C2002/4825, Transcript of Proceedings [2002] AIRCTrans 4159 (22 October 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS

O/N VT309
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

C2002/4825
C2002/4838

APPLICATIONS FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the
Act by Carlton and United Breweries Limited
for an order to stop or prevent industrial
action

Application under section 127(2) of the
Act by the Australian Liquor, Hospitality and
Miscellaneous Workers Union for an order to stop
or prevent industrial action

MELBOURNE

11.00 AM, TUESDAY, 8 OCTOBER 2002

Continued from 2.10.02

PN312

THE SENIOR DEPUTY PRESIDENT: Are there any variations to appearances?

PN313

MR D. LEYDON: Yes, your Honour, I appear for the Australian Services Union.

PN314

MR HINKLEY: If the Commission pleases, I think it might be helpful if we give a report back as to what has happened, your Honour.

PN315

THE SENIOR DEPUTY PRESIDENT: Yes, indeed.

PN316

MR HINKLEY: Your Honour will recall that there was an arrangement made in the form of an agreement when the matter was last before you and I think that was marked, as I am told, CUB1.

PN317

THE SENIOR DEPUTY PRESIDENT: Yes, that is correct.

PN318

MR HINKLEY: Yes, your Honour. The consequence of that and compliant with it, there have been a number of meetings of the relevant employees. The company very helpfully enabled those to be conducted as paid meetings. It might be helpful to your Honour to be told that there were some three of them all together and the first of them was held yesterday at 5 am. It continued through until 6.30. The second was held at 1 pm and it continued through until 2.15, and the third was held at 2.30 and that continued through until 3.20. And there was a fourth one which I have here, but I forgot to number, which was held last evening between 7.20 and 8.20.

PN319

I am told, your Honour, that they of course were meetings of different groups of men - employees I should say. At each one of them the recommendation in conformity with the agreement reached with the Commission's assistance, a recommendation was put to them, and if I can just refer to it as being exhibited to the witness statement of Mr Fountain, which we forwarded to the Commission yesterday, and it is exhibited, your Honour, as exhibit DF7, and of course at the relevant time Mr Fountain will attest to his statement. If it is convenient, your Honour, I suggest it might be able to be read into and incorporated in whole into transcript and that I would read it even more slowly than the little ones do, if that is a convenient course of the Commission.

PN320

THE SENIOR DEPUTY PRESIDENT: It is not very long is it?

PN321

MR HINKLEY: No.

PN322

THE SENIOR DEPUTY PRESIDENT: No. Very well.

PN323

MR HINKLEY: Yes. DF7 to Mr Fountain's witness statement reads as follows:

PN324

Resolution: This meeting of CUB LHMU Packaging and Distribution members consents to the implementation of a work trial relating to continuous running in accordance with the "Heads of Agreement" ("HOA") developed at the Commission hearing on 2nd October, save for the necessary adjustment in dates in the HOA required to ensure the trial to be appropriately commenced.

PN325

That is the resolution which we sought to have incorporated into transcript and, your Honour, I am told by those instructing me that between one meeting and the other, every single employee in the relevant areas was in attendance. I am told that the union's recommendation was that the resolution which is DF7 to Mr Fountain's witness statement be agreed to and nonetheless that it was on each occasion unanimously rejected. One could say as a matter of fact, notwithstanding the communication of the union's support for the agreement that had been reached with the Commission's assistance. So in short, your Honour, the union has tried and failed.

PN326

THE SENIOR DEPUTY PRESIDENT: Mr Tuck, do you want to say anything about that?

PN327

MR TUCK: Your Honour, that leaves us in the position, we say that the bans continue, that the position of the employees placing a ban on that is the position of the union, that the ban continues. That resolution, notwithstanding good intents in the hope that it might resolve the matter, your Honour, there has been a background to this matter, we say, of misinformation about the terms of the agreement that has unfortunately, we say, led to a position where the employees have formed a view. That view was supported by the union. That has led to bans being placed on implementation and continuous running, and it is for that reason that we are left with no other position, your Honour, but to press ahead with our application. It is my intention to call first Mr David Whytcross.

PN328

MR HINKLEY: Just before Mr Whytcross is called, your Honour, I do of course object to anything that my learned friend said as being taken as evidence in these proceedings. I do that to protect the union's position if this matter goes further as it may well do. Sometimes you are obliged to interrupt just for the sake of doing it. I have consciously - the High Court has taken the view that if you don't then you have not stood on your rights and we are lawyers unfortunately, my friend and I.

PN329

MR TUCK: Your Honour, I am not seeking to give evidence from the bar table. I won't be doing that. That is just a submission that I make to indicate the motivation for the company.

PN330

THE SENIOR DEPUTY PRESIDENT: Yes. Well, as the company perceives it anyway.

PN331

MR TUCK: As it perceives it and it is on that basis that we will press ahead with our application for an order.

