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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N VT03827
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
DEPUTY PRESIDENT IVES
C2002/1931
APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION
Application under section 127(2) of the Act
by National Union of Workers re industrial
action which is threatened, pending or
probable or being taken by Graincorp at the
company's Geelong Terminal
MELBOURNE
10.02 AM, TUESDAY, 7 MAY 2002
Continued from 29.4.02
PN72
THE DEPUTY PRESIDENT: Is there any changes to the appearances?
PN73
MR LYONS: No, your Honour.
PN74
THE DEPUTY PRESIDENT: Is it safe for me to assume that the matter didn't get settled, Mr Lyons, is it?
PN75
MR LYONS: No, your Honour. My instructions are that there was a meeting on Thursday of last week between the parties, where the issues between us were again canvassed. I understand that amounted to little more than people repeating previously adopted positions, so unfortunately it doesn't appear that the matter can be settled and we would seek that the matter be heard and determined, or our application be heard and determined.
PN76
THE DEPUTY PRESIDENT: Yes.
PN77
MR LYONS: If the Commission pleases, if I can start by indicating that there is the witness statement of Mr Thow that was tabled at the hearing last week. My friend has also served on the union yesterday some - a statement of Mr McConaghy, with some attachments and a statement of Mr Scully with an attachment. Does your Honour have those?
PN78
THE DEPUTY PRESIDENT: Yes, I only received those this morning and I have not had any chance at this stage to - it is a little tardy, Mr Johns, but - - - .
PN79
MR JOHNS: Commissioner, if I might apologise for that. We did make arrangements to have them served by e-mail on the union over the weekend following a discussion I had with Mr Lyons on Friday - - -
PN80
THE DEPUTY PRESIDENT: Yes.
PN81
MR JOHNS: - - - and then the attachments were sent through to him this morning - sorry, yesterday and I do apologise to the Commission for not making the arrangements to have it filed with you at that same time.
PN82
THE DEPUTY PRESIDENT: Yes, well, I mean it is - thanks Mr Johns. I don't think it is going to cause any major problem. It is simply at this stage I haven't had any opportunity to read through those statements. Yes, continue.
PN83
MR LYONS: So, your Honour, I understand that that will constitute the evidence that will be before you in this matter save and except for reference to the 2001 Enterprise Agreement, the 1998 Enterprise Agreement, which is the predecessor, which I will provide you with at an appropriate time. There are the three witnesses I propose, subject to your Honour's view that I provide a very brief opening in relation to our case and then we proceed to the witness evidence of both parties and then to close of submissions.
PN84
THE DEPUTY PRESIDENT: Yes.
PN85
MR LYONS: If the Commission pleases, in this matter the union seeks an order against actions by the employer in seeking to make redundant an uncertain number of employees. I say uncertain because the exact figure to which the employer seeks to reduce the NUW workforce to, from its current position of 39, is a little unclear because different figures appear in different documents of the company.
PN86
There is a clear situation where they seek to reduce it below a level of 39 which the union says is mandated by clause 2 of appendix B of the Enterprise Agreement. In relation to this application we would say five brief points. First of all, we say it is well accepted that the NUW as applicant union would have standing to bring this application. I note that each person who is covered by the terms of the Enterprise Agreement is a member of the National Union of Workers and the NUW itself is a party to the certified agreement.
PN87
We say that the actions of the employer in seeking to reduce the work force come within the definition of industrial action contained in section 4 of the Act. And we understand, as I referred to at the previous hearing that that is I think the - in this case, the prime jurisdictional hurdle which the union needs to overcome. In respect of the definition of industrial action contained in the Act, your Honour, we rely upon paragraph B of the definition which defines industrial action to mean:
PN88
A ban, limitation or restriction on the performance of work or an acceptance of or offering for work in accordance with the terms and conditions prescribed by relatively a certified agreement.
PN89
In particular, your Honour, we say that the actions of the employer constitute a restriction on the performance of work in the terms of the agreement in that it will require the work to be performed by a lesser number of employees than is prescribed by the terms of the certified agreement and also that it is a limitation or restriction on the acceptance or offering for work. So that is an either/or proposition. We also rely, your Honour, on the definition contained at paragraph C where industrial action is defined as:
PN90
A ban, limitation or restriction on the performance of work or an acceptance of offering for work that is adopted in connection with an industrial dispute.
PN91
The reference to restriction on performance of work and acceptance or offering is obviously the same as paragraph B, your Honour, but we also say we could demonstrate to you that the current circumstances between the parties are an industrial dispute about the manning levels to apply for the Geelong terminal. So, your Honour, on a need to rule basis we say we can demonstrate that the actions of the employer are industrial action. We say also that the industrial action that has occurred is likely to continue and in fact has only stopped on an interim basis because of the agreement reached before you last week, that pending the hearing of determination of this matter the employer would not seek to process any further redundancies beyond the two it has already process.
PN92
We say the evidence that will come out and this is contained in Mr McConaghy's statement, as well as the evidence of Mr Thow, is that without the intervention of the Commission, industrial action will continue. Your Honour, the industrial action itself, as I said, is in relation to a dispute and/or is in relation to work that is regulated by a certified agreement so that jurisdictional issue in relation to section 127 we say is well met. We also indicate that as a matter of discretion we would be able to convince you that an order ought issue. Your Honour, so that I don't risk repeating myself following the witness evidence, we may leave the matter there. That is the briefest of brief outlines. If I could call Antony Thow.
PN93
PN94
MR LYONS: Thank you, Mr Thow. You have made a statement in this matter that is before the Commission?---Yes, I have.
PN95
And you have that statement before you?---Yes, I do.
PN96
Are there any - is that statement a true and correct statement, Mr Thow?---It is, however, there is a couple of points I would like to amend.
PN97
Yes. I understand in paragraph 4 you refer, and 5, you refer to attachment 1 twice?---That is right. I think I refer to a document which outlines - well, which clarifies the incident that I refer to in paragraph 4, but that does not form part of the attached - the attachments in my statement.
PN98
So the reference to attachment 1 in paragraph 4 should not appear?---Correct.
PN99
Okay?---And in addition to that, the only other correction that I would like to make is that in one of the attachments, I think it is attachment 7, of my document.
PN100
Is it paragraph 21 of your statement?---Correct. I have tabled a document which I have said was the unions position. That was a position that was later amended after some discussion with the union delegate to the organiser and a document that is slightly different to that was in fact tabled to the company. This was the original draft document and I do have a copy of that with me at the moment.
PN101
Your Honour, we would seek to amend the statement so that the correct attachment 7 is provided.
PN102
THE DEPUTY PRESIDENT: Yes. Mr Thow I note you have some other materials with you in the witness stand. Would you mind letting me know what those materials are?---Yes, certainly. Certainly, your Honour. I have a copy of the Comprehensive Agreement 2001 - a full copy. That changed document is in attachment 7, and some hand written notes that I understand have been provided to - - -
**** ANTONY CHARLES THOW XN MR LYONS
PN103
So the notes are available to - - - ?---Yes, yes.
PN104
Yes, thanks.
PN105
MR LYONS: Mr Thow if I could ask you about those notes. What are those notes of?---These are the handwritten notes of our first agreement - sorry, our first meeting with the company on this issue.
PN106
And are they are notes you used to prepare your statement in relation to the discussions that occurred in February this year?---Yes, they are.
PN107
I cannot provide a copy of those because we may seek to have them marked.
PN108
THE DEPUTY PRESIDENT: I am sorry, Mr Lyons, I missed that. Are you seeking to tender those at the moment?
PN109
PN110
THE DEPUTY PRESIDENT: I don't think I have previously marked any documents. We didn't - the witness statement was tendered at the last hearing as I recall, was it?
PN111
MR LYONS: My understanding, your Honour, was that it was tabled, but I don't think it was marked, no.
**** ANTONY CHARLES THOW XN MR LYONS
PN112
THE DEPUTY PRESIDENT: I don't think it was tendered, no and I don't recall marking any exhibits at the last hearing. You have no - no. So the hand written notes will marked A1.
PN113
MR LYONS: Is it your Honour's practice to mark the witness statement?
PN114
THE DEPUTY PRESIDENT: Yes.
PN115
PN116
MR LYONS: Thank you, your Honour.
PN117
Mr Thow, are you able to explain to the Commission your involvement with Graincorp and specifically the Geelong terminal?---Yes, I can. I have been involved with the industrial interests of the members of the Graincorp site at Geelong for approximately five to six years. Since that - during that time I have been the organiser of the site and also the industrial officer assisting the various organisers who have represented that site.
PN118
And has your involvement included the negotiation of enterprise agreements?---Yes, it has. I was involved in the negotiations extensively of the 1998 agreement. I was the principal negotiator on behalf of the union during those negotiations. I also drafted that agreement with the assistance of the company with Mr Geoff Wise who was then the HR manager for Vic Grain, a predecessor to Graincorp and I have also been involved in the 2001 negotiations in assisting Mr Thompson who is the organiser currently at Geelong.
**** ANTONY CHARLES THOW XN MR LYONS
PN119
And that assistance to Mr Thompson, what did that involve?---Mr Thompson and I extensively discussed all of the different issues that came up as a result of the 2001 negotiations. Mr Thompson led those negotiations, he met the company on a regular basis and because I have had an ongoing involvement with the delegates and also the company, Mr Thompson on a regular basis would seek my assistance and guidance and advice in relation to all issues that came up. Due to my work commitments at the time it was not possible for me to be present at the negotiations but the State Secretary thought it was important that I kept up a consistent dialogue with Mr Thompson and with the delegates to assist both of them, or to assist all of them in the negotiations.
PN120
Mr Thow, there is a current issue between the parties in respect to manning of the Geelong terminal. Are you able to inform the Commission whether the issue of manning levels has a history at the Geelong terminal?---Yes, I am. The question of manning and the numbers of employees who are covered by the Enterprise Agreement is a very long history and in fact I would say out of all the industrial issues that the union has been involved in at the Geelong site, this has had the most focus. The issue of manning. When I first became involved, one of the key issues in the Enterprise Agreement was what numbers would be in the Enterprise Agreement and how we would get to those numbers. So, when we discussed, in the 1998 negotiations issues that issue alone would have taken up the most time. Even more than the question of wages and other improvements and conditions. So there has been a very strong history of discussing manning, how many numbers would be in an agreement, what position the parties would take would then be negotiated. There would be a lot of justification from both sides as to what appropriate manning levels would be and it is something that has been raised consistently at every Enterprise Agreement I have been involved in.
PN121
Mr Thow, was the issue of the manning levels raised by the employer or by the union and the employees?---At every instance the - sorry, I will start again. Every time there was an Enterprise Agreement the employer would table a number that they thought was appropriate for the Geelong site, as part of their log of claims. Like in most Enterprise Agreements, we would have a log of claims and then the company would also table one and that would be the basis for our discussions and during my involvement with Graincorp the company always put a number as part of their log of claims and that would generally start the discussion about what the manning numbers should be.
**** ANTONY CHARLES THOW XN MR LYONS
PN122
And over the period of your involvement with the Geelong terminal what has happened to the number of bulk grain workers employed at the terminal?---There has been a steady decline. Since my involvement I think when I first started at the site 49 was the number that I came across. At the conclusion of the 1998 agreement we reached agreement that the numbers would be reduced to 39 and there was a provision that numbers would go to 39 once that technological change regarding dust extraction was concluded so in my involvement I first arrived at 49. It was then negotiated down to 39 and then there has been this discussion as well. I am aware that prior to that I think the numbers at the Geelong facility were close to 50 and if we go back in industrial history I think they were once at a peak of around 150. So having spoken to Mr Charlie Donnelly who was the previous organiser when he handed the site to me he explained that there has been a steady decrease in the numbers since he has been involved and since then the unions have been very active there.
PN123
And has - on each occasion in your involvement, has the reduction in numbers been as the result of an agreement between the union and the employer?---Yes, that has been the case. It has been something that has always been negotiated between the parties at enterprise agreement time, when the agreement was expired or up for renewal, consistently we sat down and talked about those issues. There was one particular incident which I refer to in paragraph 4 of my statement, where the issue was raised by Mr David Farquhar who was the Geelong terminal manager at the time, where he wanted to reduce the numbers during the life of the agreement without consultation and what I thought was an expressed breach of the enterprise agreement that existed, and once I was informed of that by the delegates, we had a meeting with Mr Farquhar, the offer was withdrawn. Most are probably arguments that we raised with him at the time. So there has been a consistent history of it being raised in enterprise agreement negotiations, and sometimes outside of those negotiations.
PN124
THE DEPUTY PRESIDENT: I am sorry, Mr Lyons, can I just clarify something.
PN125
MR LYONS: Yes.
**** ANTONY CHARLES THOW XN MR LYONS
PN126
THE DEPUTY PRESIDENT: What you are saying, Mr Thow, then, is a number has been arrived at in negotiation - - - ?---Yes.
PN127
- - - with the union. And then subsequent to that agreement being put in place, the company has then, by whatever means, attrition or redundancy or whatever, has arrived at that number. That number has then stayed stable until such time as there has been another negotiation; is that correct?---That is correct.
PN128
There has been no reduction in numbers outside of that process?---Maybe it would probably assist if I explained what happened when I was involved in the '98 agreement. The number was 49 previously, and then it was negotiated down to 39 once that final tech change with dust extraction had been implemented. So once the agreement was certified, then volunteers were called for in accordance with the enterprise agreement, and we did get the required numbers of volunteers. They then left and there were 40 people left, once the agreement had been implemented, effectively.
PN129
Thank you.
PN130
MR LYONS: Can you explain - you just mentioned the number 40, Mr Thow. Was there a reason that the numbers were reduced to 40, not 39, which appears in the agreement?---Yes, there was. In the agreement, it said 39 once - if I could refer to the agreement, I think there are some precise words there.
PN131
This is in appendix B, your Honour, of the agreement?---At clause 2 in appendix B, in the second paragraph it says this:
PN132
Workforce numbers will be 39 full-time employees, where completion of dust extraction and other agreed capital works has occurred.
**** ANTONY CHARLES THOW XN MR LYONS
PN133
So in the terminal, there was a particular area where there was excessive dust, and so that there was extra manning required to ensure that the dust did not get out of control, the company said that they could not reduce - well, they would not reduce the numbers to 39 until that dust extraction was dealt with through capital works and some technological change. So I think it was just agreed capital works. And when we had the numbers reduced from 49, it was agreed at the time that those capital works had not been implemented, so the number of 40 would remain until those capital works were completed.
PN134
Mr Thow, can I take you to attachment 1 of your statement, which is entitled NUW and GEB - Grain Elevators Board, Vic Grain Enterprise Agreements '92 to '98. Are you able to explain to the Commission what that document is?---Yes. That was a document put together - well, it was at the insistence of Mr Geoff Byers, who was the HR Manager for Vic Grain, and the policy of the union at the 1998 negotiations was that we wanted what we called a comprehensive agreement, which was an enterprise agreement that included all conditions that existed on site, and that involved incorporating the award. It was a company based award, and all over-award conditions into one document. And also any relevant clause that existed from previous enterprise agreements. And so what Mr Byers did was go through all of the different over-award conditions and enterprise agreements that had existed from 1992 to 1998, and put them in this document. And from that basis, we then used what was relevant and placed that into the 1998 comprehensive agreement. So I had quite a number of discussions with Mr Byers along with the delegates about what proportions of the '96, '94, '92 agreement and other letters should then go into the comprehensive 1998 agreement. And that took quite a number of meetings before we could settle on exactly what should go into the '98 agreement. So this was effectively the company's working document from which we drafted the 1998 agreement.
PN135
And you will see there, Mr Thow, at clause 4, it refers to workforce numbers/manning, Geelong?---Yes.
PN136
And it says:
**** ANTONY CHARLES THOW XN MR LYONS
PN137
39 full-time employees as at 1.12.98
PN138
?---Yes.
PN139
Is it your understanding that that was the agreed manning level for the Geelong terminal?---Yes, it was. During the discussions when we talked about this issue, we agreed that 39 would be the number of full-time employees expressed in the document, and when it was negotiated it was quite clearly understood that in the event that numbers were to fall below the 39 level, that those employees would be replaced on an ongoing basis. And I think that is exactly what the words were when they were written into the '98 enterprise agreement.
PN140
Perhaps, your Honour, if I could show the witness the 1998 agreement. I do not table it at this point. Mr Thow, can you turn to appendix B of that agreement, and paragraph 2 there, manning levels?---Yes.
PN141
For the record, your Honour, I should note that the words in paragraph 2 of appendix B are identical between the '98 and 2001 agreement. There is no change even down to the punctuation. Are you able to tell the Commission what the union's understanding of what the company was undertaking to do as a result of that clause?---Yes, the understanding with the union was that the company, during the life of the agreement, would guarantee the numbers to be a minimum of 39. And when I say guarantee, our clear understanding was that if for any reason there was a termination, let us say an unfair dismissal, someone who was summarily dismissed or someone that decided to leave on their own accord, if that resulted in numbers falling below 39, then once that person left or if that person was summarily dismissed or the numbers for any reason were reduced, then the company would seek to employ another person, either from the casual pool or elsewhere, to put the numbers back up to 39. And that exact issue and how that would operate was discussed extensively, and it was clearly understood by all parties that that is exactly what it meant.
PN142
There has been some changes of ownership of this company during the last few years, Mr Thow?---Yes.
**** ANTONY CHARLES THOW XN MR LYONS
PN143
Is there anybody currently involved in management of the terminal who was present at the 1998 negotiations?---No, I am the only one left standing. I think there was Mr Geoff Byers who was involved extensively, and there would be a couple of site managers who have had involvement, I think, in Portland, who are still present with the company, but they weren't involved with the negotiations for appendix B.
PN144
Mr Thow, can I take you to attachment 3 of the statement; do you have that?---Yes, I do.
PN145
Are you able to explain to the Commission what this document is?---Yes, there is - Mr Byers and myself thought that once we agreed on matters during the negotiations, it would be important to take what the agreed matters were to the membership of the union and to seek an endorsement on an in principle basis, and we thought the best way of doing that would be to specifically outline all things agreed between the parties, and then to present that in a written form to the membership, for that to be explained to them and for them to then vote on that document. We knew that that would be something that we would have to expand upon and put in enterprise agreement form, but we used a four to five-page document on agreed matters, to put to members in an in principle way.
PN146
THE DEPUTY PRESIDENT: Yes. Mr Lyons, sorry to interrupt you, I do not have any numbers on my copy in terms of the attachment. I assume you are talking about the document that is headed: Geelong Terminal Operations Review. Is that the - - -
PN147
MR LYONS: No, your Honour.
PN148
THE DEPUTY PRESIDENT: That is okay, I have found it now.
PN149
MR LYONS: I had inserted a page marking the attachment in between the two rather than marking the originals, your Honour. It is the document on the Vic Grain Limited letterhead, entitled: Enterprise Bargaining Vic Grain and NUW.
**** ANTONY CHARLES THOW XN MR LYONS
PN150
THE DEPUTY PRESIDENT: Yes, I have that now, thank you.
PN151
MR LYONS: Thank you.
PN152
Mr Thow, can I take you to paragraph B of that attachment, where it says Workforce Planning?---Yes.
PN153
And perhaps if you can read for the benefit of the Commission that paragraph 1?---Yes. Paragraph B, Workforce Planning. It reads:
PN154
Workforce numbers to be 39 full-time employees.
PN155
And, as you can see, there is then a line through what is in brackets:
PN156
Including current casual positions.
PN157
This was a working document that we worked across, and when we would agree on our positions, we would just put a line through what we had agreed would not be put into the agreement. It then says:
PN158
Workforce numbers to be 39 full-time employees as of 1 December '98 with completion of dust extraction and other agreed work. This number of full-time employees is to be maintained for the life of the agreement, meaning that replacements will be sought when numbers fall below this level.
PN159
And then it says:
PN160
Expressions of interest in voluntary retrenchments will be sought by Vic Grain in late July or early August. Departures may occur prior to 30 November '98, if agreed by Vic Grain, NUW and the employee.
**** ANTONY CHARLES THOW XN MR LYONS
PN161
And I think effectively that describes what I just outlined previously about what was agreed and how the process would move forward once the agreement was completed. And it was that document that was used by yourself and Mr Byers to prepare a final memorandum of agreement for submission to members?---Yes, that is correct. Before we did that we actually tabled this document and put it to the membership and they voted on this document. It wasn't the July 7 version because I think there was further changes but I highlighted this version because that is where we discussed the workforce planning issue and those words that appear in workforce planning, paragraph 1, those exact words were part of a document that was presented to members.
[10.34am]
PN162
And that paragraph B represents the agreement on manning levels?---It does, yes.
PN163
Mr Thow, if I can take you to the 2001 agreement?---Yes.
PN164
You have told this Commission that your role was to provide, I think, advice and assistance to Mr Thompson?---Yes.
PN165
You are aware that the issue of manning levels was again a hot topic between the parties?---Yes, Mr Thompson advised me that the company wanted to press further reductions in the manning at the Geelong facility, yes.
PN166
If I can take you to attachment 4 of your statement. And to the third page of that attachment?---Yes.
PN167
See that paragraph 6?---Yes.
PN168
I am sorry, your Honour, first of all, Mr Thow, can you explain what this document is to the Commission?---Yes, this is a working document that was tabled by the company which outlined discussions regarding the log of claims, it is common to a lot of enterprise bargaining negotiations where minutes are recorded between the parties about what is discussed.
**** ANTONY CHARLES THOW XN MR LYONS
PN169
And at appendix - at clause 6 there, appendix B, do you see that, Mr Thow, on page 3?---Clause 6, yes, I do, I see that.
PN170
Yes and do you see the reference to appendix B there two-thirds of the way down the page?---Yes, I do.
