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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
Tel:(08)8205 4390 Fax:(08)8231 6194
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER SIMMONDS
C2001/1625
AUSTRALASIAN MEAT INDUSTRY EMPLOYEES
UNION, THE SOUTH AUSTRALIAN BRANCH
and
T AND R MURRAY BRIDGE PTY LTD
Notification pursuant to section 99 of the Act
of a dispute re allowing union access to employees
within the plant
ADELAIDE
12.04 PM, THURSDAY, 12 APRIL 2001
PN1
THE COMMISSIONER: Yes. Could I have the appearances, please?
PN2
MR G. SMITH: I appear for the AMIEU.
PN3
THE COMMISSIONER: Yes, thank you, Mr Smith.
PN4
MR S. MOIR: I appear on behalf of the respondent, appearing with me is J. RATTUS.
PN5
THE COMMISSIONER: Are you an employee of the respondent?
PN6
MR MOIR: Sorry? No, sir, I am .....
PN7
THE COMMISSIONER: So you seek leave?
PN8
MR MOIR: Sorry, sir, in the first instance, if I could seek leave to appear.
PN9
THE COMMISSIONER: Yes. Yes, thank you, Mr Moir. Any objection, Mr Smith?
PN10
MR SMITH: As much as I would like to but, no, no, sir.
PN11
THE COMMISSIONER: Leave is granted. Yes, Mr Smith? Mr - - -
PN12
MR MOIR: Sir, if I may, on behalf of the respondent we would seek to raise an issue of jurisdiction in regards to this application. If it please this Commission I may just move forward on those submissions. Sir, the respondent submits that the application before the Commission today cannot be found to be an industrial dispute in respect of 285G(1). The respondent does not contest that the dispute can arise - a dispute can arise out of division 11A of part 1X of the Act without the constraints of section 4, they are not the matters of this argument. The jurisdiction issue raises itself in regards to the instrument that governs the employees at that site and the specific requirements contained in the Act.
PN13
The application is looking for unhindered right of entry pursuant to section 285C. Sir, if we turn to 285C it clearly says, and if I quote in part, it confers power upon a person who holds a permit in force under division 11A of the Act to enter premises in which:
PN14
(a) work is being carried on to which an award applies that is binding on the organisation on which the person holding the permit is an officer or employee...
PN15
And it goes on with an "and". Sir, the attention I wish to draw is to the term to which an award applies. In respect to the respondent's premises at Murray Bridge all employees are employed pursuant to Australian Workplace Agreements and that specifically covers all employees who are members of, or eligible to become members of, the union in this application. To support the argument we need to look to section 170VQ(1) relating to Australian Workplace Agreements. In part that states:
PN16
During its period of operation an AWA operates to the exclusion of any award that would otherwise apply to the employees' employment.
PN17
THE COMMISSIONER: Sorry, VQ?
PN18
MR MOIR: Sorry, 170VQ(1).
PN19
THE COMMISSIONER: Yes.
PN20
MR MOIR: Sir, the important reference there is "to the exclusion of any award that would otherwise apply". Those same provisions are further mentioned in 170VQ, sorry, in reference to State Awards and enterprise agreements. It is clear from the words in this section that the award does not apply where there is a valid AWA in place.
PN21
THE COMMISSIONER: Only to the employees' employment, isn't it?
PN22
MR MOIR: To the employees' employment?
PN23
THE COMMISSIONER: Yes, but the phrase in 285C(1)(a) is:
PN24
Work is being carried on to which an award applies...
PN25
It is talking about the work, not the employee.
PN26
MR MOIR: We say, sir, that the work is being carried on pursuant to the provisions of the AWA in that regard.
PN27
THE COMMISSIONER: Yes, I understand that, but the work is being - but the object of 170VQ, the operation of that, is the employees' employment. The object of 170 - sorry, the subject, I suppose, of 285C(1) is work. Now, the - I mean, I don't know whether there is a distinction or a difference, I am just raising the question.
PN28
MR MOIR: Sir - - -
PN29
THE COMMISSIONER: It seems to me that they are potentially talking about two different things.
PN30
MR MOIR: Sir, I hear what you are saying but in respect to our submissions we say that they are one and the same, that - - -
PN31
THE COMMISSIONER: How can that be?
PN32
MR MOIR: The 285C(1) is talking about the application of an award and you are pointing out that that application is to the nature of the work as opposed to the employment provision.
PN33
THE COMMISSIONER: Well, that is what the section says, that work is being carried on to which an award applies and then the binding nature of it is on the organisation of employees.
PN34
MR MOIR: Is the second part, yes.
PN35
THE COMMISSIONER: Yes. Now, it is clear that the award - I mean, if you are right about all the employees being under AWAs, it is clear that the award does not apply to those employees but, see, it would be easy for the Parliamentary draftsman to have said that, that work is being carried on by employees to which an award applies. Now, the absence of those words suggests that perhaps it is talking about the scope of the award and - I don't know. I mean, I raise it because I don't know and I am so far not persuaded by what you are putting - - -
PN36
MR MOIR: Right.
PN37
THE COMMISSIONER: - - - that they are the same thing, that is all. They may be.
PN38
MR MOIR: Yes. Well, sir, in terms of our position, we take the view that 285C is talking about the application of award. If we look at the word - the literary meaning of the word "apply" if we take a dictionary, and for this purpose I have used a Websters Pocket Dictionary, and it says in there under "apply":
PN39
To bring to bear; to put into practical operation or to put to use and to have a bearing; be relevant.
PN40
On that basis we say the award does not meet any of those characters.
PN41
THE COMMISSIONER: The award does have application at those premises because the AWA must be tested against the award for the purpose of no disadvantage, so it has that application for starters.
PN42
MR MOIR: It does to that extent but - - -
PN43
THE COMMISSIONER: Well, that may be sufficient, might it not?
PN44
MR MOIR: Well, that is a question that may need to be answered, sir.
PN45
THE COMMISSIONER: Yes, well, I might have to answer it, but, yes - - -
PN46
MR MOIR: Yes, that is correct.
PN47
THE COMMISSIONER: - - - but that is what I am talking about in terms of application, the award - it is not as though the award has no application at all. That when the Employment Advocate comes to test an AWA for the purpose of section 170VX, it is to an award - I don't know which award, but I presume the National Meat Award or something - that he must give attention and therefore the award would have application to that extent at the premises to the work, interestingly.
PN48
MR MOIR: Yes, I take your points on those matters, sir, but - and you are correct, that is a decision that you will need to come to - - -
PN49
THE COMMISSIONER: Yes.
PN50
MR MOIR: - - - and I suppose for the matter to go ahead on other merits - - -
PN51
THE COMMISSIONER: I am really talking about in terms of your definition of "application".
PN52
MR MOIR: That is right, yes.
PN53
THE COMMISSIONER: Sure, it is a very narrow compass of application but it might be sufficient.
PN54
MR MOIR: As I was saying, sir, that may take us over into the need to discuss the merits of the application in full.
PN55
THE COMMISSIONER: Yes, yes, and you are raising a - - -
PN56
MR MOIR: Yes. If we look at the issue of the bearing and the intent of the clauses, and you have rightly raised "work" as opposed to "employment", I suppose if we step back to section 285B(1), which is the precursor to - or the first lot of powers that a permitted person has, and that is to enter and view documents for a suspected breach, it reads in part - - -
PN57
THE COMMISSIONER: Gee, there is a thing in there that suggests that you are wrong, does it not? They can actually look at any other documents other than an AWA, and if you were right there would be no need for those words, they would have no work to do.
PN58
MR MOIR: Well, no, I take the contrary view on that, and I will lead up to that, if I may.
PN59
THE COMMISSIONER: Okay, okay, yes.
PN60
MR MOIR: If I can just keep on to respond back to "apply", whether it is work or whatever else, if we look at 285B(1) it supports what I say is our submission insofar as to specifically refer to:
PN61
A suspected breach that has occurred in or occurring of (a) this Act, or (b) an award, an order of the Commission or a certified agreement that is in force and binds the organisation of which the person or officer is an employee.
PN62
We say that there is not an award in force. Now, if you then read further through the provisions to automatically come to 285C we say that is a continuation of the intents under B. It - - -
PN63
THE COMMISSIONER: No, no. You can say it but it is not right. It is a separate section. It even says: a person who holds a permit in force under this division may enter premises in which for the purpose of holding discussions.
PN64
MR MOIR: That is right.
PN65
THE COMMISSIONER: I mean, there are two purposes, one is to investigate and one is to hold discussions and they are separate and distinct, 285 - - -
PN66
MR MOIR: The access or the application of them - not application - yes, they deal with two different issues, I agree with that.
PN67
THE COMMISSIONER: Yes, and you can enter for the purpose of - - -
PN68
MR MOIR: Yes.
PN69
THE COMMISSIONER: - - - having discussions or you can enter for the purpose of - - -
PN70
MR MOIR: Investigation of a breach, that is - - -
PN71
THE COMMISSIONER: - - - investigating breach. Now, you might be right about the investigation of a breach, although - because it does talk about a breach of the Act and there are breaches of the Act that are possible without requiring an award to be in place, that is the first - - -
PN72
MR MOIR: Part of because it is an "or" in this case as opposed to an "and".
PN73
THE COMMISSIONER: Yes.
PN74
MR MOIR: Yes.
PN75
THE COMMISSIONER: And that is the first difficulty you have in your argument that - and it goes to the earlier argument that the right of entry, for the purpose of inspecting breaches, can be for a breach of the Act, which in itself would not require an award to be in force.