PN332

THE SENIOR DEPUTY PRESIDENT: Yes. I might just say for the sake of the record that, bearing in mind the conciliation that occurred last week and the proposed resolution or settlement that emerged there from, it would appear as though at this point there is little merit in further conciliation and as far as the parties are concerned, I am prepared to hear them on their applications.

PN333

MR TUCK: Thank you, your Honour. Your Honour, could I indicate the company has filed a statement by David Whytcross and prepared by James Houston. Mr Houston will not be available until after - I will say 2.30 this afternoon, your Honour. We received last night - I think I received it around 6 pm - the materials which will be relied on by the union in this matter. The company has sought instructions in relation to those statements. Whilst we have a view, your Honour, that first the obligation of the Commission in looking at the agreement, is to seek to interpret that agreement based on the language of the agreement.

PN334

THE SENIOR DEPUTY PRESIDENT: I agree that is the first step.

PN335

MR TUCK: And if the language of the agreement supports an unambiguous meaning, then there is no need and there is no basis upon which extrinsic material will be referred to or accepted into evidence. Now, your Honour, that material will go forward and it may well be that the process that we go through over the next few days is that extrinsic material that is accepted, CUB puts on its own material in answer to the evidence that has been put in by the union, but in submissions, your Honour, we will be saying that that material ought not to be referred to as a first step, because we say there is an unambiguous meaning available within the four corners of the agreement, and when you look at the agreement of a whole and interpret the agreement as a whole, you have no basis and no need to refer to the extrinsic material in this matter. And, your Honour, that seems to my mind probably the best and the quickest way of moving forward.

PN336

THE SENIOR DEPUTY PRESIDENT: That is true. It would mean that the whole of the material is before the Commission and both parties or all parties can make submissions on the material as it stands, rather than do it in a piecemeal fashion which will draw this matter out indefinitely.

PN337

MR TUCK: Yes, your Honour. With that in mind, your Honour, the statement is being prepared on behalf of a Mr Brendan Richardson in response. Mr Brendan Richardson is the National Employee Relations Manager of CUB, which Mr Richardson is preparing a draft and we hope to have that finalised and available to be served and filed at lunchtime and we can proceed immediately after lunch if that is convenient with Mr Richardson. He is available to fill in the gap.

PN338

THE SENIOR DEPUTY PRESIDENT: Well, subject to what Mr Hinkley has to say about it at the time.

PN339

MR TUCK: Yes, your Honour.

PN340

THE SENIOR DEPUTY PRESIDENT: I won't try and do it in hypothesis.

PN341

MR HINKLEY: We are content with what my friend suggested, your Honour.

PN342

THE SENIOR DEPUTY PRESIDENT: I see.

PN343

MR HINKLEY: We have had a chat about that. My friend, I think, is about to call his first witness, your Honour. I think we should make some reply to the view that my learned friend has expressed. There is no doubt that the Commission has a duty in law to establish as a matter of jurisdiction fact whether or not it has the capacity in this matter under 127 to make the order and of course that is an issue as to whether or not there is industrial action and it does require the interpretation of the agreement for that purpose only and I am tediously aware that your Honour is more than conscious of that.

PN344

I understand my learned friend makes an objection to some of the material at least that we have got in an affidavit of our witness statements to the effect that that material cannot be looked to for the purposes of interpretation unless it falls within the doctrine of ambiguity. I am not going to argue the content but your Honour I think wants to say something and I keep talking.

PN345

THE SENIOR DEPUTY PRESIDENT: Well, I understood Mr Tuck to be saying, and it is a proposition that I basically agree with, that one first looks to see whether the meaning is plain. If the meaning is plain, on the ordinary and normal application of the words and their meaning thereto, then one doesn't look further. If one has to look further, there is debate as to what one looks at, but certainly there is debate about intention and the expression of intention and what people thought was the meaning and material like that. We can hear all that in due course.

PN346

MR HINKLEY: Yes.

PN347

THE SENIOR DEPUTY PRESIDENT: I do accept, that as a basic proposition, that if the meaning is clear, then one doesn't need to go to the circumstances surrounding it.

PN348

MR HINKLEY: Well, with respect, your Honour, this is where we would want to differ from my learned friend.

PN349

THE SENIOR DEPUTY PRESIDENT: Well, I think I can save a lot of this. There have been a number of decisions.

PN350

MR HINKLEY: Your Honour, I don't think I am disagreeing with you.

PN351

THE SENIOR DEPUTY PRESIDENT: I have participated in one.

PN352

MR HINKLEY: I am not disagreeing with this point, your Honour.

PN353

THE SENIOR DEPUTY PRESIDENT: That a disagreement about the meaning is almost proof of an ambiguity.

PN354

MR HINKLEY: Well, your Honour, I am, as you are conscious of all these sorts of things and I couldn't agree more, but if there is no ambiguity at all in the document, even if counsel get up and say they have a different view, that doesn't mean there is an ambiguity, unless you go back to Isaacs J, who I don't think is any good law any more. The point I want to make though is quite distinctly different from that, and I don't in any way undermine what I would want to say about the interpretation of the document, but there is a discretion in the Commission as to whether or not they were full granted.