PN171
And is that your understanding from Mr Thompson of what the company's initial position in respect of the manning issue was?---Yes. Mr Thompson explained to me that the company wanted to take away the guaranteed manning numbers. That was an aim that the company had in the enterprise bargaining negotiations and I have said that - I really effectively informed Mr Thompson about how serious that was for the members, what an important issue it was and I said that I thought the union should maintain the current guarantee on manning levels and that was something that the union should work hard at achieving and Mr Thompson agreed and said that the members were still very keen to have that guarantee in appendix B of the document.
PN172
Would it be accurate, Mr Thow, to characterise that paragraph I have taken you to as a claim by the employer to delete the manning levels?---Yes, I would describe it as exactly that, yes.
PN173
And is it your understanding from the discussions you had with Mr Thompson that there was - - -
PN174
THE DEPUTY PRESIDENT: Yes, I think you probably shouldn't lead quite as much if that - - -
**** ANTONY CHARLES THOW XN MR LYONS
PN175
MR LYONS: I have been very impatient. Perhaps I will start from another angle, your Honour. The - can you explain to the Commission your knowledge of the discussions that occurred around the manning levels for the 2001 agreement?---Well my understanding of it was that the company, in response to our log of claims, issued their effective response and this is summarised in this document and Mr Thompson said to me that it is part of the company's claim and what should and shouldn't be in the next enterprise agreement. The company wanted to reduce the guaranteed manning levels and that effectively meant that they wanted to be able to hire as many people as they wanted without the restriction on the number of 39 being present and that was my understanding, that was one of the key claims in the negotiations.
PN176
And the NUWs position in those negotiations, are you aware of what that was?---Yes, I was and I felt a part of what the position should have been and I advised Mr Thompson and the delegates that we should effectively hold the line; that we had worked very hard to get those guaranteed manning levels at 39. We wanted that maintained. It was - I advised the delegates and Mr Thompson that it was a clause that didn't often appear in enterprise agreements. In fact it was very rare in the current enterprise bargaining environment and that we should do everything in our power to maintain it because it provided an important job - provided important job security for our members during the life of the agreement and I thought that was something that was definitely worth keeping.
PN177
Mr Thow, are you able to inform the Commission of what the outcome of the 2001 round of negotiations was?---Yes. I think from our position we were quite nervous about the negotiations. We feared that with a new owner that it could become quite a difficult negotiating process. One where there might have to be industrial action if the company insisted upon wanting to reduce conditions at the facility. However, we were prepared for that and we understood that that could be the case, that there could be some very difficult negotiations and we had to work through it. So we thought about what would be the best strategy in moving forward and Mr Thompson and myself actually had a lengthy discussion in our offices about what a good strategy could be and I said to Mr Thompson, why don't we take this approach. Why don't we go to the company and say, you are a relatively new employer, the site works well, it does work very efficiently, why don't we simply rollover the agreement for a length of time, give you an
**** ANTONY CHARLES THOW XN MR LYONS
opportunity to see how the facility operates and works and for both of us to get to know each other a little bit better before we embark on, you know, a quite difficult negotiating path where we might want to change the agreement in some radical ways. And I thought that would be a good position for the union to take because I believe that the current agreement was a very good one and if we could keep all the conditions in there then that would be a good result. Mr Thompson thought that was a good idea. He then canvassed that idea with the delegates at the Geelong terminal who also thought it was good idea and we then formulated a log of claims that reflect that and effectively our position was, we would like a rollover, no change, there be a cost of living adjustment in the wages and a change in obviously the length of the agreement and that was the position that was eventually put to the company and it was the position that ultimately was accepted.
PN178
And - so after an initial failure of negotiations, the company - the union proposed a rollover?---That is correct. That was always our intention. It would have been something that we would have liked from the start but we did attempt to try and deal with a number of key issues. It was clear that there wasn't going to be agreement and there would probably, I think, in reality, have to be some sort of industrial action because the union definitely wasn't going to agree with the claims put forward by the company and we, as an alternative, offered the rollover, no conditions to change and, as I said, the company accepted that position.
PN179
Mr Thow, can I take you attachment 5 to your statement?---Yes.
PN180
Can you inform the Commission what that document is?---Yes. That is a letter to our State Secretary via Mr McConaghy who is the Employee Relations Manager and that effectively describes the company's acceptance of our rollover proposal.
PN181
If I can take you to the second page, Mr Thow?---Yes.
PN182
You see at the top it says "the paragraph following on this basis"?---Yes.
PN183
And Mr McConaghy proceeds to make an offer. Was that the offer that was accepted by the members as representing the new enterprise agreement?---Yes, it is.
**** ANTONY CHARLES THOW XN MR LYONS
PN184
And you will see there, in paragraph A, it says:
PN185
Rollover of the current agreement without any adjustments other than to rates of pay and duration.
PN186
?---Correct.
PN187
Is that, in fact, what came to form the 2001 enterprise agreement?---Yes, that is the case, so there was only a few amendments needed to the document. One was obviously the insertion of the new employee name being Graincorp Operations Limited, the dates need to be changed and the relevant wages had to be adjusted and the new increases put into the document.
PN188
And as a result of that agreement, the company resiled from its claims in respect of manning levels?---That is correct and all other claims as well.
PN189
And did the union also resile from any of its original claims?
PN190
THE DEPUTY PRESIDENT: Mr Lyons, I think Mr Johns is being tolerant. Can I please ask you not to lead the witness?
PN191
MR LYONS: When the negotiations to form the 2001 agreement started, Mr Thow?---Yes.
PN192
Were there a range of issues raised by both parties?---Yes, like other enterprise agreements that are declared on site, both parties had issues that were raised. We had one formally in a log of claims and as reflected in this letter by Mr McConaghy, the company agreed to a rollover which we proposed and we were quite happy with that and we thought that the company was prepared to rollover our conditions with a fair wage increase, that would be an adequate position for
**** ANTONY CHARLES THOW XN MR LYONS
us to accept. We didn't seek any additional claims above and beyond a rollover and a wage increase. We wanted to be, I think, reasonable and it has certainly been philosophy in enterprise bargaining that if you are happy with your current conditions and you get a wage increase without, sort of - have a log of claims which is as long as somebody's arm and it not realistic to achieve, then it is a good idea to accept a rollover with a fair wage increase and that is why I thought it would be a good strategy.
PN193
Are you aware of the issue of the inclusion of the no extra claims provision being debated between - or negotiated between the parties?---Which agreement is that?
PN194
In the 2001 agreement, Mr Thow?---Yes, I am aware of that clause, yes.
PN195
It is contained at clause 4 of the agreement?---Yes.
PN196
Are you aware that the company raised any issues with the inclusion of that agreement - of that clause?---My recollection is that at the time of the making of this agreement, that there was no objection raised about that clause.
PN197
Your Honour, if I could show the witness the statement of Mr McConaghy.
PN198
Mr Thow, that is a statement of Mr McConaghy that he has made in this matter. If I can take you to paragraph 6.4 of that statement on the fourth page - sorry, the third page?---Yes.
PN199
Where it says:
PN200
Throughout all stages of the negotiations of the 2001 enterprise agreement, we made it clear that if we didn't get our proposed amendments, then we would be coming back and revisiting these issues at a later stage.
**** ANTONY CHARLES THOW XN MR LYONS
PN201
?---Yes.
PN202
Are you aware of that position being put to the union in your knowledge?---No, I am not aware of that position being put. My understanding was that the rollover would be accepted by the company and that the conditions and wages outlines in the agreement would be accepted until the agreement expired and was up for renegotiation.
PN203
So in your knowledge, did the union understand that claims made during the enterprise agreement would continue to be agitated?---Well, it was our position, as it is in all enterprise agreements, that once we agreed to the agreement, that that was the end of making claims on the company, and I think for industrial parties, that is an important principle that we hold very strongly. I think it is worth noting that when we had the no extra claims clause, we always insist upon the words, "being by either party", so that both parties, the employer and the employee commit to honouring the agreement without making extra claims and that is why those words are clearly outlined in paragraph 4. So I think that was always clear that that would be our position and I am quite surprised by what is said in Mr McConaghy's statement at 6.4 on that basis.
PN204
Mr Thow, if I can take you to paragraph 14 of your statement?---Yes.
PN205
Where the subheading there is Restructuring Negotiations 2002. Are you able - - -?---What paragraph, sorry?
PN206
Paragraph 14. Are you able to explain to the Commission how your involvement in the negotiations that occurred this year commenced?---Yes. Mr Thompson came to me early in January of this year and said that there was a meeting being proposed at the Geelong site that he wanted me to come to. I can't recall exactly what he said, but he thought it would be an important meeting, that Mr McConaghy was being flown down from - was flying down from Sydney and that he thought it would be worthwhile me attending to hear what the company was saying, and I think he was apprehensive about what the news might be and
**** ANTONY CHARLES THOW XN MR LYONS
he thought that it would be appropriate, given my history, to come down and talk to Mr McConaghy. Mr McConaghy and I have had a good relationship over the last couple of years where we can talk about issues if at the local level they are not being sorted out, if they are not - if successful negotiations don't occur locally, Mr McConaghy has on occasions called me and vice-versa to try and sort things out. So that I think when Mr Thompson saw Mr McConaghy was going to come to the site, he thought it would be appropriate that I also attend, so I agreed to attend.
PN207
Mr Thow, you will see in paragraph 14, you say:
PN208
My notes appear as attachment 7 to this statement.
PN209
?---Yes.
PN210
And that is not actually the case?---Yes.
PN211
Is it true that your notes are what has been marked in this Commission as attachment A1?---That is correct.
PN212
And they are the notes which you used to prepare the following paragraphs of the statement?---That is correct.
PN213
Can you summarise for the Commission what the company said to the union at the meeting that occurred in early February?---Well, as I outlined in paragraph 15, the company effectively said that they wanted to have some voluntary redundancies. They went through what they saw as the competitive environment at the time and that they wanted to offer as a consequence some voluntary redundancies, although it was not expressed clearly in those terms. The first statement that Mr McConaghy made was that he was prepared to make available voluntary redundancies, and he also said in order for them to be bona fide, the company needs to have decided the positions were surplus. So I thought that was an unusual thing to say. Either there was a genuine need or there wasn't. He then
**** ANTONY CHARLES THOW XN MR LYONS
went on to say that he thought that there needed to be further reform regarding manning numbers and that that process was, in his view, going to be distasteful and something that was going to be unpleasant and therefore he was going to offer an opportunity for people to sort of volunteer to accept a redundancy so that they didn't have to be involved in difficult negotiations. And that was the position that he put to us at that meeting in February.
[10.54am]
PN214
Mr Thow, if I could take you to paragraph 7.5 of Mr McConaghy's statement?---Yes.
PN215
It is on page 4?---Yes.
PN216
And you see the second dot point a third of the way down the page. Mr McConaghy denies that he used the term "distasteful". On what basis do you allege that that is what he said?---Well, whenever I have discussions with companies I always make it a habit to take extensive notes and in this instance I did that as I normally do, and I wrote down exactly what Mr McConaghy said. I was very careful in listening to the words that he said. He has often said to me in the past that he is very careful with the words that he chooses and I am also very careful in writing exactly what he says on paper. And he did say that activities may be distasteful and that is exactly what I wrote in my notes and I can remember him saying it clearly. I also remember at the time thinking it was a very unusual thing to say and I wanted to effectively record that because I thought - like, I thought it was an unusual thing to say. So I would refute categorically the point made by Mr McConaghy at para 7.5 of his statement.
PN217
In paragraph 16 of your statement, you then say that the NUW representatives left the meeting?---Yes.
PN218
And you returned to put a position to Graincorp?---Yes.
**** ANTONY CHARLES THOW XN MR LYONS
PN219
What was the position that you put to Graincorp in respect to their proposal?---Well, I wanted to make the point quite clearly that I thought the position the company was taking regarding voluntary redundancies was outside the terms of the enterprise agreement, there were - there was an expressed clause on manning levels, that trying to reduce numbers at the Geelong terminal was, in my view, outside the terms of that clause in the agreement and that they shouldn't really be proposing what they were proposing. I was also, I must say, very frustrated in the position the company took. I said that if you wanted to negotiate an agreement and if you wanted to raise any issue, the union has always said they are ready to talk about that issue, and I respected it if a company takes a very hard position, just like I hope they respect it when we do the same.
PN220
Yes?---And I thought that what the company was doing was now trying to negotiate what should have been negotiated at the previous - at the previous enterprise bargaining discussions. And I expressed that frustration and I said "Why didn't you raise this previously? This is an appropriate discussion for enterprise bargaining, not for something in the middle of the agreement" and I was quite - I wasn't upset, but I was frustrated with what was being proposed. However, I thought it was important to keep talking with the company. I had observed that there had been a bit of a breakdown in our relationship. There had been some contracting out of work that I thought was not appropriate. I wanted to try and get the process back on track. I wanted the relationship to sort of start to build again as a consequence of that contracting out incident and I thought well, if you want to talk about something, why don't you tell us what you want to talk about and then we can think about what we do with it.
PN221
Mr Thow, given that you have expressed a view that this was an enterprise bargaining issue - - -?---Yes.
PN222
- - - why did the NUW agree to participate in the discussions?---Well, I think it is good industrial relations practice to listen and to listen to what the employer has to say in relation to their thoughts on the terminal. I thought it was important that we listened. We did that, of course, on a without prejudice basis and I expressed that to the company, that just because we agree to listen and talk through issues, doesn't mean we accept the position being put and we made that very clear. But I
**** ANTONY CHARLES THOW XN MR LYONS
think it is good industrial relations practice to talk about whatever is concerning the employer and to see if we can work through any issues. And of course, it may be an opportunity for the union to negotiate something that may favour the membership and I thought well, let us see if we can have some positive discussions and see where they lead. However, it was clearly done on a without prejudice basis and that was made clear to the company.
PN223
Mr Thow, if I can take you to paragraph 19 of your statement?---Yes.
PN224
And where, following a further break in the meeting, McConaghy returns. Can you explain to the Commission what Graincorp said in response to the NUW's initial reaction?---Yes. Well, as I have outlined in paragraph 19, and I thought it was an unusual statement, Mr McConaghy said that he felt that the company was only bound by the agreement for what it is worth. That was another case of the company, I think, not wanting to listen to the - or not wanting to accept the terms that were in the enterprise agreement. He did use those exact terms - the exact term "for what it is worth". I also thought that that was an unusual thing to say and I thought it was important that I write that down. In fact, that was the first thing he said when he put the company's response and I wrote it down because I thought it showed a reluctance to want to be bound by the terms of the agreement. The company then went on to describe the position that they wanted to take which was they wanted to negotiate with the company concerning work practises. They then talked about the competitive pressures they faced again and they then tried to use that to justify why they wanted volunteers to leave the terminal and accept redundancy.
PN225
Given that you put a direct - sorry, I will start that again, your Honour. I understand at paragraph 17 that you put a direct allegation that the employer's plan was in breach of the enterprise agreement?---Yes.
PN226
What was the response to that specific point?---They said - I think - sorry, I will start again. They said that they knew that they were bound by the agreement, but they reserved their position about what the agreement meant. And I was quite frustrated by that, because I thought it was quite clear what it means, the parties have always known what it means and I thought the company was positioning themselves in a way to get out of their commitments regarding the manning levels and that this was - this was the start of a position that they could use to justify getting out of their commitments in the enterprise agreement.
**** ANTONY CHARLES THOW XN MR LYONS
PN227
Following the first meeting you have dealt with there, there were a series of further meetings between the parties on the issue?---Yes, there were.
PN228
And at those meetings, what was the nature of the discussions that were held?---Well, there was a variety of things discussed. The company put forward a proposal where they wanted to see the manning levels at the Geelong terminal reduced to somewhere in the mid-twenties. They produced a position paper justifying that number. They also said that they would be prepared to let volunteers go and enhance the package, only after we insisted that that be the case. However, we also put forward an alternative position. We said that this is similar to an enterprise bargaining discussion and like any enterprise bargaining discussion we had claims that we wanted the company to address. Part of those claims were that we wanted an enhanced casual clause. We also wanted a commitment that work that had been contracted out returned to the Geelong terminal. We also said that moves by the company to contract out the laboratory not occur, and a further commitment given that the laboratory work would be done by bulk grain workers. We also sought an improvement in the redundancy agreement and an extension in the enterprise agreement and a wage increase to take into account the extension. So that position was put to the company and the company accepted in a very limited way, some of those positions.
PN229
Mr Thow, is the amended attachment 7 to your statement the NUW position in those negotiations?---Yes, that is correct. That was the position that was put. The company then did put something in writing to us in response to that. That was considered inadequate, but we did have a discussion regarding that and the response, as you are aware, is in attachment 8 of my document - my statement, with some handwritten notes about what I thought about the proposal. At that meeting, the company did vary their position slightly and we acknowledged that they had changed their position based upon this document and ultimately we put that to our membership, that that was rejected.
PN230
Mr Thow, can I take you back to Mr McConaghy's statement - - -?---Yes.
PN231
- - - and specifically to appendix - sorry, attachment F?---Yes.
**** ANTONY CHARLES THOW XN MR LYONS
PN232
Towards the - it is actually the last page of Mr McConaghy's statement.
PN233
MR JOHNS: Your Honour, if I can just interrupt for one moment.
PN234
THE DEPUTY PRESIDENT: Yes, Mr Johns.
PN235
MR JOHNS: It has come to my attention this morning that there is a page that is missing from that. There is a second page with three lines. If I might hand that up. And one for the witness as well.
PN236
MR LYONS: Mr Thow, do you have that?
PN237
THE DEPUTY PRESIDENT: Thanks, Mr Johns.
PN238
MR LYONS: Do you have that, Mr Thow?---Yes, I do.
PN239
This is the document entitled "Meeting between Graincorp and NUW" and you will see there that there is a table at the foot of the document?---Yes.
PN240
Is that table an accurate summary of the issues between the parties in early May?---I will just refresh my memory in relation to that. I don't think that is a complete summary of what was discussed. Certainly some of the things mentioned in the document before me were discussed, but it wasn't limited only to the things that are outlined here. I did raise all of the issues that are summarised in this document, so that part of the statement is true.
**** ANTONY CHARLES THOW XN MR LYONS
PN241
Yes. In this document, Mr Thow, the company records itself as having rejected several claims of the union. Is that document accurate in that respect?---Well, just going through them on a case by case basis. I said that I wanted an enhanced casual clause similar to the terms that I had tabled, and I had, in fact, specifically asked for a ratio of casual employees. Mr McConaghy has written here he is happy to agree. That is not quite the case. He said we could agree on a clause similar to the one that I proposed, but at no time did he table the words that he would be happy to accept and that was a cause of frustration because we wanted to see words before we would agree to them.
PN242
Yes?---Mr McConaghy did say that he didn't believe the bunker could come back to the Geelong facility. On the laboratory, a number of things were said about the laboratory. I think there really probably wasn't an answer or response there. Extension of the EBA at that time was not approved. That is correct. And there was no enhancement to the redundancy package. That is also correct.
PN243
If I can take you to paragraph 22 of your statement where you say negotiations broke down on 18 April 2002?---Para 22 did you say?
PN244
Yes. Can you explain to the Commission, the circumstances of those negotiations breaking down?---Yes. I recall the meeting breaking up after Mr Joe Di Leo got involved. The company had tabled their position and then they put forward a proposal that - and it was a staggered proposal that if more than 10 redundancies were forthcoming on a voluntary basis, then that redundancy agreement would be enhanced by, I think, seven per cent, but effectively the company position was that all of the items that I had listed in attachment 7, would not be forthcoming; that the company could not agree to the things that I had outlined in that attachment and therefore the only thing that the company was willing to put forward was an enhancement to the redundancy package. We said that we would be prepared to put that to our membership to see what they thought. That is what did occur and it was flatly rejected by our members.
**** ANTONY CHARLES THOW XN MR LYONS
PN245
Mr Thow, I will take you to paragraph 23 - - -?---Yes.
PN246
- - - where you refer to a phone conversation with Mr McConaghy. Can you explain to the Commission what McConaghy advised you the company was intending to do?---Well, the company was aware by that time that we had had a meeting on site and rejected the proposal that the company had put forward with Mr Di Leo being present. He told me that they would therefore go ahead with accepting anybody who was prepared to volunteer for redundancy. I said that that should not occur and that we should use the dispute settlement procedure in the agreement to try and see if we could use the assistance of the Commission to solve this matter. And then Mr McConaghy said that he didn't think it was a dispute, which I thought was a strange thing to say. Clearly, in my view, it was an industrial dispute that could be handled in accordance with the dispute settlement procedure. I think the parties had used the dispute settlement procedure up until that point and I said that it should continue and we should seek conciliation in the Commission. And Mr McConaghy said he didn't think that was appropriate and would go ahead and offer voluntary redundancies. And we ended the conversation.
PN247
Did Mr McConaghy give any explanation as to why he thought the matter wasn't an industrial dispute?---I did press him on the point, but there was no explanation that I accepted. I am just trying to recall the precise words. No, he said that in his view that there was no industrial dispute and therefore the enterprise agreement where it outlined the dispute settlement procedure would not be appropriate.
PN248
All right. Following that decision of the company, the union then instituted these proceedings. Is that correct?---That is correct.
PN249
And why has the union decided to make application under section 127?
PN250
MR JOHNS: Well, Commission - sorry, your Honour. How is that relevant to whether or not there is an industrial dispute or whether or not it satisfies the jurisdictional requirements of 127?
**** ANTONY CHARLES THOW XN MR LYONS
PN251
THE DEPUTY PRESIDENT: Mr Lyons?
PN252
MR LYONS: Your Honour, I am aware that this is a situation where there may arguably be alternative remedies. I was seeking the witness's view as the officer responsible from the union as to - so the Commission can be enlightened about why the union has taken the course of action it has in the prosecution of the dispute.
PN253
THE DEPUTY PRESIDENT: Yes. I will allow the - sorry, Mr Johns.
PN254
MR JOHNS: Your Honour, I still don't understand how that is relevant to the questions that are before this Commission in deciding whether or not the jurisdictional elements of 127 are met.