PN76
MR MOIR: That is correct.
PN77
THE COMMISSIONER: So that purpose could not be achieved if you were correct with your first interpretation, that is that there had to be an award in force, in practical force.
PN78
MR MOIR: If they were going to pursue a breach of the Act, for - - -
PN79
THE COMMISSIONER: Well, for example, that the employer wasn't keeping the appropriate records as required by the Act, or that the employer had terminated somebody without due notice which would be a breach of the Act, or surprisingly that the employer had paid someone while they were undertaking industrial action - - -
PN80
MR MOIR: Industrial action, yes.
PN81
THE COMMISSIONER: - - - which would be a breach of the Act. All of those purposes don't require the existence of an award, and they are just some examples, I think there is probably some others.
PN82
MR MOIR: I accept that, sir, but in regards to B of that section, the point I am bringing to - - -
PN83
THE COMMISSIONER: Yes, yes, but you only have to have one or the other.
PN84
MR MOIR: Or the other, that is right.
PN85
THE COMMISSIONER: Yes, you don't have to have both.
PN86
MR MOIR: No. No, and I wasn't saying that in the first instance, sir. What - the attention I was bringing to here is (b) saying "an award or other order of the Commission or a certified agreement that is in force," and my line of argument was that for something as serious as a breach it still requires that, in our issue here, that an award be in force. We argue that the term "in force", "to be in force" is the same as the word "applies" - - -
PN87
THE COMMISSIONER: Let us say you are right about that, and I think you might be - well, they are not the same because they use the same words, I mean, Parliamentary draftsman, you can't actually - I mean, the argument goes the other way, that they have used two different words so they mean two different things, but that is - - -
PN88
MR MOIR: Well, that can be an argument.
PN89
THE COMMISSIONER: Yes.
PN90
MR MOIR: But to finish off that sentence - - -
PN91
THE COMMISSIONER: Sorry, I am - - -
PN92
MR MOIR: - - - sir, we say that the words "in force" and "applies" both lend themselves to the practical application, bearing or relevance definition under the dictionary. If we further - sorry, sir, did you want to finish your comment on that before I go on?
PN93
THE COMMISSIONER: Well, I just wonder why - I mean, those words are not the same. In 285B, leaving aside the discussion about the Act, it uses a different form of words and I think you are correct in your analysis of 285B(1)(a) - (1)(b), I am sorry, that that requires there to be in force at the premises an award binding - and I don't want to get in to the argument about whether there is an award in force where there is - all the employees are covered by AWAs, but let us say for the moment that you are right about that, I don't think that takes you anywhere in regard to 285C because they don't use those words in 285C, interestingly they talk about the award applying.
PN94
MR MOIR: That is where I - - -
PN95
THE COMMISSIONER: Now, they clearly mean something different and they have chosen those words - they must have chosen those words for a purpose, that they are different in 285C than they are in 285B. The purpose may well be the one that you don't like.
PN96
MR MOIR: I will certainly keep having a stab at this, sir, for that sake.
PN97
THE COMMISSIONER: Yes.
PN98
MR MOIR: In terms of the respondent's position, we say that "in force" and "applies" have the same meaning and they are the characters of the definition of the dictionary. If we explore a little further the line that you are suggesting in these discussions, if 285C was meant to have reasonably open application, contrary to my arguments, the question will be raised: why does it not use the term "where any industrial instrument applies" - - -
PN99
THE COMMISSIONER: Because it can't.
PN100
MR MOIR: - - - or of that nature, that is the same - - -
PN101
THE COMMISSIONER: It can't. It can't because the Act can only cover - unless it relies on some other head of power, it is talking about - it is giving fuller effect to the prevention settlement of interstate industrial disputes.
PN102
MR MOIR: Which come under the award and certified agreement provisions.
PN103
THE COMMISSIONER: So therefore you need award - and you don't need certified agreement because there is an underpinning - - -
PN104
MR MOIR: That is right.
PN105
THE COMMISSIONER: - - - award and arguably you don't need AWA because there is an underpinning award also, or there may be - - -
PN106
MR MOIR: Yes.
PN107
THE COMMISSIONER: Well, there is not always, though, is there?
PN108
MR MOIR: No, the - - -
PN109
THE COMMISSIONER: Because in some cases there has to be an XF determination of the award.
PN110
MR MOIR: Which would be the most appropriate award, and we are not arguing in this case that the Meat Industry Federal Award is not the appropriate award - - -
PN111
THE COMMISSIONER: Yes.
PN112
MR MOIR: - - - for underpinning the AWAs, we are keeping right away from that line, but if you do explore that and if - - -
PN113
THE COMMISSIONER: But can I just ask, but for the AWAs would that award apply - - -
PN114
MR MOIR: That is right.
PN115
THE COMMISSIONER: - - - in the sense of being - the company being a respondent?
PN116
MR MOIR: The appropriate award.
PN117
THE COMMISSIONER: No, but in the sense of the company being a respondent to the award?
PN118
MR MOIR: In this one is that particular award, that is correct, yes.
PN119
THE COMMISSIONER: Yes. Yes, so it has application in that sense, yes.
PN120
MR MOIR: Yes, and we say there is application, as you have pointed out, for the underpinning purposes of the requirements of determining an AWA but we say it is not - it does not apply or have application in terms of how the work is actually being performed and the entitlements at that location. We are saying the AWA - - -
PN121
THE COMMISSIONER: Yes, yes. No, I understand that - - -
PN122
MR MOIR: - - - with that, yes.
PN123
THE COMMISSIONER: - - - I understand that part of the submission, yes.
PN124
MR MOIR: So I suppose just in winding that line of argument up, it is our submission that the requirement of 285C is that the award is the governing industrial instrument. If - well, your view that our arguments were substantive in that regard, then this matter should not go forward. However, I am instructed to advise that the respondent is not running this jurisdictional argument with the intent to stop the AMIEU or officers from attending the site, that is not the basis of it, but it is purely to set a platform and if we are correct in our submissions, to show the good faith of the company and the continued good faith in terms of admitting access and if we are right in our arguments, voluntary permitting access that there's no statutory right under 285C, and determine that the accommodation provided for the discussions that the union requires under 285C is the appropriate accommodation in terms of the nature of the business that is conducted at those premises. Now, we say that even aside from the jurisdictional arguments, the provisions or the accommodations and the attitude of the employer is appropriate.
PN125
THE COMMISSIONER: Well, I think we need to deal with the jurisdictional argument.
PN126
MR MOIR: Yes.
PN127
THE COMMISSIONER: You have made your point that you are not raising the jurisdictional argument for the purposes of excluding the AMIEU from the premises.
PN128
MR MOIR: That is right.
PN129
THE COMMISSIONER: It is for the purpose of defeating, I think - seeking to defeat their claim which is in their application - - -
PN130
MR MOIR: Yes.
PN131
THE COMMISSIONER: - - - that they be entitled to enter certain parts of the premises.
PN132
MR MOIR: Specific - - -
PN133
THE COMMISSIONER: Yes, and that if you were successful you would - the company would still be allowing the AMIEU to enter the premises under the same terms and conditions as it has entered in the past.
PN134
MR MOIR: Correct, sir.
PN135
THE COMMISSIONER: Have I got that right?
PN136
MR MOIR: Much more eloquently than I put across, sir. I think I have addressed the specific issues of what we say the jurisdictional arguments are and I think I will leave it there and not waste any further time and seek - - -
PN137
THE COMMISSIONER: Never a waste of time to raise a jurisdictional argument, Mr Moir.
PN138
MR MOIR: I know, sir, I mean not to keep labouring a point.
PN139
THE COMMISSIONER: If the Commission does not have the power, it does not have the power and you haven't wasted your time.
PN140
MR MOIR: On that basis I will take my leave of that subject, if the Commission pleases.
PN141
THE COMMISSIONER: I will hear from Mr Smith on the point. Yes, Mr Smith?
PN142
MR SMITH: Yes, thank you, Commissioner. This is actually going to look a little tardy on the union's part and we were actually unprepared for this particular argument. We were expecting a number of jurisdictional arguments but not exactly this one and we would like a brief adjournment to have a quick look at it. However, having said that - - -
PN143
THE COMMISSIONER: Well, no, you either have the adjournment and come back or - in fairness to you I think it is better we do.
PN144
MR SMITH: Yes, okay, that is fine.
PN145
THE COMMISSIONER: How long would you like?
PN146
MR SMITH: 20 minutes, Commissioner, is that all right?
PN147
THE COMMISSIONER: Yes, sure. Bear in mind that we do have some time constraints which I have alerted you to. Mr Moir, my associate has alerted Mr Smith to the fact that we have got some time constraints. It is the need to be back in Melbourne by 6 o'clock which means that we have to be out of here by 3 o'clock. So if you haven't had lunch, now is your time to get it.
PN148
MR MOIR: Thank you, sir.
SHORT ADJOURNMENT [12.25pm]
RESUMED [12.50pm]
PN149
THE COMMISSIONER: Yes, Mr Smith?
PN150
MR SMITH: Thank you for that adjournment, Commissioner, we just had a very brief look at the Act. Commissioner, our position is that in fact the work itself is still regulated by an award and we think that this is supported by the dispute prevention settlement procedures in part 6 which comes at section 88A. The objects of the Act or objects of the part of the Act under A:
PN151
The objects of this Part are to ensure that wages and conditions of employment are protected by a system of enforceable awards established and maintained by the Commissions.