PN355

127 is an enabling power, not a compulsory to be exercised power. I am conscious of the word "compulsory" not being the right one. You have to go back to High Court judge that has recently put it in the correct ..... Now when one is looking at matters of discretion, your Honour, we say that the evidence which we produce shows that the company, either deliberately or in a seriously negligent fashion, failed to communicate the explanation of the proposed agreement to the employees during the period in which the employees had received copies of that agreement, fourteen days.

PN356

THE SENIOR DEPUTY PRESIDENT: Is this tied up with your trade practices reference?

PN357

MR HINKLEY: Well it is not, your Honour. It is not a trade practices point at all, your Honour, it is a 127 point.

PN358

THE SENIOR DEPUTY PRESIDENT: Yes, I take it, but it is analogous.

PN359

MR HINKLEY: Well, your Honour, can I say I am making these submissions for the purposes of this case and I am not inviting your Honour to be influenced in any way by whatever other action we might take, but in this case it is a matter of discretion and we say to the Commission that there is authority that where the conduct of the employer has been to deliberately mislead, or negligently mislead, or facilitate a process by which the employees are mislead into believing that the explanation of part of the agreement which they are being asked to agree to, is in this case, to enable continuous running to be established only if it is agreed to at the work floor, if they use that process.

PN360

Then as a matter of discretion, even if the Commission came at the end of the day to interpretation of the document that obviated the need for consent, the Commission would seriously consider, and we would say would in conscience be compelled to refuse the relief because the employer, has as a matter of equity, come to the Commission with unclean hands having either deliberately or by a process of negligence or beyond that even knowingly permitted the employees to be misled. Now that is not an ambiguity point, your Honour.

PN361

THE SENIOR DEPUTY PRESIDENT: No.

PN362

MR HINKLEY: It is a question of discretion and I wouldn't have wanted the matter to proceed, no matter what my friend has said, without him to being substantially alerted to that and that is the basis upon which, apart from anything else, we will rely upon the evidence we adduce. Now I completely agree with your Honour, we will come up with the evidence and my friend can object to it in terms of ambiguity with an ample legal argument at the end of the day of that. Which ever way your Honour goes there, we want to tell your Honour, as a matter of law, that the Commission would be moved not to grant the relief because of the conduct of the company.

PN363

MR TUCK: Your Honour, just so that it is clear where we are all coming from.

PN364

THE SENIOR DEPUTY PRESIDENT: That is a desirable objective, Mr Tuck.

PN365

MR TUCK: Yes, your Honour. The agreement is a section 170LJ agreement. That has certain requirements for the approval by a valid majority and access to the agreement provided before approval under section 170LJ(3). This agreement was certified by this Commission and in doing that, under section 170LT, the Commission has satisfied itself that those provisions have been complied with. That is the Commission has already determined this and it is not open again, we say, my friend now to challenge that finding.

PN366

That is a finding which has not been appealed. It is a finding of this Commission. It is not open, we say to you, to revisit that issue. That is a matter which has already been determined and in effect, the doctrine in the sense of ..... applies, that that matter has been determined. That is, in terms of satisfying the obligation under 170LJ(3), the Commission has satisfied itself that that obligation has been complied with when it certified this agreement. Now I understand my learned friend will seek to rely on evidence to say, "Well, you can still look at this material in the exercise of your discretion", well, your discretion may be so good that you may be able to look at it for that purpose but, your Honour, we say you can't go further than that and say, "Well, this agreement was not properly certified because it was not properly explained, therefore there is not a proper valid majority", because that is where the argument seems to be going.

PN367

THE SENIOR DEPUTY PRESIDENT: Yes.

PN368

MR TUCK: And I am just concerned that we state our position in relation to that quite clearly.

PN369

THE SENIOR DEPUTY PRESIDENT: Well, you have both made - in effect, re-openings. I clearly understand where you are both coming from. You are on different trams. I think we will stick with the arrangement that we had come to before, that we will take the evidence, subject to the normal rights of objection, I will be influenced by what you have both put here as to its relevance at the time. Submissions, in the end, will deal with the application of the law to the evidence that is established.

PN370

MR TUCK: Thank you, your Honour.

PN371

THE SENIOR DEPUTY PRESIDENT: And that gives you both freedom to put your arguments as you have outlined them already.

PN372

MR HINKLEY: Your Honour, I regret having to rise again. My learned friend has incorrectly characterised what I said to your Honour. If I had wanted to refer to 170LJ(3) I probably would have. The submission that I put to your Honour is not presently that the Commission was misled or that the agreement, the certification of it, should be revoked because it was achieved by fraud or false witness. I am not saying that. What I am saying to the Commission is that when you go to the exercise of discretion under 172 and you are presented with evidence of fraud or misleading conduct, or sitting back and allowing people to be misled, that is a matter of discretion the Commission would not come to the assistance of the moving party which it conducted itself in such a manner.