PN255
MR LYONS: Well, it may go to discretion, your Honour. I don't know what my friend will have to say about alternative remedies, but there are some authorities which - in which employers respondent to applications such as this have sought to go against the making of an order on the basis of alternative remedy and so we simply seek to cover that point. If my friend doesn't take that point, I need take the matter no further.
PN256
THE DEPUTY PRESIDENT: Yes. Look, I will allow the question, Mr Lyons. I will reserve on the relevance of it at this stage.
PN257
MR LYONS: Indeed, your Honour.
PN258
Mr Thow, following that discussion with Mr McConaghy, the union initiated these proceedings, is that correct?---That is correct.
**** ANTONY CHARLES THOW XN MR LYONS
PN259
And why did the union choose to institute these proceedings?---Well, I had an extensive discussion with Mr Donnelly, the State Secretary, and we looked at all of the different options that were before us. To me as the officer responsible, I thought it was important that the company did not continue to seek voluntary redundancies. I thought that that was a position that was outside the terms of the agreement. It could be deemed industrial action and we should seek effectively interlocutory relief to stop that process. I thought the best way forward would be to do that in a 127 application. We are a union that believes that we should go to the Commission first before we seek intervention of the Court. We do that for a number of different reasons. One of it is we believe in the institution and the other point is that it is a - it is a forum where I think that these arguments have been run and we think that this is a case where we could get interlocutory relief. It is also as a cost effective means of trying to solve it and certainly as far as length of time is concerned, it was something that fitted into a short time-frame. We could be in front of the Commission quickly and for all those reasons we proceeded with the application.
PN260
Mr Thow, can you explain to the Commission what occurred at Graincorp following the breakdown of negotiations on the 18th?---My understanding of what has occurred, having had a discussion with the delegates and the members directly, was that the company had approached individuals and said there is a package available if people would like to volunteer. They had approached two individuals and those individuals had accepted the package that was on offer and had effectively left the premises - well, I don't know whether it was immediately, but very shortly after they were offered the voluntary redundancies. It was communicated to me that everybody could seek voluntary redundancies and that had been communicated to all members, but only two individuals had elected to accept.
PN261
Can I take you to attachment 9 of your statement, Mr Thow?---Yes.
PN262
Do you have that?---Yes, I do.
**** ANTONY CHARLES THOW XN MR LYONS
PN263
Can you explain to the Commission what attachment 9 is?---Yes, Mr Clark, one of our delegates, informed us that the company had written to each member saying that voluntary redundancies were available and we asked to see a copy of that letter and that is what is the attachment. He faxed that to me and obviously it is self-explanatory and shows the position that the company adopted.
PN264
Mr Thow, are you aware of - specifically of what level Graincorp seeks to reduce the work-force to at this point?---Yes. In the discussions that I have had with the parties or with the company, the company have expressed the desire to reduce the numbers to 25 - to mid-twenties. There was an original proposal put forward by Mr Scully which - who is the terminal manager, that his preferred number would be 20. And there has been sort of revised positions put forward by the company between the numbers of 20 and up towards 29. So it is varied, but I think they have always said to us in a very strong way that their preferred number is 20.
PN265
Yes. So doing the maths, Mr Thow, your understanding is that the employer still seeks somewhere between eight and 18 redundancies?---Yes, I think - well, I am not sure of the precise numbers by my understanding is that there are currently 37 or 36 employees, and that depending on whether you take the number 20 or 25, trying to reduce to that level.
PN266
Are you able to inform the Commission what you understand will occur if there is no intervention in the form of an order by this Commission?---Yes, I believe that the company's position will be that - - -
PN267
MR JOHNS: Well, your Honour, the witness isn't entitled to give evidence about - in his belief of what the company's position is. These are matters that my friend can put to the company. They are here to give evidence and the witness's speculation about these matters is not probative and is of no assistance to the Commission, in my submission.
PN268
THE DEPUTY PRESIDENT: Yes. Mr Lyons?
**** ANTONY CHARLES THOW XN MR LYONS
PN269
MR LYONS: Your Honour, I merely seek to put to the witness what he understands from the negotiations is the company's position.
PN270
THE DEPUTY PRESIDENT: I think it is speculative at this stage, Mr Lyons, so I don't intend to allow that.
[11.20am]
PN271
MR LYONS: Now, Mr Thow, if I can take you to paragraph 26 of your statement?---Yes.
PN272
Can you explain to the Commission what you mean by that paragraph?---Well, I think the fact that the company does not want to honour the terms of the agreement by ensuring that the numbers of 39 are implemented, shows that they are in clear breach of the enterprise agreement, as outlined in appendix B. They don't want to have any discussions to ensure that the agreement is complied with. Mr McConaghy has even failed to acknowledge that it is a dispute between the parties. And therefore doesn't even want to take the matter to the Commission to try and assist. And therefore we believe that we are left with no choice but to seek the relief of the Commission to stop these actions.
PN273
If the Commission pleases.
PN274
PN275
MR JOHNS: Thank you, your Honour.
PN276
Mr Thow, you finished then by saying that the union had no choice but to bring these proceedings. It is true that the union could have initiated LW proceedings under the dispute resolution clause, couldn't they?---Yes, although we didn't think it was worth the while if Mr McConaghy didn't even want to recognise that it was a dispute.
**** ANTONY CHARLES THOW XXN MR JOHNS
PN277
But you don't need the permission of the employer to bring a dispute into this Commission under the dispute resolution clause, do you?---That is true.
PN278
And you could have elected to do that under clause 12.15 of the agreement. Is that right?---We could have, yes.
PN279
Now, you have given some evidence about the history of the manning level and the history of the negotiations of the certified agreement, and what you say is the roll over of that certified agreement. Now, Mr Thow, you are quite outraged by the conduct of the company, aren't you?---I wouldn't say outraged. That wouldn't be the way I would describe it.
PN280
How would you describe it?---I am annoyed.
PN281
You are annoyed by the company's conduct?---Mm.
PN282
And in your opinion they have breached the certified agreement?---I think it is not only my opinion. I think it is the opinion of all of the members on the site. And I think that is the most important point. I think the members clearly want an agreement that is valid, that does what it says it does.
PN283
Yes. Well, I am only interested in - - -?---And it is not just my opinion - - -
PN284
Mr Thow?---It is theirs.
PN285
Mr Thow, I asked you for evidence about your opinion?---Sure.
PN286
And that is all that I am interested in?---Sure.
**** ANTONY CHARLES THOW XXN MR JOHNS
PN287
Mr Lyons will have an opportunity to re-examine you about these matters that I ask you questions about?---Mm.
PN288
And so you are annoyed and it is your opinion that the certified agreement has been breached?---Sure.
PN289
And it is your opinion that in no circumstances can the numbers be reduced below 39?---I believe that is the case.
PN290
And it is your position that the union would never agree to a reduction below 39?---Not unless it was part of the enterprise bargaining negotiations in the new agreement.
PN291
Right. And now you gave some evidence about how the manning level clauses had operated?---Mm.
PN292
And it is your evidence that there were particular manning levels at one stage?---Mm.
PN293
I think you will have to say yes rather than - - -?---Which stage are you talking about.
PN294
Well, at any stage prior to the settling upon numbers in the certified agreements. The terminal has a particular manning level?---Sorry, I am not sure what you are referring to. Are you referring to a particular stage in different enterprise bargaining agreements or - - -
PN295
Well, for any of the enterprise bargaining - the previous two?---Which one in particular?
**** ANTONY CHARLES THOW XXN MR JOHNS
PN296
Well, either of them?---Okay.
PN297
The situation is that at the terminal there is a particular manning level, isn't there?---Yes, there is.
PN298
Yes. And the company has expressed a desire to reduce that?---Yes.
PN299
And the union has agreed to a particular level in the certified agreement?---That is correct.
PN300
And it is your evidence that only through natural attrition, that the numbers then drop from whatever the manning level is prior to the agreement, down to the level in the agreement?---No, not natural attrition. I don't think that is right.
PN301
Through some process - all right, I will withdraw that - through some process. Through the life of the agreement, the numbers are reduced from what they are to what they are agreed to in the agreement?---My understanding of the agreement is that it says 39 and that should be the number that is employed at the terminal.
PN302
Yes. But we are just - I am asking questions about the process by which we got to the 39?---Okay.
PN303
And prior to the agreement on the 39 - let us focus on that then?---Okay. Good.
PN304
There was a manning level in excess of that?---It was 49, correct.
PN305
Yes. And there was an agreement on 39?---Correct.
**** ANTONY CHARLES THOW XXN MR JOHNS
PN306
And it is your evidence that over the period of time there has been a reduction from the 49 to the 39?---Well, I think I outlined exactly what did occur.
PN307
Yes. Well, it is your - - -?---And - - -
PN308
Mr Thow?--- - - - that is my evidence.
PN309
Yes?---And that is outlined in the document, which - I think - is attachment 3, which explains clearly what exactly happened.
PN310
And it is your evidence that - - -?---And that being the case was that there was 49. The new number was going to be 39 once the dust extraction was completed. And there could be volunteers who could come forward and accept a voluntary package to get to that number.
PN311
And the company got to 39?---It got to 40.
PN312
Yes. And it ultimately got to 39?---It has got below 39, is my understanding.
PN313
Yes. And, in fact, it has been below 39 for some time, hasn't it?---I am not sure of the exact time it has been.
PN314
All right. Well, I put it to you that it has been at below 39 since the end of last year. Do you dispute that?---I don't know the precise amount of time, so I take your word for it.
PN315
And at no time in the previous five months have the NUW agitated for a breach of a certified agreement claim, have they?---They have at a local level, I know that.
**** ANTONY CHARLES THOW XXN MR JOHNS
PN316
There has been no action commenced by the NUW to assert that the company is in breach of the certified agreement?---Well, no, I disagree with that. I know that the delegates actively are talking to local management about ensuring that 39 is maintained. And that is something that they have done on many, many, many occasions.
PN317
Mr Thow, there is no legal action been initiated by the NUW, is there?---If you are talking about legal action, no, there hasn't been any legal action.
PN318
And in all the period of time that the numbers have been below 39, the NUW have not initiated any legal action in respect of that?---No, we have thought that we should try and negotiate a position at a local level, and we hoped that the company would listen to the concerns of the delegates and the members and the officials. We have not resorted to legal action yet, but obviously that is something that we could do, but we hope that our discussion would achieve those numbers being maintained.
PN319
Now, in answer to a question from Mr Lyons, you said that you categorically refute the evidence of Mr McConaghy in paragraph 7.5 of his witness statement. Do you have that there?---Yes, I will just turn to it. Yes.
PN320
And were you talking particularly about the second dot point there?---I was referring to the fact that he moves away from the term "distasteful".
PN321
Well, he says he can't recall it?---Right. He moves away, he can't recall, yes.
PN322
So, is it your evidence you categorically refute that he can't recall it?---No, my evidence is he said it.
PN323
Right?---Yes.
**** ANTONY CHARLES THOW XXN MR JOHNS
PN324
You accept that he made reference to the roller coaster ride?---I remember him referring to that, yes.
PN325
And if you have a look at document A1. Do you have that there?---Being my notes?
PN326
Yes?---Yes.
PN327
About half way down the page - - -?---Which page were you referring to?
PN328
The first page?---Yes.
PN329
Can you see the reference to the roller coaster ride there?---I can.
PN330
What does that sentence say?---My writing is not as it should be.
PN331
That is why I am asking?---And it is sort of my own form of shorthand. That first point either says "good port" or "good point". I am not quite sure, but then there is an arrow. It says:
PN332
...will be in roller coaster ride.
PN333
So, the arrow suggests some notion that it will lead to a roller coaster ride or something like that, does it?---Well, it is a bit hard for me to really ascertain, but I did note that that is what was said at the time, that, you know, the process will be a roller coaster ride.
PN334
Just staying with that document for a moment?---Sure.
**** ANTONY CHARLES THOW XXN MR JOHNS
PN335
About a quarter of the way down there is a reference there to:
PN336
...now facing sustained competition.
PN337
Do you see that?---I do.
PN338
And the:
PN339
...need to look at all operations.
PN340
Is that right?---That is correct.
PN341
And then about three quarters of the way down:
PN342
Lost one million tonne to Melbourne.
PN343
?---Yes.
PN344
What did you understand that to mean?---That is to the Grain Co facility at Appleton Dock F, because Graincorp don't have a facility in Melbourne.
PN345
Right?---So, he is referring to the amount of tonnage lost to their competitor.
PN346
And are these the comments of Mr McConaghy, are they?---That is correct.
PN347
And you understood from that, that the reason why the company wanted to reduce the numbers is because of these competitive pressures that they are facing from, in particular, the facility at Melbourne?---He didn't make that link directly. He just spoke about their competitive pressures.
**** ANTONY CHARLES THOW XXN MR JOHNS
PN348
Well, you understood that to be the basis for them pressing for a reduced number, didn't you?---I understood the competitive environment in which Graincorp operate.
PN349
Yes. And you understood that they were the reasons being put forward by the company?---No, he didn't make that clear. He was placing some context, I think.
PN350
Yes. And he did that to provide you with some reasons for their need to reduce numbers, didn't he?---Well, I can't recall if he made that direct link.
PN351
Well, you made that direct link, didn't you, Mr Thow?---I haven't said that.
PN352
Well, I am putting to you that you did?---No, I wouldn't agree.
PN353
Now, the union was willing to negotiate about this issue, weren't you?---We are willing to negotiate, yes, as in all instances.
PN354
And you are willing to negotiate about the manning levels?---Yes, we are willing to enter discussions.
PN355
Yes. Now, attachment 7, the new one?---Yes.
PN356
Can you have a look at that?---Yes.
PN357
Now, these - if I understand it correctly - are essentially the terms sheet being put forward by the NUW. Is that right?---Just so that the Commission is clear. We said that if there was to be any change, there needed to be a variation to the enterprise agreement. And that would obviously have to be put forward to all members covered by the agreement. And therefore I wanted to put down terms that could be incorporated into a new agreement, and so I prepared this document on that basis.
**** ANTONY CHARLES THOW XXN MR JOHNS
PN358
Yes. Is it right to assume that had the company agreed to all of these matters, the union would have agreed to a minimum number of 31 employees?---Well, the union would have agreed to put it to its members. And the members would ultimately decide about whether it was adequate or not.
PN359
But you, as the responsible officer, had you got these concessions from the company, you would have been prepared to recommend to the members that they accept the reduction to 31?---Well, I never said that I would recommend it. I would be duty bound to put it to them.
PN360
Well, that is not an answer to my question, Mr Thow?---Well, if you could repeat the question.
PN361
The question was, if you had obtained these concessions from the company, you would have been prepared to recommend the reduction to 31 to the members, wouldn't you?---No, I don't agree with that. I would have put it to the members. It depends about - whether I give a recommendation or not is completely dependent upon my opinion at the time. And I would have been prepared to put this to the members. Whether I attach a recommendation to it or not, I certainly never thought at any time I would do that.
PN362
And before drafting this document, did you seek the input of the members?---I had discussions with the members. However - - -
PN363
Who did you have discussions with?---With the delegates, Mr Gary Ridgeway, Wayne and Doug Clark, who are present in the Court room today.
PN364
Did you have discussions with any other of the members?---No, they had been in discussions with the membership, but it would be fair to say that these were my ideas and thoughts about how we may be able to solve it, rather than the members or the delegates.
**** ANTONY CHARLES THOW XXN MR JOHNS
PN365
But the delegates were happy to proceed with you putting this document to the company?---Yes, they said that we should put this to the company to see what reaction they had.
PN366
Yes. So, it is fair to say that the delegates were content with this as a proposal from the NUW?---Yes, that is correct.
PN367
And is it also right to assume that had the company agreed to the concessions you request here, that the delegates would have been agreeable to this being a variation to the certified agreement?---I think they would have taken a similar view to myself, which is, they would have recommended - not recommended - but put it to the membership for their consideration.
PN368
Did you have some confidence that you would be able to carry this recommendation with the members?---No, I knew it would be very difficult, so I probably - I didn't have confidence, no. That wouldn't be a way I would describe it.
PN369
But if you got these concessions, you were willing to put it to the members?---Yes.
PN370
And now just going through the document. The first point is you wanted an extension for 12 months. Is that right?---Correct.
PN371
Yes. And a four per cent wage rise. Is that right?---That is what it says, yes.
PN372
Okay. And what was the company's response to that?---Well, they were willing to provide a pay rise in terms outlined in that document.
PN373
Yes. And they were agreeable to the 12 months?---I think it was withdrawn eventually, but at some point in the - yes they were. It was later withdrawn, but at a particular point, they did agree to that.
**** ANTONY CHARLES THOW XXN MR JOHNS
PN374
And the redundancy at point 2 there, you wanted employees to be paid out their unused sick leave. Is that right?---I think it talks about pay out of sick leave. And there is - currently there is a cap that is in existence in the redundancy package, and we asked that all service be recognised rather than the cap. So, there is not only the sick leave, there is that other change.
PN375
And is it right to say that the company wasn't in agreement with that?---No, they didn't agree to that at any point.
PN376
And the next item 3, you wanted a set ratio of effective full time employees to casuals. Is that right?---Yes.
PN377
And the company wouldn't agree to that. Is that right?---Well, the company didn't agree to the terms proposed there. Mr McConaghy said during the discussions that he would entertain a clause regarding casual employment, although he was never forthcoming in providing one. He said that he could agree to a different casual clause that currently existed in the enterprise agreement, but as I said, he never put that forward.
PN378
Yes. Now, we come to the crucial issue of the manning issues?---Yes.
PN379
How did you and the delegates arrive at the number of 31?---Well, we said that it would all be dependent upon volunteers. And that was the first point we made. That the agreement shall be dependent on the number of volunteers who come forward during the redundancy process. Now, with an enhanced package we thought that there might be some people who would volunteer. It may be 31.
PN380
Had you made some inquiries about that?---I wouldn't say that we had made inquiries. I think that was more of a guesstimate or an estimate.
PN381
Well, how did you guess that you might get enough to reduce the numbers to 31?---I think we had a discussion and - - -
**** ANTONY CHARLES THOW XXN MR JOHNS
PN382
Who had a discussion?---Well, we had a discussion as - - -
PN383
Who is "we"?---We as in the delegates - Mr Peter Thompson - the delegates, myself, we had a discussion.
PN384
And what did they tell you?---We thought that if the - - -
PN385
No, sorry, not what we thought - - -?---Well - - -
PN386
- - - what did they tell you?---We as a collective, we work as a collective, so that is why I am speaking in those terms.
PN387
Well, to the best that you can, I would rather you tell the Commission what you were told by the delegates and what you said in response? What discussions occurred - - -?---Yes.
PN388
- - - about being able to get the numbers down to 31?---I recall the delegates saying that if the package was enhanced, there may be a possibility that there be 31.
PN389
Who said that?---I think all the delegates said that.
PN390
And did you make some inquiries about why they thought that?---No, I didn't.
PN391
Is it right to say then that the delegates were content with a working number of 31?---You will have to ask them.
PN392
Well, did they tell you that?---They wanted 39. That is what they wanted. They were quite adamant to me.
**** ANTONY CHARLES THOW XXN MR JOHNS
PN393
Well, Mr Thow, you have just given evidence that you had discussions with the delegates - - -?---Yes.
PN394
- - - and they said that if the package was enhanced they could get it to 31?---But it would be safe to say that their preferred position would be that there be 39. I put forward this document as an attempt to compromise. And they were willing to entertain it and discuss it and for me to put forward, but I think it is fair to say that they would have preferred the 39 to be maintained.
PN395
But they could have lived with the 31?---Well, that was something that they were prepared to put to the members.
PN396
Yes. And prepared to put to the company?---Yes. They were prepared to agree to put this to the company, as I outlined.
PN397
As a quid pro quo essentially for these other things that are being asked for - these other claims that are being made?---Well, I think we always said that if the company was wanting to re-negotiate the agreement, it would have to - it couldn't occur in a piecemeal fashion - it had to be in a substantive form.
PN398
So, it is right to say that the NUW was willing to deal on the numbers of manning, if it was allowed to bring to the table other issues as well?---I think the way I described it is that we didn't want to stop discussions. That on a without prejudice basis, we would entertain what the company - we would look at what the company was proposing, but that would be on a without prejudice basis. And I saw it as a negotiation similar to an enterprise bargaining discussion. And therefore we put forward issues too.
PN399
Now, the company came back with a response to that on 16 April. Is that right?---Yes.
**** ANTONY CHARLES THOW XXN MR JOHNS
PN400
And that is your attachment 8?---That is correct.
PN401
And at the end of that meeting the position was put by the company, that if the union could get six or seven volunteers, those volunteers would receive 3 per cent on top of their package. Is that right?---I recall that being put.
PN402
And if the union were able to get 10 volunteers, those people would get an additional 4 per cent on top of their package. Is that right?---They put that to us, yes.
PN403
Essentially - I think the math works out to be a little less than seven - but essentially 4 per cent on 3 per cent?---Sure.
PN404
Yes?---That was put by the company.
PN405
And I put it to you that you were in agreement with that suggestion?---No, we weren't in agreement with that. We said we would put it to the membership. What we wanted was what I had outlined in my attachment 7, but - - -
PN406
But you took that proposal to the members, didn't you?---Yes, because we felt duty bound to put that to the members.
PN407
Did you recommend it to the members?---No.
PN408
You just simply put it?---I didn't conduct the meeting. Mr Thompson conducted the meeting.
PN409
Well, are you aware whether the union recommended it?---My understanding is that the proposal was put to the members, it wasn't recommended.
**** ANTONY CHARLES THOW XXN MR JOHNS
PN410
Right?---And during the negotiations - or during those discussions - there was never any commitment given by the union, nor was there an undertaking sought by the company, that there be any sort of recommendation. So, the issue of recommendation was not ever raised.
