Yes. Well - - -

PN53

THE COMMISSIONER: In what sense can they not be adequately represented? Because they have chosen not to be adequately represented.

PN54

MR RINALDI: Well, that body has no knowledge of any of these matters. It hasn't been involved.

PN55

THE COMMISSIONER: Well, nor, until I suggest - nor until you were instructed did you.

PN56

MR RINALDI: No.

PN57

THE COMMISSIONER: So doesn't that come back to a situation where it is the party that has chosen the representation. It has the capacity to be represented by a registered organisation. It has chosen not to. So it is, therefore, saying that we are relying on 43 - sorry, 42(3)(c). Now, that makes 42(3)(c) operative at the option of the party. And I don't know that that is what the legislation is talking about, is it?

PN58

MR RINALDI: Except that in this case, Commissioner, my instructing solicitor has been instructed for quite some time. And is aware of the issues. And was able to brief me fully yesterday. Except in respect of the intimidating behaviour. Whereas the NMA has no knowledge whatsoever of the matter and has had no involvement and no advice role.

PN59

THE COMMISSIONER: But that doesn't alter the fact that that is the party that has chosen that course.

PN60

MR RINALDI: That is true.

PN61

THE COMMISSIONER: And thus doesn't it follow that it leaves no scope for the Commission, because the party is taking the decision not to involve the registered organisation, not the Commission? I mean, it is open to a party to say, "Well, we can't be adequately represented because we don't want to be represented by the organisation of which we are a member. And we want the solicitor." And on your submission, therefore, they should have the solicitor. I know that is not your words but that is the implication.

PN62

MR RINALDI: No, no, it is not. Well, my submission is, Commissioner, that you have got to look at the words of the paragraph. The fact is that at present, as we stand here at this moment, the party can only be adequately represented by myself and my instructing solicitor.

PN63

THE COMMISSIONER: And if we adjourn, we can overcome that problem.

PN64

MR RINALDI: Possibly. I don't know how long it would take - - -

PN65

THE COMMISSIONER: I mean, if I came to the view that it can only be adequately represented in that way - sorry, it can only be adequately represented by the - sorry, it - if I came to the view that it is not true that it can only be adequately represented by a solicitor, because it is a member of an organisation, and that organisation is currently not in a position to appear, then the prejudice can be removed by adjournment.

PN66

MR RINALDI: Possibly. But certainly if the matter was to proceed today the position is that it can only be adequately represented by us.

PN67

THE COMMISSIONER: But whose peril was that arrangement arrived at? The company surely. They made the choice.

PN68

MR RINALDI: Yes, they have made their decision that the only adequate representation for them is through us. And they seek leave of the Commission based on that. Certainly there is another theoretical option.

PN69

THE COMMISSIONER: And if the Commission came to the view that that wasn't the case because they were a member - I mean, if they weren't a member, it is a different thing.

PN70

MR RINALDI: Yes, yes.

PN71

THE COMMISSIONER: But if the Commission was of the view that, yes, they can be adequately represented by a registered organisation, so, therefore, there is no need - therefore, the provisions of 42(3)(c) just don't apply because it is not true that they can only be represented adequately by - but can be represented by the organisation of which they are member. And, of course, they can appear by right. And that is the difficulty I am having with your submission at the moment.

PN72

MR RINALDI: Yes. Well, I can't take it any further, I don't - - -

PN73

THE COMMISSIONER: I mean, I appreciate that they could only be represented if these proceedings were to proceed right now. I mean, if Mr Davey wasn't prepared to concede to an adjournment or if I wasn't prepared to grant an adjournment, then of course if I accept the premise that you are putting - - -

PN74

MR RINALDI: Yes.

PN75

THE COMMISSIONER: And I am not saying that I do. But if I accept the premise that you are putting that they can't represent themselves then we will see where we go with the rest.

PN76

MR RINALDI: Yes.

PN77

THE COMMISSIONER: But I would have thought that the "can only" has got a temporal quality to it. Sure. But I don't think it is open to the party, be it an employee or employer, to choose. Or indeed a union. Or indeed an organisation. I mean, if a union sought to be represented by counsel on the basis that it could only be adequately represented, then it would need to bring - I think it would have to go to the - well, particularly where it had a history of representing itself.