PN373

Now I haven't asked for the agreement certification to be revoked. If I had wanted that, I probably would have said it. What I have said to the Commission is that when you look at discretion and evidences of the nature that I have suggested, that the Commission does not come to the aid of the party who attends with unclean hands. I don't want my friend to misunderstand that, and as I say, it is not the trade practices point. I am not agitating that here. Maybe some aspect of it could be relevant to it. That is not what I agitate, and I am not seeking revocation of the agreement before your Honour today.

PN374

I don't say that we haven't thought about these things and may in due course do things about them, but that is not the way I perceive today. It is simply that, so far as the discretion is concerned, the Commission does not come to the aid of the party who moves with unclean hands. I wouldn't want my friend to misunderstand that because that is very much the core of much of the evidence that we are leading and much of the cross-examination.

PN375

THE SENIOR DEPUTY PRESIDENT: If you are ready we will call your first witness, Mr Tuck.

PN376

MR TUCK: Your Honour, I call David Whytcross.

<DAVID JOHN WHYTCROSS, SWORN [11.20am]

<EXAMINATION-IN-CHIEF BY MR TUCK

PN377

MR TUCK: Your name is David Whytcross?---Yes, it is.

PN378

And you are the Manager, Distribution, Victoria employed by CUB?---Yes, I am.

PN379

At 46 South Hampton Crescent, Abbotsford?---Yes, I am.

PN380

Mr Whytcross, have you prepared a statement for these proceedings?---I have.

PN381

And do you have a copy of that statement with you?---Yes, I do.

PN382

Is that statement true and correct, Mr Whytcross?---Yes, it is.

PN383

Are the exhibits attached to that statement the exhibits to which you refer in your statement?---Yes, they are.

PN384

I tender the statement and the exhibits, your Honour.

PN385

THE SENIOR DEPUTY PRESIDENT: Any objection?

PN386

MR HINKLEY: No, your Honour.

EXHIBIT #CUB2 WITNESS STATEMENT OF DAVID JOHN WHYTCROSS WITH EXHIBITS

**** DAVID JOHN WHYTCROSS XN MR TUCK

PN387

MR TUCK: Mr Whytcross, since making - preparing this statement, are you able to update his Honour as to the situation in relation to the company's attempts to implement continuous running?---Yes, I can. Your Honour, at this stage the company has no operation in the implementation of the work trials on continuous running and at this stage we feel work bans are still in place.

PN388

THE SENIOR DEPUTY PRESIDENT: Just so that I clearly understand the situation, at the Abbotsford plant there is some continuous running?---In some of the - - -

PN389

In some of the - - -?---In the security office - - -

PN390

Yes?---There is continuous running. I the - what is called the check-in office or the book-in office, there is continuous running and has been for probably ten to twelve years, but on the packaging lines and within distribution itself, continuous running is not currently implemented.

PN391

MR TUCK: Thank you. I have no further questions.

PN392

THE SENIOR DEPUTY PRESIDENT: Mr Hinkley?

<CROSS-EXAMINATION BY MR HINKLEY [11.23am]

PN393

MR HINKLEY: Yes, Mr Whytcross, can you indicate as best you can to the Commission how many employees are employed in security and check-in combined, being people who are presently working on continuous running?---Within the check-in office there would be, on a three shift rotation, approximately 12 people that are rostered through that particular facility, but at any one particular time there is only two people within that despatch office and book-in office. Within the security department there are currently three people on a particular shift per day that operate continuously, your Honour.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN394

And, Mr Whytcross, I appreciate that you are Manager, Distribution for Victoria, but what responsibilities have you got for production, if any, at Abbotsford?---As far as production is concerned, I am responsible for ensuring that production is taken off the packaging lines at the end of the line, so my staff need to ensure that the pallets are removed from the packaging lines so that the lines can run continuously, your Honour.

PN395

All right. When you say, "can run continuously", you are not suggesting that those lines at the moment do run continuously?---No, that is correct.

PN396

Now, Mr Whytcross, it is the position, isn't it, that you were not involved in the negotiations for the 2000 EBA that applies to the LHMU at the Abbotsford and Altona sites?---That is correct.

PN397

Yes. I appreciate that your witness statement sort of jumps in in the middle of Mr Houstons and I make no complaint about that. Can I take you though to a couple of the paragraphs in your witness statement and also ask you to have before you a copy of the statements made by the LHMU proposed witnesses and I think, your Honour, we can hand a copy of those to the witness, with a plea that he reminds me, because I will forget, that they come back to us. I think you have got a number of witness statements there, Mr Whytcross. Perhaps you could just indicate the names of the persons of the witness statements we have just had handed to you?---Witness statement from Dominic Fountain and a witness statement of James Weissmann and a witness statement from Trevor Veenendaal.