PN411
Does your union not make recommendations?---Well, it does on occasions, usually during enterprise bargaining discussions.
PN412
And you characterised this as enterprise bargaining negotiations, didn't you?---I said it was similar to.
PN413
Yes?---Because it is certainly not enterprise bargaining discussions.
PN414
No. And so it would have been appropriate at some stage for you, as the union, to put a recommendation?---No, because it was a very unique situation, and one that I think the members needed to make a judgment upon without recommendations being attached. It is their agreement.
PN415
Had you have got all the concessions that you requested in attachment 7, would you have been willing to put to the members - - -
PN416
MR LYONS: Your Honour, my friend is inviting the witness to speak out on what might have happened if the company had put a different position to the one that it did put.
PN417
MR JOHNS: No, that is not true.
PN418
MR LYONS: Well - - -
**** ANTONY CHARLES THOW XXN MR JOHNS
PN419
THE DEPUTY PRESIDENT: I might allow Mr Johns to finish his question, and then see if you want to continue with your objection, Mr Lyons.
PN420
MR JOHNS: My question is, had the company agreed to all the concessions that you requested in attachment 7 - - -?---Mm.
PN421
- - - would the union have put 39 members to it - 39 as a manning level - to it's members? Would you have been content to do that?---Sorry, I don't understand that question, because that is what the agreement currently says.
PN422
Yes. So, you would have been content to put it surely?---I am not sure what you are asking. You will have to repeat the question.
PN423
Well, if the company had made all of the concessions - - -?---Right.
PN424
- - - that you requested in attachment 7 - - -?---Yes.
PN425
- - - with the manning level at 39 - - -?---Right.
PN426
- - - would you have put that to your members?---Well, we would have put it to them, yes.
PN427
And you would have been content to recommend that to the members?---Well, I would have to wait for the time, but I would have put it to the members. Because this was a particularly strong issue, because they felt very strong about the issues, I was very reluctant to guide them. It is up to them to decide. And I would only attach a recommendation really in enterprise bargaining discussions. Because this was outside of enterprise bargaining negotiations, I would have put a proposal to them and let them decide, because it is their agreement, they own it. And from my point of view, I think it is important that they decide how they want to move forward on these issues.
**** ANTONY CHARLES THOW XXN MR JOHNS
PN428
But, Mr Thow, you don't do that in a vacuum, do you?---How do you mean?
PN429
Well, you take - you receive information from the delegates, don't you?---Of course.
PN430
Yes. They receive information from the members?---Yes.
PN431
And you would not put to the company, as a position of the NUW, something that you didn't think you could sell to the members?---My view on recommendations, which is - I think - what you are asking about. Is that correct?
PN432
No. I didn't use the word "recommendation"?---Yes, okay. You would have to re-phrase the question then. I am not sure what you mean.
PN433
Well, you take - you receive - information about these matters from the delegates, don't you?---I do.
PN434
And they receive information about these matters from the members?---Yes, although it is difficult at times, because you are not always having mass meetings to get their position.
PN435
And they - and the delegates communicate to you the feeling of the members on the floor?---Yes, to the best of their ability.
PN436
And in that context, you were prepared to put to the company an opening position of 31, weren't you?---No, I don't think it came about through that sequence of events. It was more something that I discussed with them, and said, "Well, how would this figure go?" It was not something that they gave me and then I formed my opinion on that. It was something that I put together.
**** ANTONY CHARLES THOW XXN MR JOHNS
PN437
Yes. And there was no opposition from the delegates to you going to the company with 31?---I think - I wouldn't say that there was no opposition. I think quite clearly they were very keen to see 39. I was saying, I suppose, that we should discuss these things in an open way and see what comes of it. But there was some opposition to that position being put.
PN438
But ultimately they allowed it to go forward?---They were happy for us to have discussions.
PN439
Around the figure of 31?---They allowed - I think there view was, "Let us have discussions and let us see what comes of it." Because ultimately we are not the decision makers. The decision makers will be our membership. So, I think that was the basis upon which they said, "Well, let us see what comes of this."
[11.49am]
PN440
And they were confident that the work could be performed with 31?---I don't know if that is the case, you would have to ask them.
PN441
You were confident that the work could be performed with 31?---To be frank, I had no idea.
PN442
You hadn't turned your mind to that issue?---No.
PN443
And the numbers have been less than 39 for some time; you don't dispute that, do you?---Well, you have said - said for five months that has been the case. I take that at face value.
PN444
Do you have any information about the level of overtime at the terminal in that period?---I am not aware at the moment. I am not aware of that information.
**** ANTONY CHARLES THOW XXN MR JOHNS
PN445
So if I put it to you that there has been a reduction in overtime during that period since the numbers have been below 39, you can't dispute that?---I am simply not aware of any overtime numbers that have been worked at the facility at the moment. I am not aware of that. I can't make a judgment about something I know nothing about.
PN446
Yes. And you are unable to assist the Commission - give it any evidence about the effect that the reduction in 39 has had on the performance at work at Geelong, are you?---It is not something that I could give extra witness evidence on, I couldn't.
PN447
Right?---I am not aware of those facts.
PN448
No. I have nothing further.
PN449
PN450
MR LYONS: Just one thing, your Honour. Mr Thow, the amended attachment 7 to your statement - - -?---Yes.
PN451
- - - so that it is clear for the Commission, had the company agreed to that proposition can you explain what process the union would have followed from that point?---If this had been agreed in its entirety we would have simply held a meeting of the membership, explained the context in which this arose, all of the discussions that had occurred and why they had occurred, and then asked them to decide whether this was an adequate document, something that they would be willing to accept. That would be the proposal - that would be the way that we would deal with an issue such as this.
**** ANTONY CHARLES THOW RXN MR LYONS
PN452
And would that then have been - had the membership accepted that - - -?---Mm.
PN453
- - - would that have then been the end of the matter?---Well, it would - not really because it would have to be - agreement would have to be re-changed - would have to be redrafted and we would have to conduct another vote in accordance with the Act.
PN454
Do I understand that to mean that there would be a formal vote on an amended agreement?---Yes, that is correct.
PN455
Nothing else, your Honour.
PN456
PN457
THE DEPUTY PRESIDENT: Yes, Mr Lyons.
PN458
MR LYONS: Your Honour, that is all the witness evidence we would seek to put on, so perhaps we can hear my friend's witnesses and then proceed from there.
PN459
THE DEPUTY PRESIDENT: Yes, thank you. Mr Johns.
PN460
MR JOHNS: I would like to start with a brief opening. I don't plan to be very extensive save just to set the scene. In my submission, sir, this is a great case if you were deciding whether or not there has been a breach of the certified agreement. The company's position is that there hasn't been and there won't be by voluntary redundancies and the union's position is that there has been. The evidence from the union goes only to that question, whether or not there has been a breach of the certified agreement.
PN461
Now, sir, even if you find that there has been, or that there will be by the acceptance of voluntary redundancies, a breach of a certified agreement in and of itself is not industrial action and it does not invest this Commission with jurisdiction under section 127. In my submission, at its highest the union's case is that there has been a breach of the certified agreement. We have just now heard the end of the union's evidence and there is no evidence of any industrial action as it is defined in section 4.
PN462
None of the union's evidence goes to the question of whether or not there is an identifiable restriction on the performance of work. I specifically and very pointedly asked Mr Thow about that and he is unable to give any evidence about the effect that a reduction in the numbers has on the performance of work at the Geelong terminal. There is simply no evidence about the effect of the reduction in numbers on performance of work before the Commission from the union. And the onus is on them to establish that there is industrial action.
PN463
And the onus is on them to establish that there has been an identifiable - or there will be an identifiable reduction in the performance of work and in my submission they have wholeheartedly failed to meet that test. It will be my submission at the end of these proceedings that on that basis a section 127 jurisdiction is not made out and their application ought properly be dismissed. If the Commission pleases I call Paul McConaghy. I might ask that Mr Scully leave the room if that is appropriate.
PN464
THE DEPUTY PRESIDENT: Yes.
PN465
THE DEPUTY PRESIDENT: Mr Johns and Mr Lyons, I intend to adjourn at 12.30 so that may - depending on - how long did you intend that this witness should be under examination?
PN466
MR JOHNS: He will be under examination by me for three minutes and I am in the hands of Mr Lyons.
PN467
THE DEPUTY PRESIDENT: Right. Well, that being the case I would think that we will allow the finalisation of this witness' evidence, both in examination-in-chief and cross-examination and then I will adjourn for lunch. Thank you.
PN468
PN469
THE DEPUTY PRESIDENT: Yes, Mr Johns.
PN470
MR JOHNS: Thank you, your Honour. Is your name Paul Robert McConaghy?---That is correct.
PN471
And are you the Employee Relations Manager of Graincorp Operations Ltd?---Yes.
PN472
And have you prepared a witness statement in these proceedings?---Yes.
PN473
Now, Mr McConaghy, I understand you want to make some amendments to that. Would you take the Commission to those amendments?---Yes. Clause 4.1, it - if I could just - I didn't bring my copy with me but I will just read it:
PN474
The Australian Wheat Board is a part-owner of the Globex Melbourne Terminal which gives them - is part owner of the Globex Melbourne Terminal. They also have monopoly rights over all wheat exports. Last year the Globex Melbourne Terminal shipped one million tonnes of grain through the terminal and they propose to ship up to two million tonnes through this year. The Globex Melbourne Terminal has also additional land area and so it, rather than the AWB, it can expand the terminal on storage capacity.
PN475
Sir, might I suggest that what has just been read into transcript replace paragraph 4.1.
PN476
THE DEPUTY PRESIDENT: Yes.
PN477
MR JOHNS: Are there any other changes, Mr McConaghy?---Yes, there are I am sorry to say, clause 7.24. I apologise, I only discovered it while I was having a last read over it, your Honour. I had three conversations with Mr Thow after Thursday, 18 April. The one that is referred to there took place at about - between 4.15 and 4.30 on Monday, 22 April.
**** PAUL ROBERT McCONAGHY XN MR JOHNS
PN478
Are there any other changes, Mr McConaghy?---No.
PN479
Subject to those changes are the contents of your witness statement true and correct?---Yes.
PN480
I tender that document, sir.
PN481
PN482
MR JOHNS: Mr McConaghy, you have given some evidence in section 4 about the Australian Wheat Board. What do you say about the competitive environment that they present for you - for Graincorp?---Graincorp - sorry, AWB Ltd are probably our single greatest competitor.
PN483
And what understanding do you have of their industrial arrangements?---The only understanding I have is based on an enterprise agreement.
PN484
MR LYONS: Your Honour, can I ask what the relevance of industrial instruments in place at a competitor may or may not have to these proceedings?
PN485
THE DEPUTY PRESIDENT: Yes, you may. Mr Johns.
**** PAUL ROBERT McCONAGHY XN MR JOHNS
PN486
MR JOHNS: Your Honour, the company's position is that it needs to reduce the numbers at Geelong in order to match the competitive environment in which it finds itself, and it ought to be apparent to my friend that industrial arrangements which contain information about manning levels and requirements and the like are integral to the issue of the competitive environment and is, therefore, relevant in these proceedings when the company is saying that it has concerns about the competitive environment in which it is operating and it gives evidence about its understanding of the industrial arrangement at its competitor.
PN487
THE DEPUTY PRESIDENT: Yes. Mr Lyons.
PN488
MR LYONS: I am struggling how that goes to whether or not it is
PN489
industrial action. One would hope that any industrial action taken by anyone - - -
PN490
MR JOHNS: Sorry, I think my friend misheard me. I didn't say industrial action, I said industrial arrangements at the competitor.
PN491
MR LYONS: As I indicated, your Honour, I am struggling what the relevance is to the question before you which is whether or not the conduct of the employer constitutes industrial action.
PN492
MR JOHNS: I might borrow from my friend's submission. It goes to your discretion at large, sir as to the conduct of the parties and the like.
PN493
MR LYONS: Perhaps we will leave it to a matter of weight then, sir.
PN494
THE DEPUTY PRESIDENT: Yes, I intend to allow it, Mr Lyons. I think it has a relevance to the competitive environment. What weight I put it in the overall context I will consider at the appropriate time.
**** PAUL ROBERT McCONAGHY XN MR JOHNS
PN495
MR JOHNS: Sorry, Mr McConaghy. What is your understanding of the industrial arrangements at your competitor?---My knowledge is - and I am speaking about a competitor in terms of the facility in the port of Melbourne.
PN496
Yes?---My knowledge is limited to having read the enterprise agreement that covered the workforce at that terminal at the time we were renegotiating the enterprise agreement that covers the three Victorian Graincorp terminals.
PN497
Yes. So what is your understanding, having read that document?---When I read that document I formed the view that there were very considerable flexibilities available at that terminal which were not available to Graincorp. In particular there was a very low number of permanent employees with very considerable amounts of work presumably done by casuals. There were flexibilities in terms of what we would consider to be very short notice, calling people out at any hour of the day or night to coincide with the arrival of grain delivered by rail from the country. They are the ones that stick mainly in my mind.
PN498
Yes. And are you aware of who that agreement is between?---It is some time since I last read it but as I recollect it covers terminals run by Globex or Grain Co anywhere in Australia.
PN499
Who is the union party to that agreement?---The National Union of Workers.
PN500
I have nothing further. Thank you, sir. Just remain there, please, because my colleague, Mr Lyons, might have some questions for you.
PN501
PN502
MR LYONS: If I can turn first to that discussion you just had with my friend. The competitor, Grain Co, has been in operation for some considerable years in one form or another; is that correct?---Grain Co has been in operation for - under various titles for very many years.
**** PAUL ROBERT McCONAGHY XXN MR LYONS
PN503
Yes. But it was certainly in operation at Appleton Dock in 2000?---Yes.
PN504
Yes. And you have given evidence that you are aware of the industrial conditions applying at that site prior to negotiating the 2001 agreement with the NUW?---I was aware of what was written into the enterprise agreement that covered it, yes.
PN505
And you liked what you saw, didn't you?---Yes.
PN506
The company liked what it saw?---It did.
PN507
And in fact you claimed from the NUW in the 2001 negotiations various things contained from that competitor's agreement, didn't you?---The company did, yes.
PN508
Yes. But you then dropped off those claims, didn't you?---We didn't press them at that time.
PN509
You didn't in the end stick with those. You agreed with the union that you resile from those claims?---No, we certainly didn't resile from them. We reached a modus operandi that would allow us to move forward.
PN510
Well, none of those flexibilities that you just referred to appear in the 2001 Graincorp Agreement, do they?---There are no flexibilities at all in that agreement so, no.
PN511
So none of those matters you claimed ended up forming part of what the parties agreed in 2001?---No.
PN512
Can the witness be shown Mr Thow's statement. I take you, Mr McConaghy, to attachment 5 to that statement, about halfway through. It is a letter from yourself to Mr Donnelly?---Yes, I have it, I have it.
**** PAUL ROBERT McCONAGHY XXN MR LYONS
PN513
And Mr Thow has given evidence, which you were present in the Court for, that this represented the company offer which resulted in the 2001 agreement; do you agree with that evidence?---Yes.
PN514
Can I take you to the second page?---Yes.
PN515
On this basis the company is prepared to make the following offer. A rollover of the current agreement without any adjustments other than to rates of pay and duration.
PN516
Do you see that there?---Yes.
PN517
So I put it to you that in making that offer, which was accepted, the company resiled from its claims for further flexibilities in relation to Geelong terminal during the life of the new agreement?---For the purposes of entering into this agreement we didn't press those claims.
PN518
Mr McConaghy, I asked you a very specific question. The country agreed not to press any of those claims for the life of the 2001 agreement; isn't that the case?---No, that was not our understanding of what action we would take.
PN519
Well, Mr McConaghy you write to the State Secretary of the union saying the only change will be rates of pay and duration?---Well, I don't say any change. I say without any adjustments other than to rates of pay and duration.
PN520
Adjustment and change I put to you would mean the same thing. You write to the State Secretary - - -?---I don't think they do but we won't argue that.
**** PAUL ROBERT McCONAGHY XXN MR LYONS
PN521
You write to the State Secretary of the union saying - offering a rollover without any adjustments other than to rates of pay and duration and as I understand your last answer it is now your evidence that that was a lie?---No, it isn't. When I used the word "adjustment" in the context of this sort of agreement I talk about it adjusting rates of pay. When I talk about different sets of conditions I used the word "changing conditions", so that is how I distinguish. And in the common parlance that is used in the Industrial Relations circle I use - that is the distinction between those two words.
PN522
What does the term "other than to rates" mean in that case? It appears to me that adjustments and rates are separate?---Well, I don't know what it appears to you but if you want me to comment on that my understanding was that the wording of the clause - of the agreement would not be changed other than in terms of the employer's name would have to change and the rates of pay would have to change. The balance of the wording, whatever it should mean, would stay as it was.
PN523
And that is in fact what occurred, wasn't it?---That is - - -
PN524
The only amendments was the duration, name of the employer, the time of the agreement and the rates of pay?---Yes, I had an offsider at the time who was particularly punctilious about these matters and that is exactly what transpired.
PN525
If you received a written offer from a union for a new EBA indicating that they sought to rollover an agreement, what would you think that meant?---I would think that it means exactly what happened in this case, there would be no change to the wording of the agreement other than in terms of rates of pay.
PN526
And would you also reasonably accept from such an offer that the union had resiled from whatever other claims they had made during the process of enterprise bargaining?---No, because claims are not - claims can take many forms. Claims can either be one off claims or they can be ongoing claims that are not necessarily - and the latter are not necessarily pressed on every occasion.
**** PAUL ROBERT McCONAGHY XXN MR LYONS
PN527
Perhaps I will put it this way. Would you accept that they would resile from claims that would be inconsistent with the specific terms of the agreement?---With the specific terms of the agreement, yes.
PN528
So was it Graincorp's position, as I understand your evidence, that despite making an offer of a rollover it reserved the right to make whatever claims it wanted on the union at whatever point?---It reserved the right to administer the enterprise agreement giving effect to the meanings of the - meaning of the words that were contained in it.
PN529
Given, Mr McConaghy, I don't understand that answer, I asked you a specific question. The question is did Graincorp reserve the right to either reignite or place new claims on the union during the life of the enterprise agreement?---No, we didn't reserve the right.
PN530
So you accept that in line with the terms of your offer in the certified agreement that it is not open to Graincorp to place new or reignite old claims on the union or employees?---No, I don't accept that.
PN531
Well, Mr McConaghy, do you have the agreement there?---No, I don't. The only documents I have are my witness statement and what you handed to me.
PN532
Mr McConaghy, that is the 2001 agreement. Can I take you to clause 4?---Yes.
PN533
And that says:
PN534
During the life of the agreement there shall be no extra claims made by either party in relation to any matters dealt with in this agreement.
PN535
See that?---Yes.
**** PAUL ROBERT McCONAGHY XXN MR LYONS
PN536
Can you explain to the Commission how the company claim to reduce the manning levels contained at appendix B is consistent with that no extra claims clause?---It is consistent on the basis of the interpretation that I give to the words in which the number 39 is contained.
PN537
So is it only Graincorp that is bound by this novel interpretation of the no extra claims clause or does it apply to the respondent union?---Both parties are bound to it and I have consistently said that time and time again.
PN538
Well, clause 16 of the agreement says that a four per cent wage increase is payable and a further three per cent in the second year of the agreement?---Yes.
PN539
Can the union agitate an amended wage claim, is that caught by the no extra claims clause?---Well, I think they can agitate for anything they like. How far they get is another question.
PN540
So, Mr McConaghy, I am genuinely struggling with what meaning you ascribe to the no extra claims provision?---I - - -
PN541
In a practical sense how does it operate, what is its effect?---My own personal view, and I haven't sought legal advice on it, is that it is a pure formality that is required by the Commission to be included in enterprise agreements.
PN542
I put to you it is not a requirement that is contained within the Act?---I accept your opinion on that.
PN543
Perhaps if I put it to you this way, Mr McConaghy. You deal as industrial - Employee Relations Manager - - -?---It doesn't matter.
PN544
- - - with the National Union of Workers. You also deal with the Australian Workers Union I understand in Victoria and other states?---Yes.
**** PAUL ROBERT McCONAGHY XXN MR LYONS
PN545
And with some other unions as well?---The MUA, the CFMEU, whatever the ETU call themselves these days.
PN546
So a wide swathe of blue collar unions in Australia?---In New South Wales and Victoria.
PN547
And how would you feel if having signed an enterprise agreement one of those unions decides to - - -
PN548
MR JOHNS: Commissioner, what is the relevance of Mr McConaghy's feelings to the exercise of your jurisdiction in these proceedings? There is simply none.
PN549
THE DEPUTY PRESIDENT: Yes, Mr Lyons.
PN550
MR LYONS: Well, your Honour, this evidence has been put forward as giving evidence that the employer is both not breaching the agreement and not engaging in industrial action. I think the union ought be entitled to put the terms of that agreement to the witness. Given the answers that he has given about what he says the clause does not mean I am simply trying to elicit a response as to what circumstances he says that clause would cover.
PN551
MR JOHNS: Your Honour, the evidence is that clause 4 is consistent with Appendix B, Part II because of the interpretation that I give to that clause, referring to Appendix B, Part II. It is still of no relevance to the Commission how he would feel if the union breached the no extra claims clause.
PN552
MR LYONS: Well, he gave a specific answer but I am interested in what circumstance - what the company says that clause covers. If the union is clear on its meaning, it means no extra claims, the company has to have some novel view of its own which we say goes right to the heart of this issue, your Honour, because it is about whether or not they are prepared to abide by the terms of an agreement.
**** PAUL ROBERT McCONAGHY XXN MR LYONS
PN553
MR JOHNS: Commissioner, I am content for my friend to ask questions about what Mr McConaghy thinks is the interpretation of that clause, although in my submission his view about the interpretation of it is irrelevant. But the question that he asked was, "How would you feel if the union breached the no extra claims clause?" That is a totally different question of what he is now talking about. Now, if he resiles from asking that question I have no complaint.