PN152
And B:
PN153
Awards act as a safety net of fair minimum wages and conditions of employment.
PN154
At I:
PN155
The object also encourages the making of agreements between employers and employees at the workplace or enterprise level.
PN156
We say that would be contrary to the legislative requirements, Commissioner, if the making of an AWA dispensed with the safety net of the award and that would be the effect of this application if Mr Moir were successful. The other argument that we would put in relation to this is that in fact any Australian Workplace Agreement must still be assessed against the no disadvantage test and in order to do that there has to be an award which forms a safety net for that purpose and that includes both past and future, Commissioner, because of course the agreements do have a life and at some period of time they will be renegotiated and once again will have to pass a no disadvantage test.
PN157
It would seem to me that it would defeat the entire purpose if the current AWA concluded that there was no award that regulated the work because then there could be no no disadvantage test for future AWAs. So our position is that under section 88 the award does apply to the work and the work that is being performed at the Murray Bridge Abattoir is in fact work being carried on and in accordance with an award. I don't think that I need to go any further with that, Commissioner, because I really think that it is a very narrow definition that is being put on section 285C by the respondent. I rest my submissions there, Commissioner.
PN158
THE COMMISSIONER: Mr Smith, do you accept that there are no employees that are covered directly by the award?
PN159
MR SMITH: No, Commissioner, quite contrary.
PN160
THE COMMISSIONER: Direct, I mean. Well, do you - Mr Moir on behalf of the company says all of the employees have AWAs.
PN161
MR SMITH: We dispute that, Commissioner.
PN162
THE COMMISSIONER: That is disputed.
PN163
MR SMITH: That is disputed.
PN164
THE COMMISSIONER: You say that there are some that don't have AWAs?
PN165
MR SMITH: That is correct.
PN166
THE COMMISSIONER: Well, Mr Moir that now puts you to the evidence on the matter.
PN167
MR MOIR: Sir, if I may respond to that. To be specific in my comment, all production employees - - -
PN168
THE COMMISSIONER: I think he is putting you to the evidence of it.
PN169
MR MOIR: Sorry. No, sir, I haven't got any documentation or evidence on that apart from putting an appropriate officer on the stand to give verbal evidence.
PN170
THE COMMISSIONER: Well, I think that is what you will have to do.
PN171
MR MOIR: If I can just have a moment?
PN172
THE COMMISSIONER: Yes, Mr Moir.
PN173
MR MOIR: Sir, if I may, I seek leave to call Mr Brian Marshall as a witness.
PN174
PN175
MR MOIR: Mr Marshall, for the benefit of the Commission, can you please describe your title and your role with the employer?---My title is the Human Resource Manager to T & R Murray Bridge Abattoirs and my role is the overseeing of the human resources or human resources function on the plant.
PN176
For T & R Murray who was responsible for developing the employment documentation, whether it is letters of offer or AWAs?---Could you just repeat that question, please?
PN177
Who is responsible on behalf of T & R Murray to develop letters of offer for employment or AWAs or agreements?---The AWA was originally designed and printed - and submitted and we did use a company by the name of your company, EMO, in conjunction with our people.
PN178
Mr Marshall, the question is who is responsible at T & R Murray?---That is my responsibility to oversee that function.
PN179
Thank you. In respect to the employees in the production areas of T & R Murray, on what basis are they employed?---All employees, everyone that commences with T & R Murray Bridge are all working under an Australian - the Murray Bridge Abattoir Australian Workplace Agreement.
PN180
Are there any employees of T & R Murray at that premises that are not employed subject to to that agreement?---All meat process workers are working on that - T & R Murray Bridge employees are all working on that Australian Workplace Agreement.
PN181
No more questions, sir.
PN182
PN183
MR SMITH: Mr Marshall, do you in your job overseeing the AWAs, are you responsible for every AWA on the factory?---Of meat process workers T & R employees, yes, I am.
PN184
Do you personally ensure that all the AWAs go to the employment advocate?---They are all forwarded to an independent company that we have that then - or our agent would then forward them to the office of the employment advocate.
PN185
Have you personally seen all AWAs that go to this overseeing company?---All - every one, every document or every signatory page that people are signing that they will agree to work to the Australian Workplace Agreement I sign them all.
PN186
Every one of them?---Yes, I do.
PN187
Do you know an employee named Alan Smith?---Yes, I do.
PN188
Is he a current employee at the meatworks?---He certainly is.
PN189
Are you aware of Mr John Woods?---Yes.
PN190
Is he a current employee of the meatworks?---He certainly is.
PN191
Mrs Rita Burgemeister?---Yes, Mrs Burgemeister.
PN192
Are you aware that these three employees do not have current valid Australian Workplace Agreements?---I would dispute that.
PN193
Thank you. No further questions, Commissioner.
PN194
THE COMMISSIONER: Sir, when an employee starts with the company, when do they actually sign the AWA in the normal course?---At the point of commencement.
PN195
So when do you typically get a filing receipt from the office of the employment advocate?---We would get a filing receipt back within 4 weeks, approximately 4 weeks.
PN196
Now, are you aware of the provisions of section 170VJ of the Act?---Yes.
PN197
So when do you say the AWA operates?---Would be from the time that they are lodged with the OEA.
PN198
You say that that receipt is issued 4 weeks after they commence?---I might be, you know, within 3 to 4, you know, 4 or 5 days either side.
PN199
Yes, sure, I understand that. So there is a period of time when the AWA does not operate, between the time of commencement and between the - between the time they sign it and between the time - - - ?---Technically you would be right, sir, yes.
PN200
Well, is there any other sense in which I would be wrong?---No. There is - - -
PN201
That is the fact, isn't it?---Yes, that's a fact.
PN202
So during that period the award would operate, wouldn't it?---No, it doesn't. We work under the Australian Workplace Agreement.
PN203
But there is no Australian Workplace Agreement in force. You just agreed with me on that?---Mm.
PN204
So what would apply?---Well, every employee that commences - - -
PN205
I understand that. What would apply? I understand that they have signed one. Section 170VR of the Act you have just conceded, I believe, makes the AWA operative from the date of receipt of filing?---Yes, that's correct.
PN206
You have agreed that that is not the same day as the commencement of the employment?---Yes, no, that would be correct.
PN207
So what applies during the period between commencement of employment and the time at which you receive the receipt of filing?---All people, all employees who commence with us, have worked under what the Australian Workplace Agreement that has been, sir.
PN208
I understand they might be working but what is the legal effect? If you don't know, say so?---Well, you know, you certainly - I'll agree with you. I would certainly be pleased if you can inform me what that is, sir.
PN209
PN210
MR MOIR: Mr Marshall, at the time of offering employment to new employees, are you aware of a statutory time requirement before that prospective employee signs the agreement?---All employees are issued with an Australian Workplace Agreement and all employees do have it for a period of 5 days prior to commencing with our company.
PN211
Sir, I have no further questions of this witness.
PN212
PN213
THE COMMISSIONER: I think you have got a problem with your argument, haven't you? Do you concede that?
PN214
MR MOIR: Sir, in terms of the jurisdictional argument and an application of an award, in the absence of any other evidence to the contrary I will concede that there is an application for a short period of an award.
PN215
THE COMMISSIONER: And whenever a new employee comes along on the basis of that evidence it would apply.
PN216
MR MOIR: That is correct, sir, if the employment took place prior to the receiving of the filing receipt.
PN217
THE COMMISSIONER: The evidence is that it does.
PN218
MR MOIR: That is correct, sir. The other argument there, if we continue with the jurisdictional issue, is whether this employer is bound or respondent by the - - -
PN219
THE COMMISSIONER: I thought you conceded it was, sorry, I - - -
PN220
MR MOIR: I conceded in part that for the purposes of the no disadvantage test this award could be applied and I suppose if I just clarify that I may cease with this line.
PN221
THE COMMISSIONER: Certainly from the point of view of the no-disadvantage test it does not require but the real issue is whether the company is a respondent to the award and I did ask that and I thought you said, yes.
PN222
MR MOIR: No, sorry, I took your question to be more whether - yes - - -
PN223
THE COMMISSIONER: Well, then you should not take my question the way - you should listen to the words and answer the question. Is the company a respondent, a direct respondent, named respondent to the award or alternatively is it a member of the National Meat Association and thus bound by the award.
PN224
MR MOIR: Bound by the National Meat Association.
PN225
THE COMMISSIONER: Member of the National Meat Association?
PN226
MR MOIR: Member of and in that basis if they are a named respondent - - -
PN227
THE COMMISSIONER: Well, the National Meat Association is a - - -
PN228
MR MOIR: - - - Yes, and would conceded on that point that this employer would then be a respondent to that award.
PN229
THE COMMISSIONER: The award would apply during that period, I think, yes. Mr Smith, do you want to take it any further?
PN230
MR SMITH: No, Commissioner, I wish I had thought of that argument myself but the fact is that - - -
PN231
THE COMMISSIONER: I didn't think of the argument I was just following the - - -
PN232
MR SMITH: But the reason for the pointing of those particular questions to Mr Marshall is that I just have coming if it is necessary, a letter from the Office of the Employment Advocate that would bear out that there are in fact employees on the plant that do not have current valid AWA's, in which case their work must be regulated by the award.
PN233
THE COMMISSIONER: Well, that is a dispute that we don't need to go into. You can take that up directly and I think I am in the position where I don't have to rule on the jurisdictional objection because the jurisdictional objection was found on the argument that there was no award having any effective application. Whether that meets the requirement in 285C or not I don't have to finally determine because I think the factual situation is that the award has application at the very least to those people who are employed.