PN398

Yes, and I understand they are the ones that have been forwarded to the Commission and provided to the other side. Can I take you to paragraphs 18, 19 and 20 of your own witness statement and you might just have a look at those and refresh yourself about them. You have done that?---Yes.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN399

And can I ask you also to go to paragraph 6 of your witness statement and refresh yourself about that also. Dealing with your paragraph 6 and Mr Veenendaal's paragraph 2, can you just tell the Commission briefly, from your perspective, how it was that Mr Fountain's suspension took place?---I might just need some time to read Mr Veenendaal's statement. I haven't actually read that as yet.

PN400

I do apologise. I appreciate you saying that and thank you. Could you - you haven't seen Mr Veenendaal's statement at all?---Not before this time.

PN401

All right. Your Honour, I don't want to cause any difficulty for the witness. The witness statements we filed last night and I appreciate they cam to my learned friend's attention at 6 pm. I also say they came to my attention then too. They do refer to various parts of Mr Whytcross' statement and my normal sense of this would be that it is a bit unfair to ask him in the witness box to digest paragraph by paragraph responses to what he said, unless he has had a good opportunity to read them. It may seem strange coming from me, but I do think - it is not strange coming from me, it is strange coming from a lawyer, I do think he shouldn't be placed in a position where he is embarrassed by that and I would be happy to facilitate him taking some time, either before your Honour or else wise to have a good look at them because I think it is unfair if he doesn't get a chance to traverse the material.

PN402

THE SENIOR DEPUTY PRESIDENT: What do you say, Mr Tuck?

PN403

MR TUCK: Well, I am not sure what the questions are going to be, your Honour.

PN404

THE SENIOR DEPUTY PRESIDENT: Well, the question appears to be merging. Should we adjourn or do something of a similar kind to allow - - -

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN405

MR TUCK: I understand that question, your Honour. I wasn't sure - I don't know where my friend is going to go in terms of the statements. They have got different views. I would say this, your Honour, in terms of the obligations in relation to Browne and Dunn, I have always taken the view and I think the Commission accepts it, that if you exchange witness statements then you don't need to put every other allegation to a witness. It is taken as read that the different versions are before the Commission. Your Honour, however, I understand my friend may wish to ask questions in relation to particular issues and it may, if he is going to do that, be worthwhile then giving Mr Whytcross 15 minutes to read the statements because he hasn't had an opportunity to do so before today.

PN406

THE SENIOR DEPUTY PRESIDENT: Well, having heard what I have, I agree with that, and it is better to do it by way of adjournment to remove me from the scene, rather than the other suggestion which I know wasn't put strongly, that I simply sit here while Mr Whytcross reads the document. I think it would be better for both of us if we don't do that, so I will adjourn for 15 minutes to permit you to read the documents?---Thank you, your Honour.

SHORT ADJOURNMENT [11.30am]

RESUMED [11.49am]

PN407

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Hinkley.

PN408

MR HINKLEY: If your Honour pleases.

PN409

Mr Whytcross, I think I had been taking your paragraph 6 and I had been asking you to look at Mr Veenendaal's paragraph 2 and you indicated you hadn't had a chance to read the statements. And what I was asking you, I seem to recall, is could you very briefly tell the Commission from your perspective what issue it was that led to the suspension of Mr Fountain. So having repeated the question, I ask you to answer it. Okay?---Yes. Okay. Yes. Paragraph 6 of my statement, sir, is:

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN410

At 10 am on 9 September the report back conference took place before SDP Watson who stated that the terms of his recommendation should stand and that the union - and that the team meetings scheduled for that afternoon should proceed. SDP Watson stated the unions were entitled - - -

PN411

I am sorry, what are you reading from, your statement?---Yes.

PN412

Yes?---Paragraph 6.

PN413

I must have misled you, I regret if I have done that. What I was interested in asking you was about Mr Veenendaal's paragraph 2?---Yes.

PN414

And I think you indicated earlier, before the adjournment, that you hadn't had a chance to read it. And I take you now have?---Yes.

PN415

Yes. And my question was, as I recall it, if you could very briefly tell the Commission what, from your perspective, were the reasons that led to Mr Fountain's suspension. Can I tell you this, I am not going to argue about whether they were justified or not, that is before the Commission in another matter. But I just want you to indicate to the Commission what the reasons, as you understand them were, for his suspension?---The reasons about Mr Fountain being suspended to carry out his normal duties was that he was found to be, and the company alleged, that Mr Fountain was unfit to carry out his normal duties on the grounds that he was intoxicated when arriving to work and - and also had been deemed to drinking on site. On those grounds the company held an investigation. Mr Fountain was suspended on full pay pending that investigation. And Mr Fountain was then, after the allegations and investigation completed and several interviews took place, Mr Fountain was then suspended for a period of six weeks without pay. On - also the recommendation that he would be redeployed into another work area upon his return, for various reasons. And - and also he needed to participate in an employee assistance program.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN416

All right. Now that six weeks suspension period is still currently operative. That is right, isn't it?---That would be correct.

PN417

Yes. And to your knowledge, Mr Fountain has been for some time - and still is - the senior delegate for the union at the Abbotsford site?---That is correct.