PN554
MR LYONS: Perhaps I will put it this way. Would the company accept that a union was in breach of the no extra claims clause if it sought to ignite a new or reignite an old claim, having signed the no extra claims clause?---I can truthfully say we would deal with that on its merits, we wouldn't be travelling ourselves with no extra claims because, as I said, I think of them as purely a formal thing that the Commission makes you put in to get the thing certified.
PN555
But in the end it does give both parties considerable protection, doesn't it, Mr McConaghy, formality or not?---Well, I don't know what protection it can give.
PN556
The protection is that in the end you are under no obligation to deal with a claim of the other parties, you can simply reject it out of hand, you don't even have to deal with it?---Well, you can do that in any case if you are prepared to suffer the consequences.
[12.19pm]
PN557
With the additional point though, surely during a term of an enterprise agreement that the mechanisms in the Act for forcing someone to change their mind are not available?---No, that is correct.
PN558
So, in a normal context of negotiating an enterprise bargaining agreement the parties have weapons in their armory in the form of protected industrial action to force people to change their mind?---That is correct.
**** PAUL ROBERT McCONAGHY XXN MR LYONS
PN559
And you don't have that within the term of the agreement, do you Mr McConaghy?---No.
PN560
And so the protection of the no extra claims clause is against rouge claims?---Yes.
PN561
If the NUW submitted, in September last year, completely out of the blue, a 10 per cent wage claim to apply from 1 January 2002, what would the company's reaction have been?---The company's reaction would have been outrage and I would have talked them into having discussions with the union about it.
PN562
And why would the company have been outraged?---Because the company is outraged by any claims for wage increases.
PN563
Well, a very progressive attitude if I might say, Mr McConaghy. Perhaps then we say a claim for - - -
PN564
THE DEPUTY PRESIDENT: And you are on the record having said that now, Mr Lyons, too.
PN565
MR LYONS: Perhaps - it doesn't record the tongue in my cheek. I am not quite sure - transcript doesn't record tone unfortunately.
PN566
Mr McConaghy, perhaps if I - given that attitude I will approach from a different angle, what if the claim was to be for 20 days annual sick pay?---So far as I was able to, if it was left to me, I would certainly enter into discussions about it and I would do so through what I call our workplace consultative arrangements.
PN567
But, in the end, the employer - you would be under no obligation to agree to that claim, would you?---No, certainly not.
**** PAUL ROBERT McCONAGHY XXN MR LYONS
PN568
And that is as a result of the fact that there is a certified agreement in place?---That is part of the reason why we would be under no obligation to do it, yes.
PN569
That is the legally enforceable reason, isn't it?---Yes.
PN570
Perhaps if we turn then, Mr McConaghy, to the terms of the enterprise agreement in appendix B?---Yes.
PN571
And you have said that you don't think that clause 4 applies to appendix B, clause 2, is that my understanding of your evidence correct?---I am still trying to find the particular wording of that clause.
PN572
No, I think his evidence was that they are not inconsistent, not that it doesn't apply.
PN573
THE DEPUTY PRESIDENT: Yes, I don't recall what the actual evidence was.
PN574
MR LYONS: The transcript will record, but I don't think there is a meaningful difference - the transcript can bear out the exact ..... your Honour?---When I can find the appendix.
PN575
It is on page 71?---Excellent. Yes, I have it.
PN576
Yes. Perhaps you can explain to the Commission the basis on which this clause does not represent, a mandate for the level of 39?---I find it difficult to explain how things don't do things. It is easier to explain how they do do things.
**** PAUL ROBERT McCONAGHY XXN MR LYONS
PN577
I am happy for you to do it that way, Mr McConaghy. How does this clause allow you to reduce the manning levels below 39?---I varied the first paragraph as saying that we will not use as a reason for bringing about redundancies, any flexibility demonstrated during the life of this agreement. I have already said earlier that I don't think the agreement produces any flexibility at all, so therefore we are not bound not to use other legitimate reasons for offering redundancies.
PN578
For reasons other than flexibility, is that how I understand your evidence?---Other legitimate reasons, yes.
PN579
Yes. What does the third paragraph mean?---I would read it - I would read the first paragraph first, then the second paragraph and the third paragraph and I would interpret them as I go along, giving some meaning to the later paragraphs and the earlier paragraphs. Maybe that is just because if I am writing things, that is how I would do it. And I would say that the proper construction of the third paragraph is that if in fact, whilst for some reason it is established that redundancies had been effected on the basis of flexibility, then the number would have to be increased.
PN580
You have given evidence that you were not involved in the negotiation of the 1998 agreement, is that right?---Most certainly.
PN581
And you are aware that these words are identical from the '98 and the 2001 agreement?---I won't dispute that.
PN582
Yes. And you were present in the Court when Mr Thow gave his evidence as to the meaning of that first paragraph?---I was.
PN583
Yes. And you are aware that Mr Thow's evidence is that that was a safeguard against the company double-counting flexibility?---I am aware that that is the view that he expressed when he gave evidence.
**** PAUL ROBERT McCONAGHY XXN MR LYONS
PN584
And you are not in a position to deny that evidence, are you, Mr McConaghy?---Only to the extent that I am able to read the words contained in paragraph 2 of appendix B.
PN585
So, you are not in a position to rebut the evidence that at the time of the making of the agreement, the parties intended paragraphs 1 and 3 to deal with quite separate circumstances?---I have no manner at all of being able to establish what the intentions of the parties were other than they were given expression in the written document.
PN586
Given your interpretation, can you explain why the third paragraph of part 2 ought not be interpreted on its face to mean that the company can't go below 39?
PN587
MR JOHNS: Well, your Honour, surely that is a matter for me in my submissions rather than for Mr McConaghy - in his evidence.
PN588
MR LYONS: Well, Mr McConaghy has given some evidence that he is the manager within the company who has responsibility for ER matters and was presumably given the advice that the course of action the company has embarked upon is lawful. It was presumably his decision.
PN589
THE DEPUTY PRESIDENT: Yes, I will allow the question.
PN590
MR LYONS: Mr McConaghy, can you explain to the Commission the basis on which you can find anything in the third paragraph which allows the company to reduce the numbers below 39?---Separated from the preceding two paragraphs, no.
PN591
Can I take you to the attachment - sorry, it is to Mr Thow's statement, I am sorry, Mr McConaghy, and is attachment 4, which is minutes of EBA 2001 meeting 2. Do you have that one?---Two, yes.
**** PAUL ROBERT McCONAGHY XXN MR LYONS
PN592
Yes. And can you go to the third page of that document?---Yes.
PN593
Can you see there, two thirds of the way down, it refers to appendix B?---Yes.
PN594
Yes. And do you accept that that - those words there reflect the position put by the company in the negotiations with the NUW?---Most certainly. Yes, indeed.
PN595
Yes. And that position said that the company was happy to maintain point 2, except the first sentence, but wanted to delete the remaining material because, and I quote:
PN596
Staffing levels -
PN597
sorry, I will start that again -
PN598
The company does not believe staffing levels should be in an enterprise agreement.
PN599
?---That is the company's very firm view, then, now.
PN600
Yes, we will return to the company's view, but can I put it to you that the position adopted by these minutes, which you have said is an accurate position, is a different interpretation than the one you now seek to place on the agreement as a result of these proceedings? Because the company, isn't it true, accepts in those minutes that the second half of point 2:
PN601
...requires 39 employees.
**** PAUL ROBERT McCONAGHY XXN MR LYONS
PN602
And that is why you wanted it deleted, isn't it, Mr McConaghy? Because it requires you to have 39?---Once again, I will have to look at it. 71 I think you said. I don't think there is any inconsistency with what is in the minutes and what is written in - and my interpretation of clause 2. I think they are two totally different things.
PN603
Well, Mr McConaghy, it says:
PN604
The company does not believe staff levels should be in the enterprise agreement.
PN605
?---That is correct.
PN606
And that is why you have sought the deletion of every - of the second two paragraphs, in effect - - -?---Yes.
PN607
- - - of clause 2?---Yes, because it would be inconsistent with that view to willingly leave in what I wanted to exclude.
PN608
And that is because that paragraph provides for fixed staffing levels, doesn't it, Mr McConaghy?---Yes, the company does not believe that staffing numbers should be included in any enterprise agreement.
PN609
So you accept that the second half of that paragraph requires a staffing level of 39?---No, it is sufficient that it merely mentions numbers to make it objectionable to me.
PN610
Well, Mr McConaghy, again your evidence appears to be inconsistent with what appears in the minutes. The minutes appear to make a clear difference consistent with Mr Thow's evidence between the matter contained in the first paragraph and the matter contained in the second and third paragraphs. Do you accept that?---Would you mind repeating that?
**** PAUL ROBERT McCONAGHY XXN MR LYONS
PN611
The minutes appear to make a distinction between the circumstances covered by paragraph 1 of clause 2 of appendix B and the material contained in the second two paragraphs of that appendix?---The part in the minutes that you are referring to is headed clauses of proposed DVA prepared by the NUW the company has problems with. I had problems with that part of that clause, and so do the minutes correctly record that I had problems, but I do not believe that those problems are inconsistent with the interpretation I had taken of clause 2.
PN612
Despite the fact that the drawing of the distinction as the minutes do between the first and second and third paragraphs, is entirely consistent with Mr Thow's evidence about the original intention?---Well, I have no way of knowing what the original intention was other than what is written in the documentation.
PN613
So this was a red letter issue for the company, was it, manning levels?---It is one of the red letter issues, yes.
PN614
Something of the matter of principle about manning levels in agreements?---Yes.
PN615
Is this the only agreement of Graincorp that has fixed manning levels?---Of this sort? Yes.
PN616
When you say of this sort, what do you mean by that?---Well, in fact, of any sort - when I think of it - of any sort.
PN617
And it was a critical issue for the company from a commercial basis as well, if I understand your evidence?---Overstaffing is a critical issue for the company, yes.
PN618
So, why did you abandon the claim?---Why didn't I press it at that time?
**** PAUL ROBERT McCONAGHY XXN MR LYONS
PN619
Yes?---Because, as I have said, I wanted to - well, the company wanted to arrive at a modus operandi to allow us to get on with things. I didn't abandon the claim, in fact I distinctly remember saying that even though I might long since be gone or even dead, the company would keep on coming back to it time and time again until it got its way.
PN620
Wouldn't a reasonable interpretation of that remark, given the history of negotiations at the site be, the next time the agreement was negotiated, we would still be talking about numbers at the Geelong site?---That was certainly included under the umbrella of my comment, yes.
PN621
So, it would have been reasonable for the union to interpret that as being the next time we do this agreement, we are having the same discussion?---Most certainly.
PN622
As they had in '98 and '96 and '92?---Well, I don't know what they did back then, but - - -
PN623
I think that is made out - - -?--- - - - it would have been reasonable.
PN624
- - - in one of these documents. But, did you mean that you would come back within the middle of the agreement?---I hadn't formed a view on it at that stage because I was taken up with getting that enterprise agreement dealt with and I hadn't gone on any further than that, so, no, at that time.
PN625
But, did you understand that the company was committing to the terms of the agreement for its life?---The company is bound by the enterprise agreement for the life of the enterprise agreement.
PN626
Did you at any time during those negotiations express a view that the company could reduce below 39 for whatever reason it chose?---No.
**** PAUL ROBERT McCONAGHY XXN MR LYONS
PN627
There was no discussion of your interpretation of appendix - clause 2 of appendix B during negotiations of the agreement?---No.
PN628
So the union was never given any evidence to understand that its long-standing interpretation of that provision was altered by the new management?---No.
PN629
Mr McConaghy, what number of bulk grain workers does the company intend to try and reduce the workforce to?---The number that is determined by the normal principles of staffing that operate?
PN630
Forgive me, I am looking for a number, Mr McConaghy. What number does Mr Scully and yourself and the other members of the management team believe you need to run the Geelong terminal? The permanent, full-time bulk grain workers?---We have made a suggestion to the union that I put in writing at our meeting when the state secretary was present, that we would go down to a certain number by 30 April, if I can consult my statement - it is in there:
PN631
A reduction of six or seven employees by 30 April 2002, a further reduction of five or six employees by 30 June 2002, by 31 December 2002 the parties to cooperatively review the number of employees required for the year commencing 1 January 2003.
PN632
So, it has got no bottom?---The bottom is as determined by the normal principles of staffing.
PN633
No fixed bottom?---Yes, it has got a fixed bottom. We cannot ask people to do more than a fair day's work. We cannot put people in positions where they would be exposed to unreasonable risks. We have to take account of the technology that is involved. As far as I know, they are the three major principles of staffing.
PN634
But it could be up to half the current workforce?---If that is what we arrive at on the basis of those principles, then yes.
**** PAUL ROBERT McCONAGHY XXN MR LYONS
PN635
And the company has already released two permanent full-time bulk grain workers as redundancies?---One person specifically requested redundancy and we gave it to that person. The other person agreed that they would like a voluntary redundancy and we let that person go.
PN636
And if the, sorry, the company has made an open offer to all bulk grain workers to express an interest in voluntary redundancy?---Yes, the offer we made under my signature - under my name.
PN637
Yes. And the company has indicated it will entertain all expressions of interest although doesn't undertake to accept them all without reference to skills base?---Correct.
PN638
Is that an accurate reflection - - -?---That is true.
PN639
- - - of the situation?---Yes.
PN640
So, provided the company maintains the skills set at the Geelong terminal it will release an indefinite number of people?---So long as it doesn't transgress those basic principles of staffing that I have already canvassed, yes.
PN641
And if the Commission were not to issue an order against you proceeding that way, what actions would the company take in respect of that redundancy process?---Well the offer - the written offer that I have made has no date on it so it remains open.
PN642
Yes, and were people to offer for redundancy and they met the skills set, what would happen then?---If they voluntarily came forward and they met the skills set we would let them go.
**** PAUL ROBERT McCONAGHY XXN MR LYONS
PN643
And if you can get enough volunteers, Mr McConaghy, what would you do then?---We have neither had - made a decision on that nor have we had any discussions about it.
PN644
The people that you have released, I think in your evidence you say that there is going to be a bit of a roller coaster at Graincorp with changes to come in - - -?---Yes.
PN645
And I think, as I interpret your evidence, is that some people don't like change and they may be better off outside the organisation?---I think what I said when I used that analogy, was that there had been considerable amounts of change and people that didn't want to go through any more, it was only fair to let them go.
PN646
So, are you going to replace those people?---Not the ones that have already left because our staffing doesn't require them.
PN647
What about if the Commission doesn't intervene in this matter and there are more redundancies? Are you intending to replace those numbers?---Only when we get to such a level that it would be proper to replace them on the principles that I have already outlined.
PN648
But at present, if the Commission does intervene in this matter, there are four volunteers tomorrow, they meet the skills set and you release them, you wouldn't be replacing those employees?---Not unless - no, we wouldn't.
PN649
So, on an indefinite basis the company would be intending to run the terminal with less than 39 employees - bulk grain workers?---We would be intending to run the terminal with an appropriate number of bulk grain workers.
PN650
Mr McConaghy, that wasn't the question I asked you. I asked you would you be intending to run the terminal on an ongoing basis with less than 39 full-time permanent bulk grain workers?---Most definitely.
**** PAUL ROBERT McCONAGHY XXN MR LYONS
PN651
And you would continue to entertain applications for voluntary redundancies?---Until we reach the appropriate level, yes.
PN652
And if you didn't get enough applications for voluntary redundancies to get to that level you are talking about, what would you do then?---We have not addressed our minds to that because we think that the voluntary, at this stage is likely, when the heat goes out of this, to produce some more people.
PN653
Would you consider forced redundancies?---I think we would have to consider all of our options.
PN654
Your Honour, if I could have 30 seconds, I need to get some instructions about something that was put to - - -
PN655
THE DEPUTY PRESIDENT: Yes.
PN656
MR LYONS: Mr McConaghy, you were present at the Court when Mr Johns asked Mr Thow some questions about whether he knew that the numbers had been below 39 for sometime?---I went out a couple of times and I - - -
PN657
Right, I hadn't noticed you leave the Courtroom?---I left a couple of - twice.
PN658
Are you aware of the current number of full-time permanent bulk grain workers at Geelong?---Yes, 36.
PN659
36. And I put it to you that before sometime during the middle of last year that number was 40, it has reduced by four, made up of the following people. A gentleman by the name of Mr Markham, who was terminated?---I recollect Mr Markham.
**** PAUL ROBERT McCONAGHY XXN MR LYONS
PN660
You do well, from my understanding. A gentleman named Mr Hogan, who has been promoted into supervisory ranks?---Outstanding competent, I recommend - I recollect him.
PN661
And the two redundancies released in April of 2002?---Yes.
PN662
And I put it to you that the union has at various points since the termination of Mr Markham, sought that the company fill that position?---It has, but I am not inclined to because Commissioner Blair hasn't brought down his decision on the unfair termination application.
PN663
Yes. So it is fair to say, isn't it that the company's position is that it doesn't want to fill a job in the event the Commission orders a reinstatement?---We wouldn't fill the job in any case, to come straight to the point, but there is the possibility that he will be reinstated.
PN664
But that was the reason that you gave to the delegates when they brought the matter up with you, wasn't it?---And a very proper reason it was.
PN665
Yes. And the - isn't it also true that since the promotion of Mr Hogan, do you know when the promotion of Mr Hogan occurred?---Mr Hogan has - I don't go for public service terminology like, acting, etcetera, etcetera. Mr Hogan has been being a foreman on and off for a considerable period of time, as I recollect it is some months now since he carried out those duties on a full-time basis and as far as the company is concerned, he is a foreman.
PN666
Yes. But at some point he was made a permanent foreman outside the scope of the agreement?---I think the documentation is still being processed - - -
PN667
Yes?--- - - - but he can be taken to be a permanent foreman.
**** PAUL ROBERT McCONAGHY XXN MR LYONS
PN668
But is also fair to say, isn't it, that the union is agitated to have the position he filled as a bulk grain worker re-filled?---Yes.
PN669
Yes, and you have had numerous discussions with the delegates, Mr Thompson, myself in fact, about that issue in an attempt to get that job filled?---Yes.
PN670
So, it is fair to say, isn't it, that the union has at all times sought to maintain 39?---No doubt about it.
PN671
And we have never at any stage accepted the company employ less than 39?---That is correct.
[12.47pm]
PN672
If the Commission pleases.
PN673
THE DEPUTY PRESIDENT: Thanks, Mr Lyons. Mr Johns?
PN674
MR JOHNS: Nothing arising, sir.
PN675
PN676
THE DEPUTY PRESIDENT: I intend to adjourn until 2 pm. We will reconvene in here at 2 pm.
LUNCHEON ADJOURNMENT [12.48pm]
RESUMED [2.04pm]
PN677
THE DEPUTY PRESIDENT: Yes, Mr Johns.
PN678
PN679
THE DEPUTY PRESIDENT: Yes, Mr Johns.
PN680
MR JOHNS: Thank you, your Honour.
PN681
Is your name Kenneth Peter Scully?---It is.
PN682
And are you employed by Graincorp Operations Limited as the manager at the Geelong terminal?---I am.
PN683
Has a witness statement been prepared for you in relation to these proceedings?---Yes, it has.
PN684
Do you have a copy of it there with you?---I do.
PN685
Are there any changes you would like to make to the statement?---There are no changes.
PN686
Are the contents of the statement true and correct?---They are true and correct.
PN687
PN688
MR JOHNS: Thank you, your Honour.
PN689
Mr Scully, there has been some evidence before this Commission about the numbers at the Geelong terminal being below 39 presently. What comment can you make about the operations of the terminal during that time?---It has had no impact on the operations of the terminal.
**** KENNETH PETER SCULLY XN MR JOHNS
PN690
And how do you assess that?---The overtime hours have not increased and, in fact, they have decreased and we haven't had to employ additional staff beyond our normal realms of casuals during harvest and those types of things.
PN691
I have nothing further. Would you wait there, please, Mr Scully.
PN692
PN693
MR LYONS: If the Commission pleases.
PN694
Mr Scully, there are casual employees engaged at the Geelong terminal?---There are on a casual basis.
PN695
Yes. I understand you have about a dozen to 16 of those on the books at any given time?---Up until recent times we have had up to 12. That number has greatly reduced now because they are not getting the hours and they have moved on.
PN696
So do you know how many casuals you still have on the books at the moment?---I think there is about six active casuals that we use on a casual basis.
PN697
My understanding is that there are still 10 on the books. Does it surprise you that that is the number?---It would surprise me.
PN698
Is it somewhere - it could be somewhere between six and 10?---There could be somewhere between six and 10, but the information I have is that most of those are no longer available because they have found full-time employment.
**** KENNETH PETER SCULLY XXN MR LYONS
PN699
Right. And the ones that are on the books are getting work on a regular basis?---Ad hoc basis.
PN700
Does that mean - are they engaged for some period most weeks?---No.
PN701
Not at all?---They are engaged on an ad hoc basis. Can I explain. When we have certain duties where we need extra staffing. I will give an example. A couple of weeks ago we had four casuals on night shift to do certain cleaning activities we couldn't do during the day. They were engaged for four days. At the end of that, they were terminated.
PN702
Do you know how many casuals are working today at the Geelong terminal?---Based on having no road, rail only and no shipping, there is probably none, but I would have to check.
PN703
Would it surprise you to know that there are five?---It would surprise me.
PN704
Yes. Well, I put it to you that there are five?---I have not asked that question today, so I think I can't agree or disagree.
PN705
The volume of work that goes from the Geelong terminal changes from time to time depending on seasonal and other factors, doesn't it?---It does.
PN706
Yes. And it may also depend on whether or not there are ships booked in?---That is correct.
PN707
Yes. And how many trains are due to arrive?---That is correct.
PN708
And whether or not there are road receivals?---That is correct.