PN234
The company does not yet have a filing receipt from the Office of the Employment Advocate because the provisions of the Act in section 170VJ provide that an AWA for a new employee - and I'm only talking of new employees - starts up running on the later of the day after a filing receipt is issued for the AWA, or the day specified in the AWA as the starting date or the date the employment commences and it is the later of those and the evidence is that the filing receipt is not issued for the AWA for a period of 3 to 4 weeks after the commencement of employment. I think it follows therefore that the circumstances are that the award has application. I don't need to decide on the company's own argument. Mr Smith?
PN235
MR SMITH: Yes, thank you, Commissioner. Firstly, a little bit of background and then I do intend to call Mr Horsley, who is in Court here today to give some evidence in relation to this particular dispute. If it please the Commission, I will just continue. Commissioner, this dispute arises under Division 11A of part 9 of the Act, and it is in relation to section 285C, which as we have already observed deals with the power of entering into premises to hold discussions with employees by permit holders. What we are looking for, Commissioner, is an order, and in fact we will start by tendering a draft that we have prepared.
PN236
MR SMITH: Commissioner, I will just read it into the transcript. The orders sought are:
PN237
(1) Duly authorised officials, officers of the AMIEU who hold the relevant permits under the Workplace Relations Act and ...(reads)... non-working time during the normal business hours.
PN238
We say, Commissioner, that in respect to 285G that deals with disputes under right of entry that the Commission can make an order to settle a dispute about rights of entry. The section also says in section 285G, that the Commission may exercise its powers under part 6 of this Act, in the event of certain industrial disputes about the operation of this division but must not make an order for that purpose conferring powers that are additional to or consistent with powers exercisable under this division. We say that the order that we are seeking is not seeking to confer powers that are additional to or inconsistent with powers exercisable under this division and to that extent we will rely on a decision of Deputy President Duncan, this is in the matter of the CPSU and Telstra Corporation. It is contained in print S1028. At paragraph 27 which is on page 7 of this particular decision, it says this:
PN239
The order saw it as a tack as going beyond the terms of section 285C. The alleged flaw is that 285C is solved on location and the order prescribes a location thus exceeding the powers given the union by section 285C. ...(reads)... of which permit holders should conduct interviews.
PN240
Commissioner, it is the union's intention to conduct such interviews, to interview employees who are either members of the union or others who ought to be members of the union and to that end, in February this year, we attended the plant after giving the prescribed notice and on arriving at the plant we were stopped at the office and told that we were being allocated a room which is their training room. Now, this training room is some ways away from the canteen and past the office administration block which we told the company was unsuitable, but on that day we did attend in the training room.
PN241
We spoke to two people and that was the entire number of employees that we managed to speak to out of a work-force of some 6 or 700. On 1 March we again attended the plant and on arriving at the office, we were held up for some period in the office which was eating into the employees lunch time and then again shown to the training room. Again, we told the company that this venue was not suitable and this, we say, gives rise to the dispute between us.
PN242
The Act as we say, allows us to interview members and people eligible to be members, and what we say is that in the training room we are not able, for a variety of reasons, to speak to large numbers or small numbers of employees at the plant. In order to establish that, Commissioner, it is probably necessary for us to call some evidence and to that end we will call Mr Steven Horsley.
PN243
MR SMITH: Mr Horsley, are you a member of the union?---Yes, I am.
PN244
Have you appointed the union as your bargaining agent?---Yes, I have.
PN245
Can you tell us how long you have worked in meat works?---At that particular meat works, I've worked there for about 20-odd years. I started back in '77.
PN246
Was that under the current owner?---No.
PN247
Who was the owner of the meat works when you started?---When I started there working under Charles David.
PN248
What work do you do there, Mr Horsley?---According to T and R, I am a meat processor, but actually I slaughter beef.
PN249
How long have you done that occupation?---Nearly for the whole time I've been there.
PN250
What does your job entail?---Slaughtering beef. I'm actually - I do leg beef, legging beef is probably the job description.
PN251
Can you just give us very brief description of how that job works - what exactly you do?---Well, I've got to skin either first leg or second leg. You actually use a knife and you actually skin the hide off the leg.
PN252
How long do you have for lunch, Mr Horsley?---Half hour.
PN253
When you go to lunch, are there any specific requirements that you must do before you leave?---Yes, you - when we go to lunch, we actually start lunch the moment we finish the last body. We have got to walk from the legging table to the washing area. We have got to wash our equipment and make sure all the blood and all off it before we can actually go to lunch because it has got to be hung up at hygiene standards.
PN254
Do you have much equipment?---I've got knives, leggings, boots.
PN255
And how long does it take to clean those before you go to lunch?---Depending on your job for the day, but usually takes probably 5 minutes, may be a bit longer.
PN256
Is that time counted as part of your lunch hour or is it - - -?---No, part of the lunch hour.
PN257
Part of your lunch hour. How far is it from the section that you work to the canteen?---I'm no good on distance - quite a distance.
PN258
All right. Approximately how long to you think it would take you to walk down from the section that you work in to the canteen?---Probably a couple of minutes, 2 or 3 minutes.
PN259
And when you arrive in the canteen, is that when you have your lunch?---Well, it depends whether I'm buying it or actually took it to work with me, otherwise I got to line up at the canteen.
PN260
On finishing your lunch, are there any other requirements before you go back to work?---I like to go to the toilet.
PN261
Are there any further hygiene requirements before going back to work?---Well, when you go back up on to the slaughter floor, you do have to wash your hands, wash your boots, dip your knives into a sterilising bucket there and wash - hose them off.
PN262
How long would that take?---Put an apron and then go back up - be ready for the next body.
PN263
How long would that take you?---That could take probably 5, 6 minutes.
PN264
Is that part of your lunch hour?---That is part of our lunch hour, yes.
PN265
Okay, so out of a lunch hour of - or a lunch period I should say, of 30 minutes, there is - there was 5 or 6 minutes to clean your gear before going down - I'm just recanting here what he said, Commissioner - 2 or 3 minutes to walk to the canteen, depending on whether you eat your lunch or not there is a line-up in the canteen, you walk back to the slaughter floor and continue with further hygiene requirements?---Yes, that is right.
PN266
How long do you actually have to each the lunch?---Depends how quick you are. Could be 10 minutes, 15 probably at the most, depends whether you go to the toilet or what you do, but 15 minutes would probably be the most you would have to eat it.
PN267
Where are you - sorry, I've asked that - delete that question. Are you required to each your lunch in a particular place?---Yes, we are.
PN268
Where would that be?---In the lunch rooms.
PN269
Are you allowed to eat it anywhere else?---No.
PN270
Do you know where the training room is?---Yes, I do.
PN271
Are you aware of how far it is from the canteen?---Not exactly how far, it is quite a distance.
PN272
How long do you reckon it would take you to walk down there?---Probably 3 or 3 minutes.
PN273
In terms of communication, Mr Horsley, how would you know if the union was attending the work place?---How would I know? Sometimes the staff will let me know, the staff members, but otherwise I would be notified by you.
PN274
Thank you. How would other people that work with you be notified the union was going to be on site on a particular day?---Well, they wouldn't really unless it was word of mouth, unless you could get it around. Mainly through word of mouth would be the only way that would get the message.
PN275
Could we put notices up?---You could, but they wouldn't stay there very long.
PN276
Why is that?---We are not supposed to put notices up on the notice board - company notice boards. Not union notices anyway.
PN277
Can I just go back to the training room for a minute. How big is the training room?---It would be about the size of a 20 x 20 shed.
PN278
And would you consider that to be a suitable place for the union to have meetings?---No, you wouldn't get enough people in there.
PN279
As a member of the union, are you interested in how the union operates?---Yes.
PN280
Are you interested in the management of the union?---Yes.
PN281
Now, I understand that the Australian Workplace Agreement provides for a consultative committee on plant. Are you are part of the consultative committee?---Yes, I am.
PN282
What do you actually do on that consultative committee?---We discuss work issues, mainly work issues from a management's part and work issues from a worker's part.
PN283
And if a discussion from the joint consultative committee requires you to relate information back to workers - I'm sorry - I presume that is part of the function?---Yes, there is, yes.
PN284
If you are required to relate information back to the other workers, how would you do that?---Either word of mouth or meeting.
PN285
Have you had meetings with the workers previously?---I've had one.
PN286
And where was that held?---In the lunch room.
PN287
PN288
MR SMITH: Commissioner, what I have handed to the witness is a very very rough - and I emphasise - certainly not to scale - attempted drawing of the location of the factory, the canteen, the office block and the training room, to give some sort of relationship so the Commission can see the layout of the factory - the layout to that particular part of the premises.
PN289
Mr Horsley, would you say that was a reasonably indicative - reasonably indicative of the layout of that part of the factory?---Yes, pretty close, yes.
PN290
Now, the section that you work in, the slaughter pool, do you see that on that - - -?---No, no, no. That is further out.
PN291
That is further out?---Yes.
PN292
Can you indicate, just for the Commissioner's purposes, where the slaughter pool would be in relation to that map?---Be further on the left hand side from the canteen.
PN293
That would be further away from the training room?---Yes, a lot further away from the training room, yes.
PN294
On that particular drawing, the office is represented on the right hand side of the page by a fairly large block there with the training room a little ways behind it. There is an area which is the staff eating area outlined on that particular page. Can you just describe that area for us?---That area there is - I think - that area is pergolaed area - I don't know whether the staff eat there, but it is an outside eating area or something for the staff. I haven't actually been in there and seen what it actually is, what structure it is, but I assume that is there lunch or whatever.