PN418

That is right. Yes. And you know that he has been in that capacity an active participant in discussions and meetings with the employees and discussions with management concerning the proposed continuous running?---Yes.

PN419

Yes. And you would appreciate that granted that involvement, the union's position understandably would be that he should continue to participate in such discussions and, if any, negotiate. You would appreciate that?---I would appreciate that.

PN420

Yes. And you know that in fact the union has advised you of an arrangement whereby he at least temporarily is employed as an organiser by the union. And you know that?---From my understanding, upon certain conditions. Yes, that is correct.

PN421

Yes. When you say "upon certain conditions" have you got something in mind?---There was a document put together by Mr Brian Daley, and a conversation would have taken place between Brian Daley and the current general manager in that prior notice to - my understanding is, if prior notice was giving - was given that Mr Fountain was to - to attend - - -

PN422

Yes. Yes. No, I am not asking you about that Whytcross, sorry?---Okay.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN423

I am just asking you whether or not as far as you are aware - or at least you have been informed that Mr Fountain has been appointed by the union as a temporary organiser. And I think you - you are nodding your head, yes. I think we are on a tape recording so they don't pick up nods. They pick up grunts but they don't pick up nods. And you would appreciate that from the union's point of view it is of great importance that he be able to attend meetings with men, or talk to them about at least continuous running. You would appreciate that?---It could be the union's view, yes.

PN424

Yes. And that he would be the - one of the responsible people to meet with the company regarding the prospect of continuous running?---Yes.

PN425

Yes. And that is not withstanding his suspension?---Correct.

PN426

So, you don't at all take any issue that it is quite appropriate for the union to say that he should be able to meet with the men as necessary without continuous running?---I would have no problems with that, as long as the conditions of him being an organiser in participating at site meetings was adhered to re the agreement that was put in place between the company and the union.

PN427

And when you say "agreement" what are you referring to?---I was on the grounds that Mr Fountain - - -

PN428

No. No, sorry. When you use the word "agreement" I just want to identify what it is that you mean by that word?---Well, well, that is what I was going to state, that the agreement was that if Mr Fountain was to be a temporary union organiser, given that Mr Fountain was suspended the company would require some polite courtesies re being notified when he attended the site. And that Mr Fountain would be escorted to the - would be escorted to the team meetings by an appropriate manager and then escorted to the exit site.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN429

All right. So you are saying there is correspondence, is there, that identifies what you are talking about as an agreement?---My understanding there is, yes. My understanding there is, yes.

PN430

Yes. Have you seen the correspondence?---I have seen it, yes.

PN431

Yes. And it is accessible amongst your documents here in the Commission or is it back at the office?---I am not too sure about - I assume there would be a copy back in the office. I am not too sure there would be a copy here with Ms Barnesby on it.

PN432

Your Honour, excuse me a moment.

PN433

We will just leave that for a moment, Mr Whytcross, and we will move on. You would accept, would you, that if Mr Fountain was not able to meet with the - I will just say "men" and apologise for not saying "women" all the time - meet with the men about continuous running that that could lead to difficulties in the men being prepared to meet without his assistance and have him try to deal with their problems. You would accept that that would be an unfortunate circumstance and you wouldn't want to prevent him from being able to attend to meet with the members about this issue of continuous running?---If you are asking for me - for my opinion on that, my opinion is that there are several other site delegates from the LHMU.

PN434

Yes. You know he is deemed the main person on site dealing with the issue of continuous running, from the union's perspective?---Yes, I would.

PN435

And that he has got a long history of having dealt with continuous running matter even before you were there?---That could be the case.

PN436

Yes. So I am suggesting to you that to unfairly or unnecessarily prevent him from meeting with the men about this issue would be counterproductive?---I agree.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN437

Yes. And that really, in order to keep things moving as far as the men are concerned, they really do need to have appropriate access to him on site?---I don't disagree with that. Yes.

PN438

Yes. All right. Can I just go back to that correspondence point. Where would one find in CUB the copies of the correspondence you think constituted an agreement about Mr Fountain exercising access to the site?---Where would I find a copy of that?

PN439

Yes. Where would one find it?---Well, I haven't got a copy here in my hand.

PN440

No?---But the - - -

PN441

Do you know who would be likely to have one?---Well, there could be one at - in our HR department at Abbotsford, it could be.

PN442

All right. Well, we will perhaps ask my friend to see if that can be found.

PN443

MR TUCK: Is it written to your client?

PN444

MR HINKLEY: Yes. Well, it doesn't diminish my question.

PN445

MR TUCK: I am sure .....

PN446

MR HINKLEY: It doesn't diminish my question. Well, as I say, we will speak to my friend about it but we won't put that speaking on transcript. I don't think that is particularly helpful.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN447

Now, can I take you back to your witness statement then, Mr Whytcross. In your paragraph 7 you will see that you were told by Mr Allsop that LHMU delegates were informing all award employees not to attend the meeting schedule for that afternoon, and that is 9 September. Do you see that?---Yes, I do.