PN78

MR RINALDI: Yes.

PN79

THE COMMISSIONER: It would need to go to (b) to rely on that. And I understand your argument in regard to (b).

PN80

MR RINALDI: We do rely on that in addition to (c).

PN81

THE COMMISSIONER: Yes, yes, sure.

PN82

MR RINALDI: I don't think I can take either of them any further. Thank you, Commissioner.

PN83

THE COMMISSIONER: No, no, thank you, Mr Rinaldi. Mr Davey?

PN84

MR DAVEY: Sir, the primary issue that is before the Court, is the retrenchment of Lou Chadwick, Harry Turner and Charlie Adams. That is an issue that has been heard once, last Tuesday. There haven't been a number of hearings and conferences about it. All the other matters have been discussions on the job. Clearly, part of which Mr Rinaldi did not take part in those discussions. And the Commission has made a number of points that I was going to make in respect of representation. It is correct that this employer is a member of the National Meat Association of Australia and could have chose to use that organisation, if it so wished. In the past, Mr Oravec and others have provided advocacy for this company in a competent manner.

PN85

Mr Oravec and others are present in the Court and can provide that advocacy again. We look at section 42(3)(b); there are no special circumstances. This is a simple matter. There have been attempts made already to muddy the waters. And there will be further attempt to muddy the waters if Mr Rinaldi is allowed to represent the company. And in relation to seeking a bona fide resolution to this dispute and when we consider whether representation ought to be allowed, we have to look at what is at stake. And on Monday 12 November, Mr Chadwick, Mr Adams and Mr Turner were retrenched on instructions from Mr Bernie Cabral. Mr Cabral told myself that the reasons for the dismissals, there were too many boners and not enough slicers.

PN86

And that has since been reiterated this week, although we got away from that reasoning when the matter was before the Commission last. But that has been reiterated this week in discussions I have had with a senior director of the company, Mr Gilbert Cabral, who is in the Court today. He reiterated that that was the reasons for the dismissal. Now, on the last occasion, we told the Commission that if that reason was in fact genuine, that it could have been addressed in a number of manners, short of having to retrench some people. I make no bones about the fact that I think that that is an absolute sham. That the real scenario is something other than that.

PN87

Because the Commission would recall, we suggested that if that was the real problem, too many boners and not enough slicers, it could have been simply resolved by (a) employing more slicers. And we have given the company the names of a number of competent slicers that they could employ. (b) moving some of the people from the afternoon shift to the am shift. (c) advertising for more slicers or training more slicers. And, in particular, (d) and that is, some of the boners could go slicing. And Mr Dove, the delegate there, has provided the company with a list of boners who are prepared to go slicing, which would have resolved the problem if their reason was truthful in the first place, and there would have been no need to retrench Mr Chadwick, Mr Adams and Mr Turner.

PN88

So it was only after we countered that argument that we were then presented in the Commission with a number of different reasons for the retrenchments. And that is what led to the subpoenas and, hopefully, the evidence that will be produced here today. And it remains my view that the sort of later hindsight type reasons are not genuine and will be dismissed as much when the evidence is produced. But if the Commission is of a mind to give them credence then, you know, we make the following point. My recollection is that there was discussions, unfortunately we don't have benefit of the transcript from the last occasion and my memory isn't that fine as to distinguish what was said on the record and what was said in conference, but generically matters were raised other than the problem in relation to the number of boners and slicers and the primary one from Mr Oravec was that there wasn't enough work.

PN89

And that was the real reason these people were put off. And then he made mention of problems with Workcover and problems with absenteeism and my recollection is that is when the Commission said, "Well, we need facts about that. We need evidence about that." And that is what we want to bring forward today. They are simple matters. And they are matters that shouldn't be clouded by allowing legal representation on behalf of the company. With regard to the reason of absenteeism and Workcover and the issue of there not being enough work, that is why we have subpoenaed records of various other companies to establish that that is not the case. Sir, the EMP Room, that is the ex - the EMP Room of ex P & R employees has always done Coles' boning.