PN295
Would it be possible to see - I'm sorry. Have you gone past that particular structure?---Yes, yes, yes.
PN296
And you have seen that particular area?---Yes.
PN297
Is it possible to see the staff from the outside?---Could we see the staff?
PN298
Yes?---No, we couldn't see them. There is some trees and that there, there is a few bushes and that. I mean, not that we would be looking anyway.
PN299
Can the staff - I'm sorry - I can't ask you that question. The area in the middle of the compound which we have marked as "First Aid" and "Clothing Store"?---Yes.
PN300
Directly above that there is another area - another group of buildings. Could you just tell us what that group of buildings is?---The AQIS building?
PN301
The AQIS building?---That is the meat inspector's amenities block and lunch room. The other one is an extra lunch room, mainly the women use that one.
PN302
Extra lunch room for who?---For the T & R workers - process workers.
PN303
For the employees?---Yes.
PN304
Are there any other canteen structures on the premises?---Only that one. The other one has got marked "Canteen" on it.
PN305
Yes, no further questions, Commissioner.
PN306
PN307
PN308
MR MOIR: Mr Horsley, in terms of that site map, does it appear - without being direct to scale - that that is a fair representation of the layout of the premises of T & R Murray at Murray Bridge?---Yes, pretty close.
PN309
And if we just confirm the training room is in the area located on that site map?---Yes.
PN310
And if we look at the other three areas highlighted, and at the centre of the complex at the front, would that be the appropriate location of lunch rooms and amenities?---Yes, definitely, yes.
PN311
Mr Horsley, you have mentioned that it would take about 2 to 3 minutes to get to the training room. Are you - having seen this layout, are you still consider that would be the time frame?---Roughly.
PN312
Would you - - -?---I mean, I wouldn't be running, so - - -
PN313
Would you agree that the distance from that central canteen to the training room would be in the order of 50 or 60 meters?---I've got no idea of distance. I would have said - - -
PN314
If you try and link it down to paces, you know, 70 standard paces, type thing?---Something around that, fair way.
PN315
But in terms of trying to get a time frame there, would it take you normally 2 to 3 minutes to take 70 steps?---Like I said, I've got no idea in paces, steps. I'm a meat worker, I don't - I've never paced myself to how long it will take me to get there. I mean, it is - I'm saying 2 to 3 minutes - it is right down the bottom end of the meat works. It is a fair way apart.
PN316
Still, you accept that it could be in the order of 50 or 60 meters?---If you say so, it could be.
PN317
I'm asking you, Mr Horsley?---I've got no idea - - -
PN318
Okay?--- - - - of distance.
PN319
In respect to where you work when you are not on break, would it be correct to say you are in the beef pressing area that is to the left of the main block?---Yes, I'm in the beef slaughter pool, yes.
PN320
Would you say that that is near the equivalent distant to the canteen as the training room is away?---No, actually the beef slaughter floor is closer to the canteen that what the training room is.
PN321
Could you have a stab at how many meters you would say it would be?---No. I couldn't have a stab at it.
PN322
In terms of the access path to the training room. You have mentioned there is some trees between that and the staff lunch area?---I said there is some bushes in there somewhere.
PN323
Some bushes. Have you noticed also some lattice and shade cloth structure?---I've never actually had a good look at it. I know it is there because I've seen it there when I'm walking back - I've never had a good look at it, but I know there is some bushes and that there.
PN324
Right. You couldn't see clearly into the lunch room or the admin area?---Into their area?
PN325
Yes?---You wouldn't have a clear view, but if you seen someone - if someone was walking around in there, you would know, you would see them.
PN326
In respect to your description of your work, you are dressing the legs or whatever, you are using sharp implements and knives etcetera. Is that correct?---That is right, yes.
PN327
And you are doing that at a fair pace for a period of time - working fairly intensely?---At a chain speed.
PN328
Yes. And that is fairly intensive. You have got to remain focussed and alert through that period?---Reasonably focussed, yes.
PN329
Do you find over a course of time that that could be draining or a bit stressful to you?---I've been doing it for a fair few years. I wouldn't say it was draining and stressful.
PN330
Would you say it is fairly intense work given the nature of the implements you are using?---It is fairly hard work.
PN331
Yes. When you take a lunch break after going through all the processes of cleaning down etcetera, do you find that you look forward to a bit of a break when you go to the lunch room?---We live to have something to eat and a sit down, yes.
PN332
Bit of a relaxation and a rest?---We don't seem to get it, but yes, we do, we find that we would like to have one, yes.
PN333
On that site map, the one shown as exhibit M1, which lunch area do you attend?---I use the main lunch area.
PN334
The one in the centre of the block of three?---The closest one, yes.
PN335
Thank you?---The other one is inedible - we are not allowed in that one.
PN336
That is the one to the left?---The little one on the left, yes.
PN337
And the other one to the rear - if we say that - to the front, depends which way you are looking this paper. It has got "Second Lunch Room". Who uses that?---The women use it. It was put there because of the other lunch room wasn't big enough - - -
PN338
Right?--- - - - and with the amount of employees that were there and then the women use it, but anyone can use it.
PN339
In effect, it is just a second edible - - -?---It is just a second - - -
PN340
- - - grade lunch room?---Edible grade.
PN341
What do you mean by edible and inedible?---Inedible is people - stock yards, skin sheds, that are not in processing, in the processing plant, like, the slaughter floors or the boning.
PN342
And processing you term as edible?---Is edible.
PN343
And that is because that product is for human consumption?---Human consumption, that is right.
PN344
Are you aware of any restrictions of moving between work areas of the edible and inedible groups?---You have to re-phrase that, I can't - - -
PN345
Okay, sorry- - -?---I didn't quite get it - understand what you are on about.
PN346
Are you permitted to move from an edible work area to an inedible work area?---Are we permitted to go there?
PN347
Yes?---Yes, but we've got to change our clothes if we come back and start working on the meat. You have got to change your whites or your boots or whatever.
PN348
They would be - you are out of protective clothing?---Yes.
PN349
Your boots, thoroughly wash your arms and hands etcetera?---You have got to wash yourself down.
PN350
What do you understand this purpose to be?---Hygiene - it is for hygiene purposes.
PN351
Hygiene for yourself or - - -?---To protect the product and yourself - well, protect your product mainly.
PN352
From what?---From dirt, rubbish that get on you.
PN353
In broader terms?---I mean, if you go out to the stock yards, you can't go back on the slaughter floor without washing those boots and you are not allowed out there with knives on you or anything like that. I mean, we work in a highly edible area where you wouldn't like to eat the meat if I had shit all over my knife.
PN354
So, if I put it in another term, that it is fairly regulated for hygiene purposes?---It is.
PN355
And would you agree that those regulations are to ensure that contamination does not occur to the edible product?---For sure, yes.
PN356
You agree that there is valid reason for that in that type of environment?---Yes.
PN357
Are you further aware that the company has some written policy in regard to that?---Yes, they have got hygiene policies.
PN358
Have you ever seen one of those?---Yes, it is - when we are inducted we've got all them.
PN359
Are they - or that particular policy you have referred to, the hygiene policy, is that re-introduced to employees on a regular basis?---Yes.
PN360
Is that re-introduced to employees on a regular basis?---Yes, it is, they actually put a note in the pay the other week.
PN361
How often since your employment with T. and R. Murray has that occurred?---Hygiene procedures?
PN362
Yes?---We got one - one this pay day, so that would be once, maybe twice.
PN363
Apart from your induction?---Yes.
PN364
Yes, and when did you begin employment with T. and R. Murray?---From day one.
PN365
Being?---Oh, whatever date they started.
PN366
Would it be August 1999?---Well, if that is what you say I started, yes.
PN367
Well - - - ?---I'm not good on dates, neither so - - -
PN368
No, I can say a number of things but I am not giving the evidence here so, all right, if I put it this way. If I said that the abattoir under T. and R. Murray started in August of 1999 - - - ?---Yes.
PN369
- - - would you agree that that is a fair date - - - ?---Well, yes, a fair date, yes.
PN370
And since your employment with T. and R. Murray, where have union meetings occurred when a union official has attended the site?---Both meetings have been in the training room.
PN371
There have been no meetings with unions in any of the lunch rooms to your knowledge?---No.
PN372
Would that have something to do with hygiene requirements, do you think?---No.
PN373
But, clearly, it has not been the custom or practice with this employer to have the union in the lunch room on that basis?
PN374
THE COMMISSIONER: Well, how can he know what basis the employer had for not having the union in the lunch room? I mean, if you want him to guess, I'm sure he will be happy to give you an answer but - - -
PN375
THE WITNESS: I could guess, but I'm not going to.
PN376
THE COMMISSIONER: No, no, I don't want you to guess. I don't want you to guess, but there is no way he can know what the employer's mind is.
PN377
MR MOIR: No, that is correct, sir, but can I re-word the question possibly?
PN378
THE COMMISSIONER: In an evidentiary way - yes, sure.
PN379
MR MOIR: No, sir, I think the other evidence will cover that off.
PN380
You made some comment, Mr Horsley, in regard to being advised by staff members that: the union is on-site. How many times did that occur?---Once.
PN381
On one of the attendances?---One of - the first attendance that the union came, the staff member actually advised me that they were on the plant.
PN382
How did that advice actually take place?---Through I think Brian Marshall, who rung the foreman up and the foreman came up and told me personally.