**** KENNETH PETER SCULLY XXN MR LYONS
PN709
Yes. And so the volume of work over time can vary such that you will require more casuals at some point than at others. Is that how I understand your earlier evidence?---We use a pool of casuals. Within that pool we bring them on, on a daily basis, as required.
PN710
Based on the work to be performed?---Based on the workload.
PN711
Yes?---Based on the workload per day.
PN712
Has the company recently implemented, and by recently I mean the period in the latter part of 2001 to present, implemented any technological change at the facility that would obviate the need for some positions?---No.
PN713
Has the volume of work through the facility in recent times declined in an unexpected way?---It has declined and it - when you say unexpected, it has been anticipated because of the issues before us.
PN714
Are you able to say whether any recent declines have been the result of a long-term downturn in the volumes or whether it is the short-term fluctuations you referred to earlier?---The downturn we are having is purely in shipping. If I give an example, the last two years we have had five million tonne harvests. Approximately 25 per cent of that is barley, the rest is wheat. With the ownership the Wheat Board have and Grain Co in Melbourne, they have indicated to us that they are only going to give us 600,000 tonne of that four million tonne. So based on that, that is where the downturn is. The grain that we used to get through the Port of Geelong is now going through the Port of Melbourne.
PN715
How many ships have you had through since February 2002?---I don't have those numbers on me, but I can give you an indication. We have had about four or five ships a month since that time and of those, one or two are Wheat Board ships.
**** KENNETH PETER SCULLY XXN MR LYONS
PN716
Yes. I put it to you, my instruction from the delegates are that that number is between 12 and 15 which I think is consistent with what you have just said, four a month? Four to five a month?---Yes.
PN717
Yes?---Well - - -
PN718
And that is not a - sorry, Mr Scully, I didn't mean to interrupt you if you want to continue the answer?---That is all right.
PN719
Did - and that is not a reduced number of ships for that period, is it, in the last three months?---We do approximately a hundred ships a year. We average about eight ships a month.
PN720
Yes. So why did you say you averaged five ships a month?---No, no. I just said - up until December last year we were doing a hundred ships a year.
PN721
Yes?---Which is approximately eight ships a month. So the downturn is between four and five, and eight.
PN722
Yes?---The enterprise agreement requires you to man up certain posts, if you like, or job functions across the terminal, depending what work is being performed on the day, doesn't it, Mr Scully?---I don't think it specifically dictates what areas within the terminal are to be staffed.
PN723
But it does require you to have a certain number of people on site for certain functions. Is that correct?---I don't think the EBA actually says that.
PN724
Well, Mr Scully, it has been something that my instructions are you have complained bitterly to the delegates and the union about having to man up certain jobs. Isn't that correct?---About the historic manning regime of the terminal, that is correct.
**** KENNETH PETER SCULLY XXN MR LYONS
PN725
Yes. And that has included complaints about manning individual functions, is that correct?---That is correct.
PN726
And that is part of your overall complaint about the 39, isn't it?---No.
PN727
So your view about how an individual task is performed bears no relationship to what you think the overall manning of the terminal should be?---Sorry, can you repeat that question?
PN728
Your objection to manning arrangements for individual positions is different to your position about the overall manning levels at the terminal. Is that how I understand what you said?---There is - your suggestion there is two issues. One is the issue that current Geelong structure is not competitive and that we are losing all our export grain. I also have another issue which I have raised since I joined the Geelong terminal about historic manning levels.
PN729
And that is not related to the 39 or is related to the 39?---Well, they are related to each other, but the issue in relation to trying to restructure Geelong to make it competitive with our competitor in Melbourne is a separate issue.
PN730
But there is a custom and practice at the site, isn't there, about what tasks are performed depending on what jobs are being performed at the site that day. Whether there is a ship in, are you doing road receivals, is there a train in, is there wood chips to perform and these kinds of things?---Yes, there is a historic manning regime in place.
PN731
Yes. And in practice, you observe that manning regime, don't you, Mr Scully?---In my two and half years here, I have tried to make changes in that area, yes.
PN732
And you have tried to negotiate those changes through with the union or delegates?---Yes, we have.
**** KENNETH PETER SCULLY XXN MR LYONS
PN733
But do you accept that the figure of 39 is related to the historical position on the manning of individual jobs? That that is how the number was arrived at?---I wasn't party to the original negotiations so I can't really comment on that.
PN734
But it is fair to say, isn't it, that the number 39 reflects the allocation of labour to jobs with an allowance that takes account of absences and other things. Is that right?---The figure 39 is something that I have inherited as the terminal manager. I have had no input into it so I don't agree with you.
PN735
You don't agree that there is any connection between the historical manning for individual jobs and the historic manning levels in the terminal as a whole?---You asked me a question before about historic manning levels or manning levels. There is nothing in the EBA document. The only thing in the EBA document is in appendix B, clause 2, which refers to 39.
PN736
Yes. Mr Scully, what was your role in the negotiation of the 2001 enterprise agreement?---As the Geelong terminal manager I was party to those discussions.
PN737
Yes. And you were, as the company officer directly responsible for the terminal, involved in the development of the company's position in those negotiations?---I wouldn't say the company's position. The Geelong position.
PN738
I am not quite aware of the distinction you are drawing there. Are you talking about the things that might apply to Sunshine and Portland as well?---That is correct.
PN739
That is correct, right. So is it fair to say that you were intimately involved in the company's position in respect of the manning level issues of the 2001 negotiation?---I don't think we had discussions about manning levels at Geelong other than the deletion of appendix 2, clause 2.
**** KENNETH PETER SCULLY XXN MR LYONS
PN740
Yes. You are aware, though, that the company - you were present in the Court when there was some discussion of this with Mr Thow, that there was a company claim to delete all reference to manning levels in the 2001 agreement?---That is what I just said, that I was privy to the discussion about appendix B, clause 2 being deleted.
PN741
And you presumably, given what you have said about inheriting the position, supported that position on behalf of the company. It was a position you agreed with?---That was the company position. It wasn't specifically an issue I had with Geelong.
PN742
It was an important issue, though, wasn't it? That was Mr McConaghy's evidence?---I didn't hear his evidence. As you have said, it is a company stance, not a Geelong stance.
PN743
Yes. It is fair to say that you, as the manager of the terminal, believe the terminal is over-manned, don't you?---It is over-staffed for the activities we currently do.
PN744
And you have believed that pretty much since you took the job on and found out who was who in the zoo?---There is probably two answers to that question. During the EBA discussions in 2001, I actually put a proposal up to increase the manning to reduce the overtime on Mondays and Fridays. So in one respect, I have tried to increase the manning to reduce the cost. On the other hand, the terminal is over-staffed for the activities it does. Or the historic manning of those activities.
PN745
Yes, and that was a position which you held leading into the 2001 negotiations?---Sorry, what position was that?
PN746
The position that the terminal was over-staffed?---I don't think that was the position we had at that time.
**** KENNETH PETER SCULLY XXN MR LYONS
PN747
But you did seek the deletion of clause 2 of appendix B?---I did not seek the deletion of that clause.
PN748
Well, the company did, Mr Scully?---Through Mr McConaghy, yes, I agree.
PN749
Now why did the company resolve from that claim?---That particular claim?
PN750
Yes?---I don't think it has ever resolved from that claim.
PN751
Well, why did it do an enterprise agreement that is described as a rollover that maintained clause 2 of appendix B?---I think the company took a position that we weren't going to get where we wanted to go and in the interests of moving forward that we rolled over. One of the other issues was that Graincorp had only just recently taken over Vic Grain and they didn't know enough about the company. And that - I think that was the major reason that Graincorp decided to roll it over.
PN752
So you were leaving the matters for another day. Is that how I understand what you just said?---We agreed to roll it over, but we also wrote to all staff advising them that we couldn't stand on our laurels and do nothing; that we were in a competitive environment and we had to make - we had to sit down and form consultative committees.
PN753
Yes, but in a formal legal sense, the company agreed to maintain the pre-existing clauses which mandated 39 employees at the Geelong terminal. Is that right?---Well, the company agreed to a rollover.
PN754
Yes. And that had the effect of agreeing - continuing to agree to 39?---I wouldn't say that we agreed to 39. To whatever that clause means.
**** KENNETH PETER SCULLY XXN MR LYONS
PN755
Whatever that clause means. I might return to that point in a minute, Mr Scully. Isn't it true that the enterprise agreement requires the Graincorp to employ 39 full-time permanent bulk grain workers?---Based on history, yes, it does.
PN756
And isn't it clear then, that requiring people to work without 39 full-time permanent bulk grain workers is not in compliance with that agreement?---Can you ask that question again?
PN757
Isn't it true then, that requiring work without 39 full-time permanent bulk grain workers is not in compliance or in accordance with that agreement?---If the agreement means that we have to employ 39 bulk grain workers, that is correct.
PN758
So isn't it also true then that requiring the remaining, if the company continues to reduce the workforce, will be entirely inconsistent with that clause 2, appendix B?---I see that question as being somewhat a legal argument which I am not skilled enough to answer.
PN759
Perhaps if I approach it from an other angle, Mr Scully. At the moment the employees are entitled to attend for work with 38 other people, do you accept that?---In the EBA at the moment there is a number, actually is 39, which says that we can't produce below - I will have to repeat what it says, but there is a figure there, 39.
PN760
Yes, and so if there was work performing less than 39 people, that amounts to the company not offering work in the way that the agreement provides, is that correct?---I don't quite understand the question.
PN761
Well, the agreement says that you are entitled to come to work with 38 other bulk grain, full time bulk grain workers, Mr Scully, doesn't it?---Can I read that clause to see what it says?
**** KENNETH PETER SCULLY XXN MR LYONS
PN762
Certainly?---Sorry, can you repeat the question?
PN763
I will ask you in two parts, Mr Scully, for ease. I put it to you that it is clear from that agreement that a full time permanent bulk grain worker is entitled to be part of a group of 39 performing the work of those persons at the Geelong Terminal, isn't that correct?---I agree that it says there the number of full time employees be 39.
PN764
Yes, so that creates - or that is effectively a guarantee from the company that that crew will be 39 people?---Yes.
PN765
Yes, and so if I am attending for work as a full time permanent bulk grain worker and there are less than 39, on it's face, the company appears to be in breach of the agreement?---But only one day, there is never 39, there is usually less.
PN766
I understand that. For your Honour's benefit, because of the shift rosters there is not always 39 under the roof. There may be different numbers from time to time. But you are entitled to be part of a crew of 39 performing the overall work of the Geelong Terminal?---Yes, agree.
PN767
Yes. Mr Scully, was it your decision to make an offer of voluntary redundancies to the bulk grain workers?---Are you referring to the letter that went to all staff?
PN768
No, the letter, I understand, is signed by Mr McConaghy. The question was, who made the decision to offer the voluntary redundancies?---After the discussion Paul McConaghy had with Anthony Thow I was advised that I could offer voluntary redundancies to staff.
PN769
Perhaps we could go back a step from that, before the negotiations broke down, whose decision in the company, if it wasn't your own, was it that the numbers needed to be reduced in the current environment?---Sorry, can you ask the question again?
**** KENNETH PETER SCULLY XXN MR LYONS
PN770
Who made the decision that there should be less than 39?---I would probably propose that it came from Mr Di Leo.
PN771
Mr Di Leo is the chief operating officer?---That is correct.
PN772
And presumably the chief operating officer isn't in touch with everything that happens at the Geelong Terminal?---Quite a few - - -
PN773
On a day to day basis?---On quite a few matters he is, bearing in mind that we have three other terminals.
PN774
He did that on the basis of advice from you, did he?---On the basis of advice from myself and Paul.
PN775
Yes, and at the time the decision was made was there any discussion about the terms of the enterprise agreement and how that would affect that decision?---That matter was raised.
PN776
And can you inform the Commission what the nature of that discussion was?---From memory it was one of the issues raised about restructuring Geelong, that there was a clause in appendix B, and that we needed to get some legal advice on that.
PN777
About whether or not it restricted your ability to reduce below 39?---Correct.
PN778
So is it fair to say that based on your first reading of clause 2, the reaction of the management group was that you couldn't reduce it below 39?---I don't agree with that.
**** KENNETH PETER SCULLY XXN MR LYONS
PN779
Well, why were you seeking legal advice?---To see where we stood, as you would do.
PN780
Well, Mr Scully, I am struggling about why you would seek legal advice about something if you do not believe that you are likely to be in breach of it?---The reason we sought legal advice is that the clause specifically talks about flexibilities and automation. There is no reference there to restructuring because we are becoming uncompetitive. They were the reasons for seeking legal advice.
PN781
In the discussions you had with Mr McConaghy and Mr Di Leo, did any of you - or any of the persons at that meeting concede that action to reduce below 39 would be in breach of the agreement?---I don't know whether we came to that outcome.
PN782
Mr Scully, can I take you to the third part of clause 2 of appendix B, the paragraph that commences:
PN783
This number of full time employees -
PN784
?---Yes.
PN785
It says:
PN786
This number of full time employees, 39, is to be maintained for the life of the agreement meaning that replacements will be sought when numbers fall below this level.
PN787
I put it to you that in your discussion with Mr Di Leo and Mr McConaghy, you would have thought that means we can't reduce the numbers below 39?---No, because we were specifically referring back to the second paragraph where it referred to flexibility in manning work practices.
**** KENNETH PETER SCULLY XXN MR LYONS
PN788
Yes, but the agreement does have a process or covers off flexibilities, but at the end it has an absolute prohibition, doesn't it? It says you cannot do it?---I don't agree.
PN789
Was the legal advice you sought legal advice about whether or not you could wiggle out of the agreement?---No.
PN790
Avoid the agreement?---No.
PN791
Did the legal advice go to what would happen to the company if it breached the agreement?---No, I think the legal advice we sought, what does that clause mean?
PN792
Was the legal advice designed to avoid the company breaching the agreement, or was it designed to find a way around the agreement?---As I said before, the legal advice was sought to see what that agreement meant.
PN793
So it was simply asking for an opinion about what it meant?---That is correct.
PN794
With no reference whatsoever, in your instructions to counsel your solicitors about what you were planning to do?---Our instruction to our solicitors was that - about the competitive environment we are in, in relation to losing probably 2 million tonne of grain this year, and that we are in discussions with NUW, and we wanted to know what that clause actually meant.
PN795
Thank you, Mr Scully. If the Commission pleases.
PN796
**** KENNETH PETER SCULLY RXN MR JOHNS
PN797
MR JOHNS: Thank you, your Honour.
PN798
Mr Scully, there was some discussion in the exchanges with Mr Lyon about the fact because of shift arrangements there is never 39 on at any one time, how many are on there at one time?---It varies. Supposedly on Mondays and Fridays there is - well, there should be 16 on, as of half of 38 or whatever the number is today. We work a four-day week which means everybody is there Tuesday, Wednesday and Thursday, and half the crew are there on Friday and half on Monday.
PN799
So how many are there Tuesday, Wednesday and Thursday?---Supposedly everybody is there, but that is assuming that nobody is taking annual leave or RDOs, which there is always someone away.
PN800
So how many is that, assuming no one is away on Tuesday to Thursday?---Assuming no one is away today, there would be 36 there today.
PN801
Right. I have nothing further, thank you.
PN802
THE DEPUTY PRESIDENT: Could I just ask one question, Mr Scully. In the event that somebody is not there for sick leave, annual leave, whatever reason, is it normal practice that that person would be replaced by a casual?---Not normal practice. Supposing on a Tuesday, Wednesday or Thursday, I have got staff coming out my ears, as such. So there is additional people there. On a Monday and Friday we need to top up, and they would be topped up with permanent employees who are having days off.
PN803
PN804
MR JOHNS: That concludes the evidence on behalf of the respondent.
PN805
THE DEPUTY PRESIDENT: Thank you, Mr Johns. Yes, Mr Lyons.
[2.34pm]
PN806
MR LYONS: If the Commission pleases. If I can deal first, your Honour, with the jurisdictional matters which we need to satisfy you of to enable the making of an order, and they are in four parts. The most important, of course, in this case is whether or not the actions of the employer constituted industrial action. I propose to come to that last. The first matter that we raise is that the NUW, we say, clearly has standing to bring this application. I don't think that is contested by the respondent and in any case is made out on the relevant authorities that a union respondent to the relevant certified agreement governing the terms and conditions of employment has standing to bring an application of this nature.
PN807
We secondly say that the evidence is clear that the industrial action - or what we say is industrial action has occurred and is likely to continue, and in doing that we rely on the evidence of Mr McConaghy, who indicated that in any event that this Commission does not intervene in relation to this matter, that the process of reduction of the workforce will continue.
PN808
Mr McConaghy said that in the first instance that would be to continue to allow the release of volunteers for redundancy subject to them meeting a - or not overwhelmingly reducing the skills mix contained at the Geelong terminal, but he then went on to say that in the event that there are not enough volunteers to reduce the numbers to the level the company seeks to reduce it to, that they will consider other options, I believe is the language he used. When put to him that that could involve compulsory redundancies, he didn't deny that.
PN809
So we say that the evidence that the action will continue without the intervention of this Commission is directly the evidence under cross-examination of Mr McConaghy. If your Honour finds that the process of reducing the workforce below 39 is industrial action, there is clear evidence that without the intervention of this Commission, that that process will continue and continue to an indefinite point. It is fair to say that we don't have a clear position about to what extent or to what - you know, what is the bottom to which they intend to reduce the workforce.
PN810
The evidence is a little unclear on this point, but it appears to be that they seek to reduce the workforce to somewhere in the mid twenties. The documentary evidence differs somewhat from Mr McConaghy's evidence, but nothing turns on the point. The issue is that the company will consider all its options to continue to reduce the workforce to a level somewhere in the mid twenties.
PN811
We say that what - the conduct we say is industrial action is clearly in relation to work that is regulated by the certified agreement and/or in the alternative that it is a matter which is in dispute between the parties. Despite Mr McConaghy's efforts to say that there was somehow no dispute, we say it is absolutely clear and should be absolutely clear to your Honour that there is a dispute about the manning levels at the Geelong terminal and that that in itself is sufficient to enliven the jurisdiction of this Commission notwithstanding the fact that the work is in any case regulated by a certified agreement.
PN812
That leads me, your Honour, to the most important question which is, is the conduct of the employer industrial action? We say two things. Firstly, that the actions of the employer in reducing and seeking to continue to reduce the workforce below 39 and to leave it below 39 is first of all a clear breach of the enterprise agreement on any proper construction of clause 2 of appendix B, but secondly, when properly analysed, that that constitutes industrial action by the employer.
PN813
In simple terms, the continuing to employ below 39 people is a breach of the agreement. The action of reducing the number below 39 and leaving it there is the industrial action. I think we accept, your Honour, that in and of itself a breach of an agreement isn't enough to make that industrial action, and I think my friend used the term, "in and of itself", and I believe that is the language that was used by his Honour SDP Watson in a case where the CFMEU brought a similar application. It was dismissed on the grounds that in that case it was simply a breach of an agreement. We say that it is more than that in this case because the continuing employment of less than 39 constitutes a restriction for the purposes of the definition of industrial action in section 4.
PN814
We say that both the decision to reduce the numbers and the decision to leave them below 39, and both of those decisions are made out by the evidence of Mr McConaghy as well as that of Mr Thow, are industrial action as they amount to a restriction on the work performed by the remaining employees. I put it to you this way, sir, that the enterprise agreement creates a situation where a full time permanent bulk grain worker is entitled to attend for work as part of a crew of 38 others performing the basket of work of bulk grain workers at the Geelong terminal. That is a term and condition of their employment in the same way that 10 sick days per annum is a term and condition of their employment, and the employer's failure to allow them to work in that manner constitutes a restriction on the performance of work.
PN815
Now, we submit that there is good authority for the proposition that restrictions on ability to work in accordance with the terms and conditions of the certified agreement can constitute industrial action. We further say that there is good authority for the proposition that terminations which are not permitted by a relevant industrial instrument can constitute industrial action. In doing so, I would take you to, your Honour, a decision of Commissioner Whelan.
PN816
THE DEPUTY PRESIDENT: I normally don't mark these sorts of documents.
PN817
MR LYONS: No. For the record, I might say that that decision is found in print Q4688, Australian Federation of Airline Pilots v Qantas. Now, we say that that decision is authority for four propositions. The first is that a breach of an agreement guaranteeing employment can constitute industrial action. The second, and this is contained at page 4 of the agreement, is that whether or not a decision may be commercially valid or defensible in its own right is not a relevant consideration where that decision breaches a specific term of the agreement.
PN818
Thirdly, that such actions can constitute the appropriate compelling reason for the intervention of the Commission in what might otherwise be a legitimate commercial decision of the employer. We put it to you this way, your Honour; in circumstances where the enterprise agreement did not mandate a fixed number of employees, the sort of considerations to which the respondent's evidence went about the competitive situation of the business as against its competitors, a general downturn in business would be extremely relevant to any decision to implement a process of redundancy, but in circumstances where the parties have in good faith made an agreement to fix the number of employees for the life of an agreement, those commercial aspects of the decision simply don't arise because the parties have an enforceable agreement that mandates that 39.
PN819
You will see at page 8 of that decision the Commissioner differentiates her decision from a decision of Commissioner Hodder where he found that a decision to have work performed by contractors did not constitute industrial action because it was done for legitimate commercial interests. The distinction we draw here, which is the same one we respectfully suggest the Commissioner drew, was that in that case and this, the enterprise agreement itself contained a specific term which required the continuing employment of a group of employees.
PN820
If I can take you to a second authority, your Honour, and this is a decision of Commissioner Merriman as he then was in National Union of Workers v Geoffrey Thompson Fruit Packing in print P8357. In this circumstance, your Honour, the case before the Commissioner was that an employer had refused to allow employees to attend for work unless they agreed to stop working under an award of the National Union of Workers and commenced work under an award of a different union. In that instance, the Commissioner found that that was a restriction on the performance of work as the employees were not able to perform work in accordance with the NUW Fruit Packing Award.