PN90

In order to maintain the level of production prior to the three retrenchments on 12 November, the union needs to be able to produce evidence and it is our belief will be able to produce evidence if the subpoenas are complied with, that nearly - somewhere in the vicinity of 1700, perhaps more than that, perhaps up to 2000 quarters of beef are available for processing every day. I believe that the records produced by Coles, O'Connors and possibly Ovens River will demonstrate that, if they put forward in such a way as to demonstrate some clarity. And we say and we will be submitting strongly that that shows that there is clearly far more than enough work, not only to keep Mr Chadwick, Mr Adams and Mr Turner employed, but indeed, a number of others as well.

PN91

The real scenario, we say, is that what was outlined, I think, before Deputy President Kaufman. That what this is really all about, and we don't shrink away from it at all - what this company is really all about is taking work away from the day shift, sacking the day shift and transferring that work to a sham labour hire organisation in order to undermine the wages, conditions, health and safety and protection that the union organisation affords to the day shift. Sir, we don't intend to go over the litany of dismissals that has taken place in the past. The Commission is well aware of that.

PN92

And the Commission is well aware that on every single occasion, those dismissals have been shown to be a sham and the union has been able to establish that and those people have been reinstated and, in the main, they have been reinstated with full payments. In my view, that reflects the dishonesty and shameful way in which the company has attempted to undermine these people on the day shift. Each and every one of those dismissals was found to be unfair and each sacked worker was reinstated, mostly with payment for lost time. If the kill numbers - there may be no dispute about the kill numbers. And if that is the case, this is very simple. We will be seeking obviously the reinstatement of Mr Chadwick, Mr Evans[sic} and Turner.

PN93

We certainly put the other side on notice now that we will be claiming payment for lost time. And if the matter is dragged out further beyond today because the Commission, for some reason or other, allows Mr Rinaldi to stay, then clearly those arguments will be put more forcefully in respect of the payment for those people. It is my view that if Mr Rinaldi is allowed to appear, it will only compound the chicanery that has taken place already. There are no special circumstances. This is a simple matter. The company has provided its own advocacy on many occasions in the past. And it has people in the Court that have direct knowledge, as opposed to indirect knowledge of the matters that have happened. And I would urge the Commission most strongly not to allow Mr Rinaldi to appear. Thank you, sir.

PN94

THE COMMISSIONER: Yes, thank you. Mr Rinaldi?

PN95

MR RINALDI: Well, other than to ask the rhetorical question whether my friend was in effect accepting my appearance by going into substantive submissions, I have nothing to add to the submissions I made in relation to the application for leave.

PN96

THE COMMISSIONER: Yes, thank you. This matter is an application for leave by counsel. There has been an objection by the other party. In that case, it is a question of the Commission's discretion. And in particular, being satisfied, having regard to the subject matter of the proceedings, that there are special circumstances that make it desirable that the parties be so represented, that is, by counsel, or - and I note that word "or". That the party can only adequately be represented by counsel. The other words don't arise because it is only counsel that is seeking representation. Dealing with the last matter first. I am not satisfied that the respondent can only adequately be represented by counsel.

PN97

It is a member of the National Meat Association. If has chosen not to brief the National Meat Association, then it has done so at its own peril and that doesn't provide, in my view, any basis for the Commission to be satisfied that it can only adequately be represented by counsel. The other limb is, of course, somewhat more difficult. The circumstances involved here are rather complex and I must say they are circumstances that I have not encountered before.

PN98

From my own experience, the circumstances include these matters: An employer who has thumbed its nose at the authority of this Commission in the past by both failing to attend proceedings, having been notified of those, with some spurious last minute excuse; and despite having been summonsed to attend or individuals from the company having been summonsed - and when I say individuals, they are senior officers of the company, having been summonsed to attend, have failed to attend without excuse and subsequently have attended without apology for non-attendance; there is also a wide ranging, I think, dispute between the union and the company which is not strictly before me in these proceedings, but which overlays the specific proceedings.

PN99

That is, what amounts to an application for reinstatement under the disputes settlement procedure of three members. And on balance, I am satisfied that those circumstances are special enough to justify the granting of leave for Mr Rinaldi to appear. And I so grant leave. Yes, mr Davey?