PN383
Where were you at the time?---On the slaughter floor.
PN384
Still at work so to speak - - - ?---I was still working, yes. I was still working - - -
PN385
- - - and not a lunch break?---Yes.
PN386
Yes. Have you been present in the lunch room when a staff member has come through advising of union attendance on-site?---They don't come through the lunch room advising the union - - -
PN387
No, have you been present?---No, I haven't been present, no.
PN388
In regards to your comment on notices being posted, why did you say that they are not allowed?---When I first started at T. and R - because I had been in the union for quite a number of years anyway - when I first started there I had some union notices and I put one up on the lunch room noticeboard, one in the slaughter floor - both slaughter floors, mutton and beef - and they were all ripped down - taken down. I fronted the manager at the time, why they were even pulled down? He said that: they were put in the wrong spot. And I says: I agreed, well, maybe they shouldn't have been on the slaughter floor. I said: what about the noticeboard? And he says: well, you're not allowed to put anything on the noticeboard unless you get our authority. I said to the manager, I says: well, what about all the people selling cars and washing machines and all that that are sitting on the noticeboard, did they get your authorisation for it? No, and they're going to be ripped down. I said: you just don't like the union notices up there, that is why you pulled it down. He wouldn't comment on that particular thing, but he still says: no, you have to get our authority to put it on there. So it come straight from management.
PN389
Okay. Have you ever sought authority to put a union notice up?---I didn't think we'd need one. People don't - - -
PN390
No, no, that is not the question, Mr Horsley. The question is: did you seek authority, or ever seek authority - - - ?---No, I didn't.
PN391
PN392
THE COMMISSIONER: Mr Horsley, have you seen this document, or a replication of this document before?---Don't know, haven't seen one yet.
PN393
MR MOIR: Sorry.
PN394
THE WITNESS: I can't recall seeing this particular document, no.
PN395
MR MOIR: Okay. You have made mention of the hygiene policy. Having said that, does that refresh your memory that this is - could be part of that - - - ?---That could have been in the notice last - on last pay period. I haven't read it quite yet. We only got paid Wednesday, it is only Thursday - what is it, Thursday today - - -
PN396
In - - - ?---It was yesterday we got it.
PN397
In terms of the previous hygiene policies, how big were those documents?---What do you mean, how big?
PN398
In page numbers, for instance?---Well, when we - we had paperwork thrown at us when we first got the job. When I first got inducted there. It's only by memory - the one - the other one could have only been small, it would have been one page on your - one or two pages.
PN399
Okay. If we go to 7.3, if you can read that first paragraph please?---
PN400
PN401
Employees must not move from -
PN402
You can read it to yourself if you like.
PN403
THE COMMISSIONER: Is there any dispute about this?
PN404
MR MOIR: Sorry?
PN405
THE COMMISSIONER: Is there any dispute about this?
PN406
THE WITNESS: I just want to know what this has got to do with - - -
PN407
THE COMMISSIONER: It is not your job to ask questions.
PN408
MR MOIR: No, sir, I don't think there is a - - -
PN409
THE COMMISSIONER: I mean, I am conscious of the time. You must also appreciate that I am a member of the panel that looks after the meat industry, I do have some understanding of the hygiene requirements.
PN410
MR MOIR: Yes.
PN411
THE COMMISSIONER: I am not saying I am an expert on it, but I can read this too and if it is an agreed document, what is the - - -
PN412
MR MOIR: Well, on the basis of my friend's - - -
PN413
MR SMITH: No contention with this, Commissioner.
PN414
MR MOIR: Sir, I will move on from that then. Sir, that would actually finish my questions with this witness, thank you.
PN415
THE COMMISSIONER: Well, it may not because I have got a couple of questions I will reserve your rights to ask any questions. When the union was required to go to the training room to hold meetings, was any instruction given to people that they had to follow the hygiene policy if they went up there and change and - - - ?---No, no, no.
PN416
So - - - ?---Hygiene room is part of the - the - the training room is actually part of the meatworks. We don't actually go outside the area.
PN417
Yes, what about - would it have been possible for - well, it must have been possible - was there any requirement for the inedible employees to make any change before they went to the training room?---Not that I had any knowledge to.
PN418
So the position would have been that you could have been edible employees and inedible employees in the training room at the same time?---Could have had, yes.
PN419
Sorry, do you have any questions?
PN420
MR MOIR: No, I am right sir, thanks.
PN421
PN422
MR SMITH: Have you got any idea how many employees would fit into the "inedible" category? It seems like a strange phrasing, does not it?
PN423
THE COMMISSIONER: We would hope we all were, wouldn't we?
PN424
THE WITNESS: How many? Well, I wouldn't have any idea actually because I don't know how many they employ in those particular areas.
PN425
MR SMITH: Who would fall under that category do you think?---Well, there is all the by-products, skin sheds, stock yards.
PN426
Do they have their lunch-time in the same period as you do?---I've got no idea.
PN427
Can I just ask you to have another look at the site plan that was tendered by the company, this is M1. So this one actually goes much further than the rough sketch that we put up. The area that is shaded and says, "Inedible Amenities", what is immediately in front of that?---In front of it is - - -
PN428
And I mean between the "Inedible Amenities" and the "Lamb Dressing Department"?---There's nothing there. There's a big old tree.
PN429
Is there anything else there?---Some seating.
PN430
Some seating?---Yes.
PN431
Is there any restriction on people who are not inedible going to that area?---No, we all pass that to go into the canteen, or into the locker rooms.
PN432
You gave evidence that Mr Marshall advised you, or caused to be advised, that the union was on-site on one occasion. Do you know if any other employees were told that the union was on-site on that occasion?---Not that I know of, no.
PN433
Just looking again at that site plan. Immediately to the left of the training room it says, "Car-park"?---Yes.
PN434
Can you tell me if that is sealed, or unsealed?---It's unsealed.
PN435
I only have one last question. If you went to the lunch room and found a union official in the lunch room, would that put you under any stress, or pressure?---No.
PN436
Thank you, no further questions.
PN437
PN438
THE COMMISSIONER: Yes, Mr Smith.
PN439
MR SMITH: Commissioner, we call no further evidence.
PN440
THE COMMISSIONER: Yes, Mr Moir.
PN441
MR MOIR: Sir, in terms of calling witnesses, if the Commission would provide me an opportunity I would like to re-call Mr Marshall.
PN442
THE COMMISSIONER: Yes, certainly.
PN443
PN444
PN445
MR MOIR: Mr Marshall, to your knowledge how many visits have there been to the site in question by the AMIEU?---We have had three visits. We had early - I think in approximately - and you must bear with me - I think in September or October in 1999 we had a Mr O'Leary request to come on to the plant. He came on to the plant and he was set up - we placed Mr O'Leary in the training room. I said to Mr O'Leary: is your members aware of - that you are coming? He indicated that they were not aware, and I said: well, I will certainly get the word out for people and I did speak to a number of people to alert them that Brian O'Leary was in the training room, if they wished to talk to them.
PN446
Where did you speak to these people?---I went through the lunch room and - you know - and I can certainly - remember a number of people - where I spoke to Bruce O'Bourne and Michael Hampel and Maurice Durecki and a number of people from the slaughter floor, but being some time ago, I am not quite clear on - can't quite recall all the people - - -
PN447
So - - - ?---- - - we then had Grant Smith in his role as - he requested to come on to the plant in February. He came - when he initially came on to the plant, he came to my office and we had a discussion with myself and James Raddis. We said to Graham: now, are the people aware that you are coming on to the plant? He said: no, they are not. I said: well, we will get information out to them. I rung the slaughter floor people, John Obert, who was the slaughter floor supervisor, to alert people that Graham was here if they wished to talk to him and that he was in the training room. I then walked across to the canteen and I'm fully aware that I spoke to a Bruce O'Bourne, a David Miers, the two people - for sure that Graham was in the training room. I did walk into the lunch room and said that - in my words I said: if you people are interested in talking to Graham Smith he is down in the training room. I then believe - - -
PN448
THE COMMISSIONER: How many people were present in the room at time?---I beg your pardon?
PN449
How many people were present in that lunch room at the time?---Oh, look, the beef boning room was in there. There would have been at least 20 to 25 people. I then - that is in the major lunch room. I then went up into the secondary lunch room. There would have been a number of - a number of ladies that was in there and I mentioned that to them as well.
PN450
Would they all have heard you?---Yes.
PN451
In both cases?---Yes.
PN452
And how many ladies would have been present in that lunch room?---You know, to hazard a guess, probably 10 to 15.
PN453
So tops we are talking about 40 out of 300, are we?---Well, no, they were - - -
PN454
- - - or 76 - 700?---Well, they were the people that were aware of that - - -
PN455
No, but the only people who were aware were the ones that you made aware - - - ?---That I told, yes.
PN456
- - - and the best you can say is that maybe 50 or 60 might have heard about it out of how many?---In your beef boning room there would be 100 people - - -
PN457
No, how many people are eligible - how many people on your staff are you aware are eligible to become members of the union?---640.
PN458
So it is less - - - ?---No, 600.
PN459
So less than 10 per cent?---Yes.
PN460
Had it drawn to their attention that the union was on the site?---That's correct.
PN461
Yes, okay.
PN462
MR MOIR: At the time of going through the lunch rooms to give this message, is that a standard time for all people to have their lunch?---The standard time that people have their lunch is between 11.30 to 1.30.
PN463
They don't have a 2-hour lunch obviously?---No, it's - it's spread - you know because - - -
PN464
Staggered?---It's staggered, yes.