PN448

Who is Mr Allsop?---Mr Jason Allsop is the CUB warehouse manager at Abbotsford.

PN449

Right. Abbotsford, is it?---At Abbotsford. Yes.

PN450

Yes. All right. Did you ask the union whether or not that was their position?---Yes, I did.

PN451

Yes. To whom did you speak?---I spoke to a Harry Murphy, Trevor Morel, Michael Williams, Frank Bazenski and Paul Kershaw.

PN452

Yes. And you asked them, did you, whether or not the union had told ASU delegate - I beg your pardon, LHMU delegates that award employees were not to attend the meeting scheduled for the afternoon - you asked them that, did you?---There was a meeting convened at - I think it was 1 pm that day.

PN453

Yes?---The only people that were in attendance - there was scheduled to be approximately 15 award employees, 15 to 20 people attend that meeting.

PN454

Yes?---The only people that were in attendance at the Abbotsford Learning Centre, to participate in the meeting, were the four people I have just mentioned, as in - in the site union delegates.

PN455

Yes?---And I asked them whether they were going to participate in the presentation and as to where the other award members were from the warehouse.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN456

Yes?---And the LHMU delegate at that time, Mr Paul Kershaw, then told me that he had instructed his members that the meeting - that they would not be attending that presentation by the company.

PN457

Yes?---And I - - -

PN458

I am sorry, I don't want to stop you?---That is okay.

PN459

In your paragraph 9 you will see that Mr Kershaw that the LHMU had instructed its members not to attend. You just said a moment ago that he had instructed the LHMU members not to attend?---That is correct.

PN460

So, which - or what was it?---Mr Paul Kershaw, as being the site delegate for the LHMU at that time had instructed LHU members - LHMU members not to attend the company-held work meeting on that day.

PN461

Right. In that last answer, as I understood it, you were saying that Mr Kershaw had instructed the members not to attend. Is that the position?---That is - I asked that question and Mr Kershaw gave me that - that answer, that he instructed LHMU members not to attend that meeting.

PN462

Yes. What he didn't say was that he had been directed by the LHMU to instruct the members not to attend. He didn't say that?---No, he didn't say that. No.

PN463

All right. My friend was right. There was a letter sent to us and we have just found it. It is not in the material, your Honour. We will have a look at it and come back to it if necessary.

PN464

All right. Now, can I take you then to page 3 of your witness statement and just ask you to briefly refresh yourself about paragraphs 18, 19 and 20?---Yes. I - - -

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN465

Can I remind you, and I am quite content for you to go and have a look at it again if you want to, about Mr Veenendaal's statement in his paragraph 3 where he speaks of - about half way through that paragraph - what you have said there in 18, 19 and 20. And he agrees that he had sent a facsimile to you about the meeting and he says:

PN466

The reason I sent it was -

PN467

because he knew Fountain and Weissmann and himself were fully occupied in the Commission on the Tuesday the 17th, in order to deal with the application that CUB had made to the Commission. Were you aware that that was the reason?---At that stage I was, yes.

PN468

At that stage you were?---Yes.

PN469

Yes, all right. Okay. And that - I think that meeting in the Commission was on a 127 application made by CUB in relation to what it saw was the prospect or more of industrial action in relation to Mr Fountain's suspension. Is that right?---That is correct.

PN470

Yes. All right. Were you in the Commission that day?---I was.

PN471

Yes. And were you there during the time for which you had intended to have your meeting?---I was.

PN472

Yes. All right. Can I take you then over to the next page, which is page 4 of your witness statement. Can you see there you refer to a document sent to, amongst others, Mr Daley the Victorian branch secretary of the LHMU? And it is exhibited amongst letters in your exhibit 5. And it is signed in each case by Mr Robinson. Now, you didn't create this letter?---I did not.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN473

No. And you are not in the position - can I take you to the first one, I think it is Mr Washington and the CFMEU - and all the letters are the same. And it is just that second paragraph I will ask you about at the moment. Can you see that there?---Sorry, is this on point 23, is it? Paragraph 23 of my witness statement?

PN474

No, sorry, I have misled you. It is under the exhibit numbered 5 of your witness statement. And these things have sort of big pieces of paper in front of each exhibit. It takes a bit of ploughing. But it consists of a letter from Carlton and United. And you will see their name on the top right hand corner?---Yes.

PN475

Have you found that, one of those letters?---I think I have found the - the one marked to the attention of Brian Daley, was it?

PN476

Well, that is fine, yes, if you have got Mr Daley's. Just for convenience, your Honour, they are all the same - on my reading.

PN477

So if you take the one addressed to Mr Daley, second sentence, you will see - I beg your pardon. The second paragraph, you will see, says:

PN478

I am concerned that your union has indicated a reluctance to attend this meeting.

PN479

You didn't advise Mr Robinson, I take it, about the content of the letter that is in your exhibit 5?---I had no party in to writing this letter, no.