PN100

THE COMMISSIONER: Mr Davey, before you do start, I did hear something before from Mr Rinaldi that he saw some advantage in a conference, but before I hear your views on that, there is the matter of the summonses. I issued the summons in accordance with my normal practice, but I'm not convinced, in my own mind that they are returnable under the sort of proceedings that we've got and I need to hear whether there's any objection to the return of the summons.

PN101

MR RINALDI: Commissioner, perhaps we don't need to go into that. Perhaps I can assist the Commission by saying that in essence perhaps we don't agree with the extent to which it was put by Mr Davey, but we agree that the amount of work is not the issue here. We have looked back at that and it can be said that the reasons - - -

PN102

MR DAVEY: Well sir, this is why I objected to this man appearing because that was raised last occasion.

PN103

THE COMMISSIONER: Yes, I know I understand that.

PN104

MR DAVEY: He can't come here and say that's - - -

PN105

THE COMMISSIONER: Well look Mr Davey don't counter with my ruling please. I mean it's just proved, if you like, the advantage of having him here, because all of that stuff that we were being told in conference and he's here under some sort of principle, he's obliged by his own ethics of his own profession, not to mislead the Commission, whereas it would appear that others have been misleading the Commission in conference and that's one of the advantages I see of having him, but you're saying that that's not an issue now.

PN106

MR RINALDI: The lack of work is not an issue.

PN107

THE COMMISSIONER: Despite what was said in conference.

PN108

MR RINALDI: What was said in conference, as I understand by Mr Oravec was his belief at the time, that has been checked and that was an error, that there is not a lack of work issue here at all. It is indeed that it was initially identified that it's all about the ratios Commissioner. It's the ratios between boners and slicers, that is the issue and for those reasons and we attempted to call Mr Davey yesterday afternoon, but it was quarter to 5 and he had gone, to tell him that we really didn't see the need for these people who had been subpoenaed, to attend.

PN109

So, whilst there may be some technical issues about whether in fact the subpoenas are valid, if you like, or summonses, in our respectful submission there is no need for that evidence. I think they did extend - I had a copy of the summons, or one of the summonses, it did extend to an issue regarding work cover premiums certainly with ESP, that may have some tangential relevance, purely by way of contrast to what the work cover premium levels are with my client, but I am sure that we can discuss that in conference.

PN110

So that's certainly one of the issues looming in this case about why the employer takes the approach that it does. The level of work cover premiums being at 44 per cent as I am instructed, of salary. But, unless that matter is seen to be of particular importance my submission would be that those subpoenaed ought to be relieved from attendance and if you wish me to make submissions on the validity of the summonses, I can turn my mind to that, but if my friend is happy to accept that that is not an issue, the amount of work, then it becomes clear that almost entirely the evidence that was sought is no longer relevant. Indeed, I would be objecting to it on the grounds of relevance if it was sought to be lead.

PN111

THE COMMISSIONER: Mr Davey?

PN112

MR DAVEY: Well, this is exactly the sort of reason sir, why, you know, we objected in the first place and I don't think the company has the right to come along here and move the goal posts again. We have come here prepared to answer the rationale that was put to the Commission last week. You can't come along and now say, well we want to change all that today, someone was telling fibs last week and you know, we're going to be shown up, because the union's going to be proven correct if that evidence is called, so now no longer want to be part of that.

PN113

THE COMMISSIONER: Could I just stop you there. Mr Rinaldi I am sure Mr Oravec was acting honestly and wasn't telling fibs, but he was being told by other people, who would have known and so fibs must have been told somewhere along the line. Because he was being instructed that the numbers had decreased. He wasn't just making that up himself.

PN114

MR RINALDI: Well my understanding, such as it is and it's only my understanding is that that was an assumption made by Mr Oravec, I don't know that he was instructed to say that, but I haven't sought specific instructions on that point Commissioner. What I would - - -

PN115

THE COMMISSIONER: All right, I was present in the conference and it was done in conference, when Mr Oravec turned to someone else and obtained advice on that point.

PN116

MR RINALDI: Yes, right, I see. Well it may well - - -

PN117

THE COMMISSIONER: Now I am not going to, you know, it's a matter that was done in conference, it doesn't go any further, but I don't think it's open to you to object, having not been there to say that that wasn't what was said. I didn't understand Mr Davey to be accusing Mr Oravec of telling fibs and he can correct himself if he likes.