PN465
During the course of a day shift, how many employees would be on-site?---Meat process workers on-site in the day shift - there would be 480.
PN466
At each of these staggered lunch breaks, there are the same number of employees?---It varies on the number of - what the Department is that you are working through. Now, with your beef slaughter floor you could have 40 - 40 people - you can come back into your mutton slaughter floor where you have got 80, but they would be staggering through because of the requirements under the Export Meat Orders to - you know, to run your product out. We run the chain out completely so as the last carcass goes past, those people knock off for lunch, and then will recommence when the first one gets to them after lunch again. So there would be people moving around continually. The availability of people - well, I suppose, you know if we have got 470, 480 people over a 2 hour spread, so you would - your peaks would be approximately 100 people at a time.
PN467
THE COMMISSIONER: It would be a bit more than that, wouldn't it? If there are 480 people and there is four half hour periods, the average is 120 and if it was less than 100 on occasions there would be a lot more than that on other occasions, mathematically?---Yes - - -
PN468
Is that right?---Yes, you are correct, yes.
PN469
MR MOIR: Would all employees attend the lunch rooms?
PN470
THE COMMISSIONER: Well, that was not the question.
PN471
MR MOIR: Sorry.
PN472
THE COMMISSIONER: The question was: how many people were taking lunch.
PN473
MR MOIR: Take their lunch, yes.
PN474
THE WITNESS: If the people are going to eat their lunch on the - on the plant, yes, they would. If they are going to go home for their lunch, which on occasions some of them do, they would attend the change rooms - the locker rooms and get changed and then go home.
PN475
MR MOIR: What is the company's position in relation to the union, or other representative officials attending at the lunch room for the purpose of talking to employees?---We have a policy that we believe that lunch-time is for people to have - to eat their meals in peace, to rest - - -
PN476
THE COMMISSIONER: What about the provisions of the Act, sir? Does your policy override that?---No, I am - - -
PN477
Are you aware of the provisions of the Act?---That people are not -
PN478
No, are you aware of the provisions of the Act - - - ?---- - - no, if you could explain - - -
PN479
- - - that the union person has a right to enter the premises?---Yes, sir - - -
PN480
There is no restriction - - - ?---I'm certainly aware that - - -
PN481
No, no, you are somehow putting the person in the training room. The Act does not say: is entitled to enter the premises at the specific location notified by the employees, does it?---No, but sir - - -
PN482
Is there anything in the Act that allows you to say that your policy is superior to the Act?---No, there is not, sir.
PN483
Good, okay, press on.
PN484
MR MOIR: Thank you.
PN485
Are you aware of anything in the Act that says: the location for a union to enter premises must be the lunch room?---No, it does not say that in the Act.
PN486
What is the reason that - - -
PN487
THE COMMISSIONER: Sorry, I have got to say to you that there is, in the Act, the union person is entitled to enter the premises in which work is being carried on for the purposes of holding discussions - - -
PN488
MR MOIR: I don't dispute that, sir.
PN489
THE COMMISSIONER: Now, it does not say: part of the premises, does it?
PN490
MR MOIR: No, sir, and if - - -
PN491
THE COMMISSIONER: So I don't know how - you know, there is nothing - the Act does not prohibit them going to the lunch room. It is the employer's decision that has prohibited them going to the lunch room.
PN492
MR MOIR: That is correct, I don't dispute that.
PN493
THE COMMISSIONER: Yes, all right, well, that wasn't the thrust of the question.
PN494
MR MOIR: Well, if I may just respond back to you on that, sir. The issue at hand here is: what is the appropriate location on a premises?
PN495
THE COMMISSIONER: Exactly.
PN496
MR MOIR: And - - -
PN497
THE COMMISSIONER: Exactly.
PN498
MR MOIR: Once we go into submissions later on away from this witness we will make submissions to that point.
PN499
THE COMMISSIONER: Yes, fine, I will be interested to hear it, but let's get the witness to give us the facts, rather than giving the opinion, come on. He is here to give us evidence about the facts and that is - - -
PN500
MR MOIR: What is the reason of the company for not permitting the union official to attend the kitchen - sorry, the lunch rooms?---Well, we don't allow - our policy on that plant is that we believe that - - -
PN501
THE COMMISSIONER: Well, look, I am not going to - no, I am not going to hear this. The question is: what is the reason, so we need to go behind the existence of the - - - ?---Because - because - - -
PN502
No, look, listen to me, sir?---Yes.
PN503
We need to go behind the existence of the policy because the policy simply says what it is and we understand that. The question was: what is the reason? Now, if you don't know, please say so?---The decision - - -
PN504
No, I am interested in the reason - - - ?---The reason is so that people can have their meals without - in peace.
PN505
Who took the decision?---The company has made that decision.
PN506
Who in the company took the decision?---The directors, the management and the people within that company.
PN507
In a meeting?---Yes.
PN508
When was this meeting held?---On - sir, I would have to go back and certainly address.
PN509
So what were the reasons why the people took that decision? You are saying so people could have their - how do you know that that was the thinking of the people, were you present at the meeting where this decision was taken?---Sir, I've - I've had a number of people and I - certainly, I don't have it - - -
PN510
No, no, I don't want to go into that. I said: were you present at the meeting at which the officers of the company took the decision to implement this policy?---No, I was - no, I was not.
PN511
So how can you say what the reason was?---Because of the communication with people from that company - from the - - -
PN512
And what was the nature of the communication?---That - - -
PN513
No, was it in writing, was it verbal?---Verbal.
PN514
Who was it that told you?---It was the managing director, CEO.
PN515
It was the managing director, the CEO.
PN516
Now, we are into hearsay now because we can't cross-examine the person who gave - who passed this on.
PN517
MR MOIR: That is right.
PN518
THE COMMISSIONER: This gentleman can't tell us the reason. All he can tell us what he was told the reason was and you will appreciate the weight I've got to give to that.
PN519
MR MOIR: Mr Marshall, in terms of those reasons, was that the sole reason that you understand the union could not attend the lunchroom?---In line with where we've had requests from banks, medical funds - - -
PN520
THE COMMISSIONER: We are not talking about a bank or a medical fund here. We are talking about a union that has got some rights under the Act, sir. Now, were - look, you don't know, do you, that really is the situation?---No, no, look, I'm basing it and I'm - - -
PN521
I don't want to know, I'm not interested?---Sir, I'm - - -
PN522
I'm not interested in what you think it was. I'm interested in what you were told was. Now what were you told the reason was?---I was told by the CEO of the company that employees are to be allowed to have their meals in peace.
PN523
Right, and that was the sole reason why the union was excluded?---That's correct.
PN524
MR MOIR: I just bogged on that one. I'm not without a direct question and I don't want do a leading question on this, sir.
PN525
THE COMMISSIONER: No, that is fine. I mean, the point I'm making is that we are talking about hearsay evidence.
PN526
MR MOIR: No, I appreciate that, sir.
PN527
THE COMMISSIONER: Because someone says this is the reason, well, there's the problem about ex post facto rationalisation.
PN528
MR MOIR: My line of questioning is not to talk about hearsay or for that, I mean - - -
PN529
THE COMMISSIONER: No, look, I'm not criticising you.
PN530
MR MOIR: No, no, but I'm saying that - - -
PN531
THE COMMISSIONER: The difficulty is that I'm sure that my experience tells me, that the union would be most interested to know the reason why they are excluded from the lunchroom but they would want to know that from the person who took the decision, not from the messenger.
PN532
MR MOIR: And whether there were any other regularity requirements.
PN533
THE COMMISSIONER: Absolutely, absolutely. No, no, whether there are any other reasons apart from that. I mean, you know, the person would be in the box, they would be subject their requirement to tell the truth, the whole truth and nothing but the truth and they would be subject to cross-examination.
PN534
MR MOIR: That is right, but in terms of - - -
PN535
THE COMMISSIONER: The fact that they are not here may permit me to draw an inference adverse to your case.
PN536
MR MOIR: I'm well aware of that one, sir. I will have one more go at this question and then I will move off and leave it alone - - -
PN537
THE COMMISSIONER: Yes, certainly.
PN538
MR MOIR: - - - but because of that, the possibility of an inference that I know there's something different, I need to have another slug at it.
PN539
Mr Marshall, are you aware of any restrictions on employees moving between the facilities?---Between the lunchrooms, yes.
PN540
What regulates those restrictions?---Export meat orders.
PN541
Sir, if I could just have a copy of exhibit M2 provided to the witness, please?
PN542
THE COMMISSIONER: M1 I think it was. No, M2, sorry.
PN543
MR MOIR: Do you recognise that document, Mr Marshall?---Yes, it's a standard operating procedure for personal hygiene.
PN544
Do you know the reason that that document came about?---To ensure that we do comply with the export meat orders and for all employees to have an understanding of why we, you know, put these procedures in place.
PN545
But this particular one is a company policy?---Yes.
PN546
So it has arisen out of - - -?---It has been based upon export meat order requirements.
PN547
Requirements. On that particular policy, a person could not move from one area to the other area without performing a certain range of cleaning functions?---Could not move from inedible working area to an edible working area and could not move from inedible dining room changing facilities to an edible - changing room locker room facilities.
PN548
If a union official attended the site, could that person move from one lunchroom to the other?---No, they could not.
PN549
THE COMMISSIONER: Yes, they could?---Unless they got changed.
PN550
MR MOIR: And complied with the policy?---Complied with the policy.