PN821
We say the same principle ought to apply to this case which is that - I am sorry, the same reasoning ought to apply to this case in that the restriction can be a refusal to allow performance of work in respect of part of an award as well as the entirety of an award. The analogy I draw, your Honour, is this: for example, employees who are subject to an award which contains a reasonable overtime clause who place on an overtime ban are taking industrial action regardless of the fact they are offering for work in compliance with all other terms and conditions of the relevant award.
PN822
We say the matter is no different. The employer is complying with all provisions of the agreement save and except for clause 4 and appendix B clause 2, but nevertheless it is honouring that agreement in the breach. So the logic that led Commissioner Merriman to find that a refusal to observe and allow work in respect of an award in toto should apply to refusal to allow performance of part of an award or part of an agreement.
PN823
If I can take your Honour to the terms of the 1998 agreement - I am sorry, the 2001 agreement, and to appendix B, clause 2. Obviously, your Honour, much turns on whether or not in this matter you accept the interpretation placed on the agreement by the union and by the evidence of Mr Thow. The evidence of Mr Thow, who is the only witness in these proceedings present at the time this matter was drafted, is that the first paragraph of clause 2 is designed - or was designed to protect the employees from the employer seeking to double-dip in relation to flexibilities; that is, to double-count them against redundancies negotiated to get to 39 and seeking to have those matters take up again.
PN824
It was his evidence that the remainder of the clause goes to a fixed, set in stone, not-to-be-touched-for-the-life-of-the-agreement manning level of 39. We say that that is absolutely on its face, for the interpretation that is placed on it by Mr McConaghy, and I think Mr Scully in the witness evidence, to have any legs the third clause of part 2 simply has to be given no work. The clause simply has to be read as if it doesn't exist, because the third clause gives a clear, unqualified statement that the level fo 39 will not only be maintained, but be replaced.
PN825
Your Honour will recall that in one of the attachments to Mr Thow's statement was the in-principle agreement for the 1998 document where words to that exact effect were included by the then owners of the company and put to the members for in-principle approval as an enterprise agreement. So we say that on basic principles of interpretation of an agreement, that your Honour should find that the third paragraph in particular of clause 2 of appendix B represents a prohibition on the company from permanently reducing the number of bulk grain workers below 39. When I say permanently reducing, I say that because we accept that there could be circumstances obviously either of natural attrition, terminations for - either summary or otherwise, which would clearly be lawful, provided the company then took steps to refill those positions.
PN826
In that respect, your Honour, the case before you differs from that before Commissioner Whelan. In that case, if you like, a named group of employees were guaranteed employment until they were 60 by the terms of an TAA enterprise agreement. In this circumstance, a fixed number of employees are guaranteed employment for the life of an agreement for a fixed series - or series of tasks, but we say the effect is the same.
PN827
We say that based on the normal principles of examination of the enterprise agreement that your Honour should give the clear meaning which appears in the words. The words itself that appear in the agreement are not ambiguous, they are all words of common usage, they don't appear to be words which cause any confusion or any kind of irrational or illogical outcome when given their normal meaning.
PN828
In addition to that your Honour has the direct evidence of Mr Thow who was one of the authors of the agreement about what the agreement means and what it was intended to do. The other thing your Honour has is the way in which that has been - those clauses have been implemented since at least 1998 which is the parties have observed those levels as if they were a fixed manning level. So your Honour has the clear meaning of the agreement, the evidence of the author, the evidence of the intention of the parties at the time and the evidence about the way the parties have implemented that clause since its original drafting in 1998.
PN829
And so we say that is enough to make out that the agreement requires the employment of 39 and on that basis the employer is in breach of the agreement. I might then say, your Honour, that it is open for your Honour to find that Graincorp in relation to the current dispute in relation to manning levels also understood that it was in breach of the agreement, and we say that on two bases. First of all, Mr Scully has given evidence of a meeting of the managers involved in the making of these decisions where, having read the agreement, they found the need to seek legal advice.
PN830
We say it is open for your Honour to draw the conclusion that that was because in the original instance they read it and gave it its clear and ordinary meaning which is that 39 is a mandated number of employees. That would be also because that is the way the agreement has been read, interpreted and conducted since 1998. But, further, your Honour has, at attachment 5 of Mr Thow's statement, the minutes of the enterprise bargaining negotiations in 2001 where your Honour will recall that the company did not seek the deletion of clause 2 but sought the deletion of all other references to staff levels.
PN831
Now, we say that is evidence that when the company viewed this matter in isolation of a direct desire and decision to reduce the number of employees it accepted that that paragraph constituted a prohibition on reduction below 39. That is why they sought to have it reduced because in the words of Mr McConaghy that was an inappropriate thing to have contained within an enterprise agreement. So when the company looked at this matter in isolation, by which I mean not in circumstances where they had directly made a decision to seek to reduce the workforce, they accepted the interpretation placed by the NUW.
PN832
So in summary, in respect of whether or not the matter is industrial action, we ask your Honour to come with us in characterising the process which has led to this point in the following way: first of all, that the agreement contains a floor of 39 employees, secondly, that the decision to permanently reduce below 39 was in breach of that EBA, that the unilateral action of the company to force change below 39 constitutes industrial action and that the result of that decision to release people for redundancy is that the work is being restricted in the sense that it is not being performed in accordance with the entire agreement.
PN833
THE DEPUTY PRESIDENT: Would you just like to elaborate on that a little bit more for me, Mr Lyons, just that last point.
PN834
MR LYONS: Yes. I think it is clearly the key point that we have, your Honour, and we put it this way. It is not for parties to pick and choose which bits of the agreement they choose to comply with. A party, when it reaches an enterprise agreement, ought be committed to observing all the terms and conditions of that agreement. It is on that basis that we say it is no less a restriction on the performance of work if a party refuses to work with part of an enterprise agreement as if it refuses to work in relation to the entire enterprise agreement or award, in the case of the fruit packing decision.
PN835
That is the analogy I drew with a reasonable overtime clause and an overtime ban, your Honour, is that if it were put that because we were largely complying with an enterprise agreement we weren't taking industrial action. If that was put in another context, my friend would rightly laugh at me. If, for example, it was the union taking unprotected industrial action and we said, well, we are complying with two-thirds of the clauses of the enterprise agreement, I am sure your Honour would have something to say about that and so would my friend.
PN836
We say the argument cuts both ways. The agreement, we say, creates an obligation on the employer to have the work of bulk grain workers done by 39. It then creates a right amongst those 39 to be part of a group of 39 performing that work and, I might say, that is irrespective of the volume of work that may come through the terminal. There is some evidence before your Honour that the volume of work fluctuates and I think from this and other matters, your Honour would be aware that grain is a seasonal industry and there is some variation in any case.
PN837
We say there is not enough before you to make a determination about whether or not there has been an ongoing reduction in the volumes through the Geelong Terminal but, in any case, we say you don't need to get to that point. The issue is the agreement requires the employer to have 39 and creates a right for the bulk grain workers to be part of a crew of 39.
PN838
THE DEPUTY PRESIDENT: Sorry, Mr - am I interrupting you?
PN839
MR LYONS: No.
PN840
THE DEPUTY PRESIDENT: As I understand what you are putting to me, anything less than 39, if I am part of a group of anything less than 39, that that would constitute a restriction on the work. Is that - - -
PN841
MR LYONS: Yes, because the work would not be being performed in accordance with the agreement. Perhaps another example closer to point even than the overtime example, your Honour, would be this. I am thinking of clauses which mandate, for example, that there will be a crew of 12 people provided for a public holiday. Those sorts of clauses are not uncommon, where employers negotiate minimum manning levels that will make themselves available. Now, if, for example, employees refused to make themselves available for that work as part of that group of 12, then that also would constitute a restriction.
PN842
It may also constitute a ban or limitation in another circumstance but it is certainly a restriction because work is not able to be performed in accordance with the agreement, which would allow performance of work on that day in accordance with the requirements of the employer. Your Honour, unless you have any questions about that element of it, I am not sure I can take that matter much further.
[3.00pm]
PN843
THE DEPUTY PRESIDENT: No, no, I think you have covered it adequately, thank you.
PN844
MR LYONS: Yes. And I had taken your Honour, in our earlier submissions, to the specific provisions of the definition in clause 4 on which we rely, and we adopt those submissions. Before I turn to the discretionary elements, your Honour, I did think it important that we address the proper nature of our application. I am aware that the Commission is oftentimes loath to intervene in decisions that might rightly be regarded as management prerogative or legitimate commercial decisions. This is not a matter where we complain of the - at least in this forum - of whether or not the decision was commercially valid, defensible or sustainable, but very much one where we rely on the terms in the agreement that were specifically reached.
PN845
So we did seek to stress to your Honour that the - we say you need not consider, in reaching your decision about whether or not we have enlivened your jurisdiction, whether or not there was any commercial validity to the decision made by Graincorp to seek to reduce its employees. Because you do not need to get that far; it is enough to consider the specific terms of the agreement. We say on that basis, your Honour, that your Honour would have discretion to make an order in the form sought. We would now seek to address you on the discretionary elements for the making of your - in doing so, your Honour, I would seek to address those matters which the Commission in published authorities has regarded as relevant to discretion.
PN846
I refer specifically to the matters set out in the Coal and Allied decision and by his Honour in Patrick's. I have those, but I am sure your Honour is well familiar with those. But I simply seek to address those on that basis of the published authorities. We firstly say, your Honour, that it goes to your discretion because an order is necessary to protect the integrity of the agreement that has been made between the parties. It is necessary because since at least 1998 the parties have included specific provisions about manning agreements, and have held to those agreements.
PN847
The agreement also contains a no extra claims clause. The union, as Mr Thow said, views those clauses extremely seriously and, as Mr Thow also said in his evidence, would inform members that that prohibits them from the making of additional claims. In this matter we seek only that the employer be held to a standard which this Commission would hold the union to, rightly, and to which the Commission would hold its own members. We note that industrial action that is not protected - and there can be no question that this is - is, we say, at least on a prima facie basis, illegitimate by virtue of the scheme of the Act. I refer to section 170MN.
PN848
We say that there is a direct public interest involved as well as a matter that goes to the objects of the Act, and that is this: that the Commission ought take action where appropriate to protect the integrity of agreements that are made before it. It ought also take actions that hold parties to commitments they make to each other and to their employees. We say that it is also very important to the integrity of the bargaining process, your Honour, that where parties change their mind about concessions that they made in negotiation processes, they do not seek to agitate them during the nominal life of agreements.
PN849
And I have no doubt, despite the answer of Mr McConaghy, that were the union to take industrial action in support of the wage increase not countenanced by the agreement, my friend would be here complaining long and loud to your Honour about that conduct, on the basis of it being unprotected action, on the basis of it being in breach of the no extra claims clause. We invite your Honour to find that Mr McConaghy's refusal to come to grips with the no extra claims clause was really an exercise in sophistry. The company knew what the no extra claims clause meant. It is a term and a provision in common industrial usage. Mr McConaghy is an experienced industrial practitioner on his own evidence.
PN850
It means what it says. It means - and perhaps it is worth actually quoting the provision, your Honour. It says:
PN851
During the life of the agreement, there shall be no extra claims made by either party in relation to any matters dealt with in this agreement.
PN852
Now, first of all, the matter is clearly dealt with in the agreement. It is clearly an extra claim, and it ought be recognised as an extra claim because it was an original claim in the employer's log for negotiation of the 2001 agreement. And that is contained within the attachment that is the minutes of the negotiations of the 2001 agreement. It was the claims they dropped off, they resiled from, they, despite their somewhat fervent commitment to a view that manning levels are inappropriate to be contained in the agreement, in the end they agreed to the union's proposal of a roll-over, and appendix B was included without any variation whatever.
PN853
Now, it, we say, is important that, where parties sign agreements, indicate to other parties that they have resiled from claims, that they be held to that. And I refer your Honour to the objects of the Act and specifically section 3 clause E, where it is described as an object of the Act, and I quote:
PN854
Providing a framework of rights and responsibilities for employers and employees and their organisations which supports fair and effective agreement making and ensures that they abide by awards and agreements applying to them.
PN855
It is that object of the Act which we say goes squarely to the conduct of the employer in this matter, and squarely to the exercise of your discretion. It clearly is in the public interest that parties abide by terms of agreements they reach. Otherwise there can be, as much as anything, no faith in the agreement making process in and of itself. There can be, we submit, no greater threat to the system of enterprise bargaining than companies knowingly signing agreements containing no disadvantage clauses resiling from claims and reactivating them within 12 months of the original agreement being signed; in fact within six.
PN856
It is a point we have not talked upon, your Honour, but this agreement was signed by the company at the end of July 2001 and certified some time later. It is not as if this is a three-year agreement and we are in the third year and things have changed. These are matters which the company knew about, walked away from, were unprepared to negotiate with the union, for whatever reason, and now they want a second go. And it is that point, sir, which is the second thing which we say goes to the exercise of your discretion which is the conduct of the parties.
PN857
We say it is well established that the Commission can have regard to the conduct of the parties in relation to a dispute when considering whether or not to make an order. We say that the Commission should have regard to three things in relation to Graincorp's behaviour. The first is that they made a claim to the effect of what they want to do now, less than 12 months ago; that they resiled from that claim. They now seek to reactivate it. And finally, that they have refused to submit to the disputes resolution procedure contained in the agreement.
PN858
Your Honour will recall that the evidence says that Mr Thow proposed that as a way of remedying the matter. Mr McConaghy rejected that on a basis which I am not clear about, which is that in some technical sense the parties were not in dispute. Now, as I have said, your Honour, it is clear, we say, on the evidence that the parties are in dispute about this issue. So there is almost, your Honour, two levels of non compliance with the agreement. The first is the action itself of reducing below 39. The second is a failure to comply with the disputes resolution procedure, which would have been the appropriate way of dealing with the matter and which is what was proposed by the NUW.
PN859
However, in circumstances where the company said it did not see the disputes resolution procedure as applying, the union had to look for what would be its other options, and hence we came here. Your Honour, I might say something just very briefly about the terms of the order we seek, in conclusion. We seek that an order be made for the life of the agreement, which we see as appropriate given the current circumstances. And we seek that that order be directed against the taking of action to employ less than 39, including but not limited to redundancy processes, howsoever described. In the language I have used in paragraph C of the draft order, I have attempted to make out as clearly as possible what would be defined by industrial action in terms of the order.
PN860
There have not been, I think it is fair to say, precedents that go exactly to that point where I have had the benefit of being able to see orders issued by other members of the Commission. However, we say the language would be appropriate in restraining the conduct we complain of, and only that conduct. And we also say that the term of an order which would go to the length of the enterprise agreement is appropriate in the circumstances. Your Honour, unless you have any questions, I would leave the matter there.
PN861
THE DEPUTY PRESIDENT: No, that is fine, thank you, Mr Lyons.
PN862
MR LYONS: If the Commission pleases.
PN863
THE DEPUTY PRESIDENT: Mr Johns.
PN864
MR JOHNS: Your Honour, I am ready to proceed, but I am wondering if I might just crave the Commission's indulgence just for a short moment.
PN865
THE DEPUTY PRESIDENT: Sure, did you want an adjournment, Mr Johns, for 10 or 15 minutes?
PN866
MR JOHNS: Five.
PN867
THE DEPUTY PRESIDENT: Have you any objection to that, Mr Lyons?
PN868
MR LYONS: No.
PN869
THE DEPUTY PRESIDENT: I will adjourn until 25 minutes past 3.
SHORT ADJOURNMENT [3.11pm]
RESUMED [3.24pm]
PN870
THE DEPUTY PRESIDENT: Yes, Mr Johns.
PN871
MR JOHNS: Thank you, your Honour. Your Honour, in my submission and with respect to my friend there is nothing in the submission from the NUW just now which ought to convince the Commission that this matter is about anything other than whether or not there is a breach of a certified agreement. But Mr Lyons said the order is necessary to protect the integrity of the agreement, and that is the principal, primary and, in my submission, only real concern of the NUW in this matter and at its highest that is as far as the conduct of Graincorp can be put.
PN872
Now if I might start by quickly disposing of the two authorities referred to by my friend and the first is the Australian Airline Flight Engineers Association matter, the Commissioner Whelan decision. Your Honour, in my submission that case is not relevant in the present circumstances. It dealt with a compulsory redundancy and in those circumstances it was found to be industrial action and quite rightly because when there is a compulsory redundancy the employees offer themselves up for work and the employer places a ban, limitation or restriction on that offering up for work by making them redundant.
PN873
So it is properly characterised in the definition of section 4 as industrial action. So that decision of Commissioner Whelan is not relevant in the present circumstances. In terms of the decision of Commissioner Merriman there was in that decision again a restriction on the employees accepting or offering for work. That is not the circumstance in the present case. There is no restriction on any of the employees offering for work. If any of the 36 who are presently there offer themselves for work the evidence is that Graincorp will accept it. No ban, no limitation, no restriction on the offering of work and simply that decision is not relevant.
PN874
Your Honour, if I might hand up to you an outline of submissions that I have prepared. I don't plan to go through it word for word but if I might start with the three what I might call jurisdictional conditions that need to be met in order for the Commission to exercise its jurisdiction in this matter. First, is that there must be industrial action and I will come back to that. The second is that it must be in relation to a certified agreement. Your Honour, I concede that there is a relevant certified agreement in relation to these matters and the third is in relation to whether or not the NUW has standing and I am willing - if this conduct of Graincorp is characterised as industrial action, I am willing to concede that the union has standing.
PN875
So the only real issue before you is whether or not the conduct of Graincorp is industrial action. In terms of whether or not the conduct is happening, threatened, impending or probable the conduct of offering voluntary redundancies is happening although of course the company is abiding by the undertakings that it gave not to process any of those until after the hearing and determination of these matters. If there is no 127 order made against them it will accept voluntary redundancies and on my instructions there are people waiting in the wings ready to make that application.
PN876
However it is not possible in my submission to characterise that conduct as industrial action under the Workplace Relations Act. Now my friend says that he relies upon paragraph (b) and paragraph (c). Specifically he says there is a restriction on the performance of work in that requiring the work to be performed by less employees there is a restriction. With respect to my friend, your Honour, that is a nonsensical argument. There is no restriction on the performance of work at all. In the context of considering the definition of industrial action the Commission is required to look at what is the conduct vis-a-vis employer and employee.
PN877
If an employee goes on strike the employee is putting a restriction on the performance of work of the employer and that is industrial action. If an employer puts a restriction on the performance of work of an employee that is industrial action. There is no evidence that a reduction in numbers at Graincorp will result in a restriction on the performance of work. All the employees will continue to perform work. There will be no restriction on their work, no reduction on their work, no contraction in their work. In fact it might even result in more work for some of them.
PN878
So to suggest that the proper construction of restriction is the performance of work by less employees is, in my submission, a misunderstanding of the definition within the Act. There must be, in order for there to be industrial action, a restriction on the performance of work of the employees and there is no evidence before the Commission that if employees accept voluntary redundancies there will be a restriction on the performance of work of any employees. That ground is simply not made out. Now as I said in my opening the onus in this matter squarely falls on the NUW and in my submission it is not satisfied, that onus.
PN879
The proper construction of section 4 of the Act has, what I have said in my written submissions, four key things: performance of work, acceptance of work, the offering of work and the failure or refusal to attend work. Now having regard to the fact that the union has restricted itself to (n) and (c) in section 4 it constrains itself to having to prove that there is a limitation or restriction in the performance of work, the acceptance of work or the offering for work. Now in relation to those three possibilities the Commission must automatically discard the possibility that there is a restriction on the offering for work.
PN880
The long line of authorities in this area is that the phrase "offering for work" is a reference to conduct of employees, not a reference to the conduct of employers and I make reference to the relevant authorities in footnote 5 of the submissions and it is picked up most recently in the Ansett Pilots decision, another decision of Commissioner Whelan, print Q2953, and if I can hand up a copy of that to your Honour. At page 4 of the copy that I have handed up, about three-quarters of the way down the page there is a discussion about this matter and a reference to the authorities in the area and Commissioner Whelan says there:
PN881
The applicant has relied upon part C of the definition of industrial action to found a claim that the respondent is engaging in industrial action within the meaning of the Act. This issue is dealt with by Commissioner Holmes in Department of Defence v AMWU. Mr Hartigan firstly submitted that Ansett as a legal entity does not perform work. Secondly, on the basis of the Department of Defence case the company cannot offer for work.
PN882
And then you will see the rest of that extract there Commissioner Whelan accepts the long line of authority which is that offering for work in that definition refers to the conduct of the employees, not the employer. That theme in section 4 leaves the NUW with only two possibilities to characterise the conduct: a restriction on the performance of work or a restriction on the acceptance of work, and in my submission there is no evidence that the company is engaging in either of those two prohibited forms of industrial action.
[3.35pm]
PN883
There are some authorities in this area, sir, which I want to take you to and where these matters have been dealt with. And the first one is a decision of Senior Deputy President Watson, print R3466. This involved an application by the CFMEU. There was an alleged industrial action which was the refusal of the employer to adhere to the terms of the redundancy agreement. And what Senior Deputy President Watson held was that there needs to be an identifiable restriction on the performance of working in accordance with the certified agreement. That is what needs to be established in this matter in order for you to find that you have jurisdiction. And that simply has not been satisfied.
PN884
If I can take you to page 9 in the copy I have handed up, and there is a discussion in paragraph 19 towards the bottom that goes to the issue that - it is about halfway through paragraph 19:
PN885
The companies are correct to the extent that a pure breach of an award or agreement would not be open to injunctive relief having regard to section 178.