PN118

MR RINALDI: He said that a moment ago sir.

PN119

THE COMMISSIONER: What that Mr Oravec was telling fibs?

PN120

MR RINALDI: Yes, the company told fibs.

PN121

THE COMMISSIONER: I didn't understand, he said, others - that fibs were told as I understood it, he didn't name anyone.

PN122

MR RINALDI: What I did understand from his opening sir, was that he mentioned that - Mr Davey mentioned that Mr Gilbert Cabral told him, I think he said a week ago, or earlier this week, that the real issue, the real reason was the ratio of boners to slicers and it's not something that's just been raised again today for the first time, that is the real issue and with respect we're happy to talk about that issue.

PN123

MR DAVEY: Well sir, if that is the real issue, that's already been canvassed, we've already given reasons why that's not a real issue and how it can be overcome and if - - -

PN124

THE COMMISSIONER: But sorry, can we just deal with this very narrow issue. I mean I understand your concern, he's in and that's that. Could I just make the point, that what we're talking about now is the relevance of the subpoenas, there are people - I presume there are people here in response to those subpoenas, if it's not an issue about the amount of work, if they're conceding the amount of work has not declined, you know, the amount of work that's done for Coles, has not declined, then with the exception of that matter going to the work cover premiums for ESP Tech Force on the afternoon shift and that narrows the area, is there any point in these people hanging around?

PN125

MR DAVEY: Well I don't think so, but you know, how do we know the goal posts aren't going to change again. Now we covered the original argument - - -

PN126

THE COMMISSIONER: Because he said that that's what it is and if he wants to get up and do that, I mean.

PN127

MR DAVEY: Well, they've done it once already, I mean how many more times are they going to do it.

PN128

THE COMMISSIONER: Have you got final instructions on this Mr Rinaldi?

PN129

MR RINALDI: Yes, I have. I am instructed that we do concede that the level of work for Coles has not decreased and the issue that caused the termination of the three employees was not lack of work, it was the difficulty with too many boners and not enough slicers.

PN130

THE COMMISSIONER: Yes, right.

PN131

MR DAVEY: Well sir, if that's the position, fine. We covered those arguments last time and when we covered those arguments that was when the company realised they had a bit of a problem, because we offered them many different ways they could overcome that problem short of retrenching people. It was then that they raised all these other arguments. Now, if that's the position really we don't need to proceed today. Perhaps we could put Mr Dove in the box just to confirm some of the submissions that I made last week, but if we're confined to that then the case has already been run basically and all we require is you to make a decision.

PN132

THE COMMISSIONER: Look at the moment the matter that's before me is the return of the summonses and I have to deal with that, one step at a time, I appreciate that you want to get on and do the other thing, but is there any point in requiring these people to remain here?

PN133

MR DAVEY: Well, you know, I have to take Mr Rinaldi at his word and I assume then that they won't be raising those arguments again, any of them, except the one issue of the slicers and if that's the case then obviously I have to accept his word on that and there's no need for the people that were summonses to be here and you know I think the company ought to apologise to them for wasting their time.

PN134

THE COMMISSIONER: Well, that's a matter for the company. The summonses addressed to Mr Howe, Mr Webb, Mr Kevin O'Connor and Mr Jobson are hereby discharged, you are free to go. Well, that got the numbers down didn't it. Now, the issue of proceeding into conference Mr Davey, do you have a problem about that?

PN135

MR DAVEY: Sorry sir, I was talking to Mr - - -

PN136

THE COMMISSIONER: Well there was the offer of going into conference.

PN137

MR DAVEY: Well, I mean we went into conference last week and - - -

PN138

THE COMMISSIONER: But they were represented by different people.

PN139

MR DAVEY: Yes, and we got nowhere and we're going to canvas the same issues, I think you know we've put the submissions, all that remains really is for me to call Mr Dove to confirm that position and for you to make a decision.

PN140

THE COMMISSIONER: Well, I'm not satisfied the conciliations at an end and I am going to adjourn the proceedings and get a conference and see if we can resolve the matter in that way.

NO FURTHER PROCEEDINGS RECORDED