PN551
THE COMMISSIONER: No, look that can't be the can, can it, because you have got maintenance staff and the only requirement you have of maintenance staff is that when they go into an edible area, they have got to put on a dust jacket, a hairnet and a beard-net where appropriate and things like that?---That's right.
PN552
Now, why would the requirement of a union official be any different from the maintenance staff?---As I understand the question, we're talking employees, not union officials.
PN553
MR MOIR: No, the question there was union official.
PN554
THE COMMISSIONER: I think it is pretty important you start to listen to the question, sir. Now, why would the requirement of a union official be any different from an employee, such as maintenance staff?---No, no, look - and I apologise, I misunderstood the question.
PN555
Yes, very good. So there would be no reason why a union official couldn't go from the edible to the inedible lunchroom?---As long as they comply with the policies.
PN556
Yes.
PN557
MR MOIR: Thank you, that was one that I was looking for, sir. In respect to exhibit M1 being the site plan, are you familiar with the layout and positions with the office and the training rooms and meal amenities?---Yes, I am.
PN558
In respect to the office area on that site map, is there a clear view of the access path to the training room?---No, there's not. There has been alterations made to the main administration office and there has now been lattice work and shade-cloth that has been put that does obscura the view from the path where - that did use to be visible for people to see from inside the office.
PN559
Is there anything else there besides?---There's trees and bushes, sir. It just - immediately between the path and the office.
PN560
How long ago did these lattice areas be - - -?---Approximately early January.
PN561
Sir, I don't have any further questions.
PN562
PN563
MR SMITH: Yes, Mr Marshall, just referring back to M1. How many departments are there on the factory - in total?---Major departments, you would have five.
PN564
Five major departments. Where does Mr Abbott work?---John Abbott works in the lamb dressing floor, he is the supervisor in that position - in that area.
PN565
You gave evidence that you asked Mr Abbott to convey a message to workers in that area that the union was on site, did you ask him to go to other areas and advise them there as well?---I phoned from my office and I said to Mr Abbott: could you please notify the people Steven Horsley and Morris Durecki that Graham Smith is on the plant and to pass the word around amongst his - their colleagues.
PN566
So you didn't ask him to approach everyone and say that the union was on site, you simply asked him to speak to employees?---I spoke - asked him to speak to specific employees so that they could pass the message on.
PN567
Thank you. You heard Mr Horsley's evidence in relation to hygiene requirements, cleaning of equipment and general time to get to and from the canteen, would you agree that that was generally correct?---I would query the amount of time that it takes to clean the equipment. I would also query the amount of time that it takes to walk from the processing floor to the canteen.
PN568
Have you watched Mr Horsley clean his equipment?---Not Mr Horsley specifically, no.
PN569
Have you had cause to clean the equipment of your own?---Yes, I have in the past.
PN570
How long did that take you?---Approximately 3 minutes, 4 minutes.
PN571
What equipment did that involved?---It involved mesh safety gloves, pouches, knives and steels, which I might add the majority of the time is spent cleaning the mesh safety gloves.
PN572
Have you measured the distance between the training room and the canteen, and I'm referring to the main amenities canteen?---No, I haven't but it would be approximately 60 metres - 50 or 60 metres.
PN573
What makes you think that?---My opinion on distance.
PN574
Have you paced it out?---No, I haven't.
PN575
Has the union ever asked to enter any residential premises on the site?---Not that I'm aware of, no.
PN576
Now, you gave evidence that the path that leads down to the training room is visible from the office but that the - if I understand your evidence correctly - that the vision is obscured?---No, it was visible.
PN577
Sorry?---It was visible, it is not now.
PN578
Now, have you ever had any - sorry. Have you ever had any discussions with Mr Horsley?---Many discussions with Mr Horsley, in the role that we have been in the consultative committee.
PN579
Would any of those discussions have involved the union?---One particular discussion that I did have with Steven regarding the - well, it was not in direct reference to the union, no. It was on another issue.
PN580
So you have never had any discussions about the union with Steve?---Except to say that the union has been on the plant.
PN581
You have never said to Mr Horsley that this is a non-union shed?---No, I have not.
PN582
I just wonder, Mr Marshall, how the company come to the conclusion that the union was going to disturb employees meal-breaks?---The company - look, the company has made - and I suppose I've got to be - the way that it phrased - the directors of the company have made the decision and handed down the directive that there is to be no organisation to go in and disturb people in their meal-breaks because of the belief that it is a rest period. I might add that the company is quite happy to have the union on the plant and I think I've made that conversation to - that statement to you myself, Mr Smith.
PN583
But you have taken down union notices?---I have not taken down union notices.
PN584
Company officials have taken down union notices?---No company official that I'm aware of has ever taken a union notice down.
PN585
Would you object if union notices were to go up in the factory?---As long as they came through and we gave permission for them to go up, the same as any other organisation which wishes to put notices up on the board.
PN586
Mr Marshall, you have read the Workplace Relations Act in relation to entry of union officials on the plant, or the rights of union officials to enter the premises?---Yes.
PN587
You are aware that the union is entitled to hold discussions with workers?---That's correct.
PN588
You are aware that there's nothing in that part of the Act that restricts the union officials, where the union official is to hold those meetings - or hold those discussions I should say?---No, I don't know. I can't point that out to that. It doesn't say that they must be held in the lunchroom, it says that they can be held in lunch meal breaks.
PN589
Knowing that, you chose to direct the union officials to the training room which is some way away from where the employees have their meal-break?---When we say it is some way away from where they have their meal-break, it would be approximately 60 metres.
PN590
Well, you don't know that, you haven't measured it?---Well, I would bet my bottom dollar that it would be within 5 metres.
PN591
Have employees come to you and said that the union officials are disturbing them?
PN592
THE COMMISSIONER: It would be a bit hard, wouldn't it?
PN593
MR SMITH: It would indeed?---No, but when I've had a number of employees who have said to me - now, whether this comes back to this - I have had a number of people that when I've interviewed people, they said - made the comment with people, union people coming onto the plant and as I've said to them, the union people are certainly quite welcome to come onto the plant but they do not have access to the lunchrooms and they said: good.
PN594
How many people and who are they?---I would have to go back through my records of that, of those people who have said that, sir.
PN595
THE COMMISSIONER: Well, then I can't have much regard to that evidence. See, he has got to have a right to cross-examine those people, that is the point because you are saying one thing of what others have reputed to have said to you and he is entitled to be able to cross-examine those people if he wishes. If you don't know who they are, he can't summons them to appear?---May I just have - when we do, if I could,sir, if I could of my spiel of when I'm interviewing people when they come onto the plant. I always tell them that they have - it's a freedom of choice to be a member of a union or a non member of the union and I explain that to them.
PN596
That is not the issue here. The issue here is that you are claiming that people have told you that it is good that the union can't come into the lunchroom. That is the evidence that you gave. Now, Mr Smith is entitled to challenge that evidence. It is not what you said, it is what others said to you?---Well, I will have to go back through my records.
PN597
No, no, I understand that but in the absence of that, I've got to disregard the evidence. That is the point I make?---Okay. I accept that.
PN598
MR SMITH: There are two canteens, are there not?---That's correct.
PN599
Both of those are edible areas?---Two dining rooms, one canteen where people that - inedible employees can get access to the canteen.
PN600
What is to stop a union official from going from one canteen to the another or one lunchroom or one dining room to another, whichever way you want to look at it. Let us just assume that there are three, you have got two edible and one inedible?---The company directive that we believe that the employee should be able to eat their meals in peace.
PN601
That is the only - - -?---That's the only reason we do that.
PN602
Yes, I'm just mindful of the time, sir. I have no further questions.
PN603
THE COMMISSIONER: Any re-examination?
PN604
MR MOIR: No, sir.
PN605
PN606
THE COMMISSIONER: Yes, Mr Moir? Is that evidence?
PN607
MR MOIR: I've no more need to call for evidence.
PN608
THE COMMISSIONER: Yes, Mr Smith?
PN609
MR SMITH: Yes, Commissioner, it is the evidence given here that - - -
PN610
THE COMMISSIONER: Is there any value - I mean, I do have an obligation to attempt and conciliate these disputes and I appreciate that you have called the evidence in. Do you think it might be useful if we actually had a conference before we - - -
PN611
MR SMITH: Yes, I have actually alluded during this proceeding there may be a possibility to do that.
PN612
THE COMMISSIONER: Mr Moir, have you got a problem with that?
PN613
MR MOIR: No, sir, I'm willing to go into conference.
OFF THE RECORD
NO FURTHER PROCEEDINGS RECORDED [2.20pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXAMINATION-IN-CHIEF BY MR MOIR PN175
CROSS-EXAMINATION BY MR SMITH PN183
RE-EXAMINATION BY MR MOIR PN210
WITNESS WITHDREW PN213
EXHIBIT #S1 DRAFT ORDER PN236
STEVEN ROBERT HORSLEY, SWORN PN243
EXAMINATION-IN-CHIEF BY MR SMITH PN243
EXHIBIT #S2 SKETCH PN288
CROSS-EXAMINATION BY MR MOIR PN307
EXHIBIT #M1 SITE MAP PN308
EXHIBIT #M2 DOCUMENT PN392
RE-EXAMINATION BY MR SMITH PN422
WITNESS WITHDREW PN438
BRIAN MARSHALL , RECALLED PN444
EXAMINATION-IN-CHIEF BY MR MOIR PN445
CROSS-EXAMINATION BY MR SMITH PN563
WITNESS WITHDREW PN606
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