PN886
I mean, that is something I will return to in a moment. Then over the page, the concession there that we make, and we agree that industrial action is not limited to stand down and lock-out by the employer. Then over on page 11 Senior Deputy President Watson says:
PN887
I am not satisfied that identifiable restriction on the performance of work in accordance with the certified agreement has been made out in these circumstances. Employees have the option of a redundancy package or transfer as agreed by the parties consistent with clause 8 of the certified agreement. The exercising of those options does not seem to me to involve a ban, limitation or restriction on the performance of work, or an acceptance or offering for work in accordance with the terms and conditions prescribed in the certified agreement. The issue between the parties is whether an employee opting for transfer is entitled to exercise the general option in the certified agreement. If the CFMEU position in that regard is correct, any failure at issue to apply the general option is amenable to action under section 178 of the Act.
PN888
Now, in my submission, sir, the facts in these case are directly analogous to what we have in the present case. If employees accept the voluntary redundancy, there is no industrial action being engaged in by Graincorp. And in my submission, that must be the finding in this case to make it consistent with the finding of Senior Deputy President in this matter. The second decision that I want to take your Honour to is the Australian Workers Union v Co-operative Bulk Handling Ltd, print 907502.
PN889
This matter involved an application by the AMWU in respect of voluntary separation packages offered to employees as an alternative to reclassification of the position. And again the decision in this matter is that that does not constitute industrial action within the definition of the Act. So, your Honour, having regard to both of those decisions it is simply, in my submission, not open to the Commission to find that the offer of voluntary redundancies by Graincorp constitutes industrial action. It does not fit squarely within the definition of industrial action within section 4 no matter how you seek to construct it. And the attempts by the union to, in a sense, dress-up the restriction on the performance of work as requiring the work to be performed by less employees, does not fit the statutory construction in section 4 in any sense, in my submission.
PN890
That being the case there can be no jurisdiction in the Commission to issue the 127 order. In any case, if there was industrial action within the definition provided for in section 4, there is an out for Graincorp. And that is to be found in subsection (f) in the definition in section 4. Because if there is industrial action, it does not include action by an employer that has authorised or agreed to by on behalf of employees. So in circumstances where Graincorp offers voluntary redundancies, and it is agreed to by the employees, by virtue of them accepting it, there can be no industrial action under the definition in the Act. And the absence of industrial action means that the Commission does not have jurisdiction in these proceedings.
PN891
In these proceedings there is no evidence of any attempt by Graincorp to restrict the performance of work in accordance with the certified agreement. There is no evidence of a compulsory redundancy. Mr Lyons asked Mr McConaghy about what would happen if the company did not get enough acceptances, and the evidence is the company has not made any decision about what it will do in those circumstances. And it is long bow in the extreme to try and characterise that answer as constituting industrial action which is either happening, probable or impending or threatened. There is simply no evidence that compulsory redundancies are happening, are threatened, are impending, or probable.
PN892
On the evidence of Mr McConaghy the company has not turned its mind to that issue. It is confident that there are enough people waiting in the wings to take voluntary redundancies to satisfy it's decision to move the numbers of workers from 36 down to 31, at least, in the interim period. And as I have already said, the employees have a choice as to whether or not they accept the voluntary redundancies. We are not compelling them to do so, and in fact, it seems the only thing that is stopping a number of employees from accepting it is the undertaking given by the company that it will not process them at this stage.
PN893
Now, your Honour, if you are against me on the issue of industrial action, if you find that there is industrial action being engaged in by the company, and I expressly deny that in my submissions, then it does not automatically follow that you ought to issue the 127 order. And that is because, as is conceded by my friend, the exercise of that discretion is a discretion at large. And there are a number of matters which you should have regard to before exercise that discretion.
PN894
And one of them is the objects of the Act, and object 3(a) is that it is to encourage international competitiveness through higher productivity and a flexible labour market. And that is exactly what Graincorp is seeking to do in this matter. It wants to make itself more competitive, and that is the uncontroverted evidence that the basis for these voluntary redundancies is to make itself more competitive. No suggestion that it is taking advantage of flexible manning levels, or anything like that, that is the uncontroverted evidence, it is about the competitiveness of this company.
PN895
The other matters which, in my submission, the Commission is to have regard to is whether or not if the conduct is characterised as industrial action, whether or not it is then properly characterised as illegitimate to such a degree that it warrants the making of a 127 order. And in my submission it is not. The union concedes that the breach of a certified agreement in and of itself does not justify the making of a 127 order. And in circumstances such as the present where, in my submission, what the union is trying to do is obtain through a 127 order that which it cannot obtain through proceedings in the Federal Court, the Commission should decline to exercise its jurisdiction.
PN896
What the union wants, in effect, and this was the evidence of Mr Thow, he said, we have made a decision to go this path, to seek effectively interlocutory relief. They want an injunction to stop a breach of the certified agreement. And that is not something that the union can get under the Act in the Federal Court or anywhere else. And in my submission, it undermines the operation of section 178 for the Commission to grant an injunction in those circumstances, an interlocutory relief, that is what Mr Thow said he wants, when the Federal Court could not issue such an injunction. And in the exercise of the discretion at large that, in my submission, ought to weigh heavily on the Commission.
[3.45pm]
PN897
The conduct of the parties is an important consideration in the exercise of the discretion at large. Now, this brings us squarely to the issue of whether or not Graincorp is in fact breaching the certified agreement, and under par 6 of the submissions I have handed up I deal with how the Commission ought properly construe part 2 of appendix B. The union asserts that that third paragraph mandates that there should be no reduction below 39. In my submission, that construction of the third paragraph cannot be held to be correct, and that is because you must read all of part in context and with reference to the other essential elements of it.
PN898
Paragraph 1 has a causal link between redundancies and manning flexibilities. Paragraph 2 has a causal link between manning levels - sorry, manning flexibilities and redundancies. That causal link doesn't appear in paragraph 3. However, in my submission it must be interpreted to read that where numbers fall below 39 because of manning flexibilities the numbers must be increased, otherwise that third paragraph is inconsistent with and in fact goes against the previous two paragraphs, and that cannot have been the objective intention of the parties, to have one part of that part 2 of appendix B inconsistent with the other two subparagraphs.
PN899
They must be read as a whole, and we must give the phrases which refer to a causal link some work to do. The parties put them in there for a specific purpose, and that was a - - -
PN900
THE DEPUTY PRESIDENT: Sorry, Mr Johns, you have lost me a bit there. Would you just like to run that by me again, please.
PN901
MR JOHNS: Yes. Do you have appendix B in front of you, your Honour.
PN902
THE DEPUTY PRESIDENT: Yes, I do.
PN903
MR JOHNS: Clause 1 deals with what I call the causal link. There will not be redundancies - sorry:
PN904
Graincorp gives an undertaking that any flexibility demonstrated during the life of the agreement will not be used as a basis for redundancies.
PN905
So there is the causal link between flexibilities and redundancies. And the next paragraph:
PN906
No redundancies will be sought by Graincorp as a result of the above flexibility in manning and work practices.
PN907
Again, causal link between flexibility and redundancies. We then come to the third paragraph which says:
PN908
This number of fulltime employees, 39, is to be maintained for the life of the agreement meaning that replacements will be sought when numbers fall below this level.
PN909
There is no express causal link in that clause. Now, the union would have you decide that that mandates 39 for the life of the agreement, and in my submission, that construction of that paragraph is inconsistent with the previous two paragraphs which require a causal or provide for a causal link. Now, where the previous two paragraphs provide for a causal link, those words were chosen expressly by the parties, and they must be given some work to do. If you accept the interpretation proffered by the union, the words in the previous two paragraphs which provide for a causal link are rendered redundant themselves.
PN910
And so that must mean, in my submission, that paragraph 3 must be interpreted such that there is a causal link. That is the only construction that can be made of that clause, in my submission, your Honour. I am happy to - - -
PN911
THE DEPUTY PRESIDENT: That is sufficient, Mr Johns. I understand what you are saying.
PN912
MR JOHNS: And the evidence before the Commission is that the reason for the redundancies in the present circumstances is not because of the flexibility, and the union don't assert that it is. Now, Mr Thow gave some evidence about what his understanding of the clause was when it was negotiated the first time around, with the previous employer. Now, that interpretation cannot be pegged, if I can put it that way, on to Graincorp. They weren't party to the agreement at that time, and they didn't have discussions about it at that time, and what was in the mind of the union or the previous owner at that time cannot be ascribed to Graincorp.
PN913
We then come to the rollover situation, and Mr Lyons asked a question of Mr McConaghy, and he said:
PN914
In these negotiations did you say anything to the union that would make them think that their interpretation of the intention should be different or words to that effect?
PN915
And, Mr McConaghy said, no. There is actually no evidence that Mr Thow or anyone from the NUW explained to the company what they meant by that course. Now, the union had in their mind what they thought the intention of it was. The company had in their mind what they thought the intention of it was, and there is no evidence that there was a meeting of minds on that point. The reality is there was no discussion about it because there was a decision to roll over. And the company wasn't troubled by the decision to roll over, because in its mind it was only restricted in offering redundancies where it sought to do so because of flexibilities.
PN916
On that basis there is no misleading of the union by the company. The fact of the matter is that as a result of the decision to roll over neither of the parties properly turned their mind to or even discussed what that clause meant, and after the rollover both the parties walked away with different views of what it meant. And both of the parties are entitled, in my submission, to their different views, but what it means is that Graincorp is not in breach of that clause when it seeks to make voluntary redundancies because of the competitive pressures that it is experiencing.
PN917
It hasn't engaged in any misleading conduct in relation to the union. It hasn't held out to the union that there is a particular interpretation of that clause and then sought to resile from it. There is simply no evidence that there was any discussion about it, and that is unfortunate. Had there been some at the time of the rollover we might not be here, because the union could have clarified that the company had in its mind that it could make redundancies for other reasons, and this clause doesn't say, particularly in paragraph 2 and 3, redundancies cannot occur.
PN918
Now, that is what the union would have you interpret that certified agreement to say that it bands all redundancies below 39, and it is simply not what the words say, and it can't have been what was the intention of the parties objectively speaking. The other matter in terms of the conduct of the parties that is relevant in my submission is that the union, the NUW, entered into negotiations with Graincorp and put to it a proposal that the numbers could be reduced to 31 if the company agreed to a list of demands.
PN919
That is evidence in my submission not of the union insisting upon 39 always being the number. Its complaint is that the reduction from 39 to 31 isn't happening in accordance with its agenda. And if the company had agreed to all of the matters put by the union in attachment 7 to Mr Thow's affidavit, then the union quite happily would have lived with 31.
PN920
THE DEPUTY PRESIDENT: Well, with respect, Mr Johns, that is drawing a bit of a long bow, isn't it, on the evidence?
PN921
MR JOHNS: There is in my submission, your Honour, no possibility, there is no suggestion that Mr Thow was off acting on a frolic of his own. He conceded that he met with and discussed this matter with the delegates prior to putting the proposal to the company, that the delegates had had discussions with the shop floor prior to the position going to the company, and following those discussions they come to a view where they are content to put to the company, if you agree to X, Y, and Z, we will agree to 31.
PN922
So, the complaint isn't about 39; it is about the fact that the company didn't make the concessions to X, Y, and Z.
PN923
THE DEPUTY PRESIDENT: Yes, but I think the evidence was that they would be prepared to put something to the membership, not that they would agree, at least as I heard the evidence.
PN924
MR JOHNS: I accept that there is no evidence of the shop floor would have necessarily voted for that. What I am saying to you in my submissions, your Honour, is that the dispute from the union's perspective is not about 39 versus 31, but about the fact that they didn't get what they wanted. They didn't get the price that they put to Graincorp for reducing the numbers from 39 to 31. Now, in circumstances where the union is willing to put that to the company, the suggestion that that reduction in the numbers has some effect on the performance of work is nonsense. The union was willing to put to the company a position of 31 employees and it did so because, in its view, that was something that was achievable and something that would not affect the safe performance of work at the terminal.
PN925
So any suggestion that the reduction from 39 is a restriction on the performance of work just doesn't see the light of day. The evidence is, in any case, that on Wednesdays and Fridays the maximum number of employees performing at the terminal is 16. Again, that fact speaks against the fact that the union asserts that any reduction from 39 affects the performance of work at the terminal. The fact that the union recognises that there is a need to reduce the numbers and that it can live with something less than 39 is evidence of the fact that what the company is doing is properly in response to competitive pressures and not industrial action.
PN926
The other two matters that I deal with in the submissions, your Honour, are the significant impact on the employer and we say that if the company is not allowed to proceed with the voluntary redundancies, that will have an impact upon it. The evidence of Mr Scully was that they are overstaffed at present, particularly on Tuesdays, Wednesdays and Thursdays, when the full complement is there.
PN927
The final matter in the submissions that I go to is the question of the draft order and if the employers is against us on the issue of industrial action and against us on the exercise of the discretion and minded to make an order, looking at the order, what is clear is that it is an application to injunct the company from breaching a certified agreement. That is the proper way to characterise the order as it is presently drafted and that is not, in my submission, a proper course or proper approach for this Commission.
PN928
Further, in relation to the elements under subparagraph (c), particularly (ii), the restriction on selecting via any process employees for redundancy, the company isn't selecting people, in a sense. It is offering redundancies to people and people are at liberty to accept them, subject to the skills base issue. The word "selecting" there, in my submission, goes to the concept of a compulsory redundancy and there is simply no evidence that that is happening, threatened, impending or probable and that particular element of the order ought properly not be granted.
PN929
Sir, subject to any questions that you might have, they are the submissions of Graincorp. Clearly, in our view, the jurisdictional issue is not made out. There is no industrial action and on the authorities and on the previous decisions of this Commission, the offering of voluntary redundancies cannot characterise industrial action. That is the only evidence that you have, that there is an offer of voluntary redundancies. If the Commission pleases.
PN930
THE DEPUTY PRESIDENT: Thank you, Mr Johns. Mr Lyons.
PN931
MR LYONS: Your Honour, we do have a couple of matters. The first is we take issue with a number of things that my friend said but first of all, in relation to the definition of industrial action, when your Honour was taken to the definition contained in section 4 of the Act by my friend, particularly clause (b), he pointedly stopped his quote before the words which are critical to the union's application, and that is where it says:
PN932
...a ban, limitation, restriction on the performance of work or the acceptance of or offering of work in accordance with the terms and conditions prescribed by an award or an order of the Commission or a certified agreement.
PN933
We say that the issue before you, your Honour, is squarely whether or not they - that the action constitutes a restriction on performance of work in accordance with the terms and conditions prescribed, relevantly, by a certified agreement. So I think we accept that when the point is put without the second limb of that definition, when it is not put in the context of that restriction not being in accordance with the terms and conditions prescribed by a certified agreement, much of the union's claim loses its punch. But when the definition is considered as a whole, with that phrase I have drawn your attention to, we say that there is good grounds for you to find that the action falls within that definition. Beyond that, on that issue, we rely on our earlier submissions.
PN934
Your Honour, my friend has sought to make great play of the fact that to this point the redundancies processed have been voluntary. We say the issue of whether they are compulsory or voluntary is irrelevant for the determination of this matter and we say that the authorities would bear that out. As your Honour would be aware, the authorities you have been taken to have all turned specifically on the terms of the industrial instruments which regulated the employment, whether or not they allowed for compulsory redundancy, whether or not they allowed for volunteers and transfers.
PN935
So it is true that there is no authority that deals with a voluntary redundancy in circumstances where there is a mandated level of employment but we say none of the authorities that you have been taken to are directly on point here on the facts because the terms and conditions of the industrial instruments are different. The matter before your Honour is unique in terms of the authorities that have been raised, because none of those agreements, or awards, in many cases, contained what I might term fixed manning levels and in each case you will find that his Honour Senior Deputy President O'Callaghan and the other members of the Commission have turned their minds very directly to the specific terms of the agreement, which is why we encourage you to do that.
PN936
My friend then raised an issue that, in any case, the action couldn't be industrial action because it was caught by paragraph (f) of the definition of industrial action, which is that the employees consent. Your Honour, I would have to concede that in respect of the two employees who have been released, it is not industrial action. Our claim of industrial action is that it is against the 36 remaining employees, who have not consented to anything of the sort. So to the extent consent arises there is none, and in any case our claim that it is industrial action is directed against the remaining employees, not those who have been released. And that is consistent, sir, with my construction of the agreement which is that it protects the group as a whole rather than named individuals.
PN937
My friend then made some great play to the fact that there is some authority for the proposition that an order in the form we had sought would not issue, certainly on an interlocutory basis from the Court. As is evidence from Mr Thow the union has sought to avail itself of what, I think, the Court has described as the merits based process which this Commission presents for parties when faced with industrial action. And we have done that. And frankly whether or not an order of similar or different form would be available elsewhere that may go to the same conduct is simply irrelevant.
PN938
The fact is that if your Honour is minded to find that an order of the form can issue, whether or not the union could have sought, failed or otherwise, to gain an equivalent order in another place, is simply irrelevant. We might say also that nothing can be drawn from Mr Thow's characterisation of the order we seek as being interlocutory. I think that it is well established that section 127 orders in all their form have some injunctive effect in that they do have the effect of rendering certain conduct unlawful.
[4.05pm]
PN939
Now if parties wish to breach those it is true the enforcement mechanism is in another place in terms of the exercise of judicial power but nevertheless the effect of them is to create a situation where a breach of that would be unlawful and so we say in that sense Mr Thow's characterisation of the matter is, as interlocutory, can go no further than that. Your Honour, I think it is always difficult when a matter comes before the Commission that involves the giving of evidence about what were without prejudice discussions between parties and it is always, if I might say, a little unfortunate when that happens as it can have the effect of meaning parties are less likely to negotiate in a free and open manner.
PN940
We say that no prejudice at all should be drawn to the union's position by their willingness to deal fairly and squarely with an issue raised by an employer of its members. The suggestion by my friend that somehow, oh, the union was happy to agree to all of this so what are they complaining about, we say is an appalling submission, in our view, because what it suggests is that if a party is to engage in without prejudice discussions in good faith with an issue brought to the table by the other it can then be held against them in the event those negotiations fail.
PN941
I draw you in particular and I invite you, sir, with the transcript to review this. I put to Mr Thow why the union did not simply flatly reject the Graincorp proposal and his reply was that it was a matter of trying to ensure a good relationship with the employer as a matter of good industrial practice, good industrial relations practice, that a claim of another party was not simply rejected out of hand. What Mr Johns invites you to do is because the union engaged in that good, we say, honest and quite proper practice that we now suffer prejudice as a result and we invite you to reject that in the strongest terms.
PN942
The last thing - I am sorry, your Honour, two more matters. The first is some play was made of the use of the term "select" in the draft order. We say select is an appropriate time both for as the evidence before you is that there is some consideration at least been given to compulsory redundancies if the volunteer do not meet the level and in any case the company has indicated they are not simply taking whoever volunteers, they are still engaging in some form of selection process based on the skills assessment. So the use of the term select is, we say, quite appropriate.
PN943
Finally, sir, I think it is important that I return to proper construction of clause 2 of appendix B. What my friend attempted to do in the submission he put to you goes against a number of pieces of direct evidence. The first is the evidence-in-chief of Mr Thow and the cross-examination about what the meaning of that clause was. In addition to that we have the document that is attachment 1 to his statement which was the original draft of the terms and conditions of employment, the in principle offer of the former employer which is now this employer which is attachment 2 which specifically says that the terms - the number of 39 will be maintained for the life of the agreement, but we also have it from their own mouth, that is Graincorp's mouth, your Honour, and we have that in attachment 4 to Mr Thow's statement which is the minutes of that discussion where clearly in their attempt to remove that section they will invite you to draw the conclusion they accepted the interpretation.
PN944
We also have Mr McConaghy's evidence under cross-examination that he accepts that at all times the union has sought to maintain the level of 39. That was his evidence under cross-examination. Finally, sir, we say this, the proper construction of clause 2 of appendix B is the first paragraph deals specifically with labour flexibilities not being double-counted as Mr Thow has explained, paragraph 2 deals with the circumstances under which the number is reduced to 39 by the operation of capital improvement and paragraph 3 represents the general prohibition on reduction below 39. We say that is the proper construction of that, not that which was put to you by my friend. If the Commission pleases.
PN945
THE DEPUTY PRESIDENT: Thanks, Mr Lyons.
PN946
MR JOHNS: Your Honour, there is just one matter, I don't know whether it is your practice to mark the outline of submissions that I handed up?
PN947
THE DEPUTY PRESIDENT: I didn't - you didn't seek to tender it, Mr Johns, you simply handed it up at that point in time. Did you wish to tender it formally?
PN948
MR JOHNS: Yes, if I could, sir.
PN949
THE DEPUTY PRESIDENT: Yes. You have no objection to that, Mr Lyons?
PN950
PN951
THE DEPUTY PRESIDENT: I intend to adjourn until 11.00 am tomorrow morning at which time I will give a decision in this matter.
ADJOURNED INDEFINITELY [4.10pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
ANTONY CHARLES THOW, AFFIRMED PN94
EXAMINATION-IN-CHIEF BY MR LYONS PN94
EXHIBIT #A1 HAND WRITTEN NOTES FROM MR THOW PN110
EXHIBIT #A2 WITNESS STATEMENT OF ANTONY THOW PN116
CROSS-EXAMINATION BY MR JOHNS PN275
RE-EXAMINATION BY MR LYONS PN450
WITNESS WITHDREW PN457
PAUL ROBERT McCONAGHY, SWORN PN469
EXAMINATION-IN-CHIEF BY MR JOHNS PN469
EXHIBIT #R1 STATEMENT OF PAUL ROBERT McCONAGHY PN482
CROSS-EXAMINATION BY MR LYONS PN502
WITNESS WITHDREW PN676
KENNETH PETER SCULLY, SWORN PN679
EXAMINATION-IN-CHIEF BY MR JOHNS PN679
EXHIBIT #R2 STATEMENT OF KENNETH PETER SCULLY PN688
CROSS-EXAMINATION BY MR LYONS PN693
RE-EXAMINATION BY MR JOHNS PN797
WITNESS WITHDREW PN804
EXHIBIT #R3 OUTLINE OF SUBMISSIONS OF MR JOHNS PN951
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