PN480

Yes. All right. If you will excuse me a moment.

PN481

Now, can I take you then to paragraph 29. In - I am sorry, paragraph 25, I am sorry, of your witness statement. Mr Fountain, his paragraph 29 - and if you have got it there it might be convenient just to pick it up and perhaps just refresh yourself about it. I know you have had a chance to look at it but you may feel more comfortable just revisiting it?---Yes.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN482

Good. You would appreciate that Mr Fountain is saying, in effect, "I expected the meeting to be held on site but in fact it appears it was to be held at the Learning Centre" - you would appreciate that is what he is saying?---I would appreciate that, yes.

PN483

Yes. And is it right that the Learning Centre is not on site?---It is not part of the Abbotsford Brewery site as itself.

PN484

Thank you?---But it is a site - it is a site owned by CUB.

PN485

Yes. Where is it?---It is in South Hampton Crescent, just opposite the main production line of our bottling line. So - - -

PN486

Yes. You didn't have any responsibility to - is this right: you didn't have any responsibility to advise the union, Mr Fountain, what the site would be for this meeting?---I would be honest, I had assumed that had been done. That the meeting had been schedule down for the Abbotsford Learning Centre.

PN487

Yes. Well, of course he says he wasn't told that and you don't take issue with that, do you?---I - no, I do not.

PN488

No. All right. Pretty important meeting, the proposed meeting of the 19th in your paragraph 25?---Yes, they were all extremely important, yes.

PN489

Yes. All right. Now, can I take you to your paragraph 29. Did you attend the meeting that you are referring to here on the 29th - I am sorry, in paragraph 29?---Sorry, the 29 is:

PN490

James Houston stated in an order to practically understand the issues that had been raised re the work trials discussions would commence immediately between managers, supervisors, employees and delegates on the B2 packaging line.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN491

Is that what you are referring to, sorry?

PN492

Yes, it is. And can I just remind you of your paragraph 28, on the previous page?---Yes.

PN493

There is a reference there to 24 September. Is that the meeting you are talking about in your paragraph 29?---No, that - the meeting on Sunday the - advised that a work trial would commence. Nothing to do with the delegates on the B2 packaging line to discuss how the trial would occur. Not form my understanding, no.

PN494

I am sorry, I must be getting myself even more confused than usual. I am just trying to identify whether what you say in paragraph 29 "Mr Houston stated" - did he state that the meeting that you refer to in your paragraph 28, namely on 24 September - you attended a meeting?---Yes.

PN495

Yes. All right. And what was the atmosphere in that meeting like?---The majority of the meetings, the business process meetings, were fairly amicable and - - -

PN496

And that one also was amicable, was it?---As - as far as I can recall, yes.

PN497

Yes. Did the union make clear that it had a view about the introduction of a trial?---The unions did have their views, yes.

PN498

Well, I would be surprised if they didn't have their views. Did they make it clear what their attitude was to the introduction of the trial?---Yes, that happened.

PN499

And they expressed opposition to it?---Yes, they did.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN500

Right. Now, this is on 24 September, some five days before the Sunday the 29th, the proposed time of the introduction of the trial. You were in the position then, I take it, that you well and truly knew that the union would be opposed to the trial being conducted?---Not necessarily. We were hoping, obviously, to resolve some of the issues that had been raised by - by the work areas. That - that is the business process meeting was to resolve some of those major issues and we could - we could work through the work area issues that had also been raised.

PN501

All right. Now, just reminding you of paragraph 31 to 32, that:

PN502

We go to Mr Houston for events between 25 and 27 September.

PN503

You can see that there and you are conscious of that?---Yes.

PN504

Amongst those events was a hearing before Commissioner Hodder, is that your understanding?---Yes.

PN505

Yes. And that hearing before Commissioner Hodder, is it right, was on the Friday the 27th - is that your memory?---That is correct. Yes. Yes, it is.

PN506

Don't be embarrassed if you answer the question, you just say so?---Yes. No, that is correct. Yes.

PN507

All right. And you understand that following that hearing before Commissioner Hodder the union would want to meet with the employees on site, even if only to report what had happened before the Commission - you would appreciate that?---Well, there was no communication of that by the union to the company.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN508

Yes. I am just asking something different, I think?---Right.

PN509

And this time I am not going to apologise - - -?---Okay.

PN510

- - - I think I got it right that time. You would understand that the union would want to, after the hearing before Commissioner Hodder, would want to have some report back to the members about what happened before the Commission?---It is my understanding, it had been in the Industrial Relations Commission in the last 12 months on several occasions, that the union have - and my interpretation is the union have been reluctant to give back report back meetings to award employees after hearings in the Industrial Relations Commission.

PN511

Have been "reluctant" to?---Well, haven't - hadn't actively involved members in report meetings on some - - -

[12.15pm]

PN512

Yes?---For some of those hearings.

PN513

Yes. Were you in attendance at the hearing before Commissioner Hodder on the 27th? The Friday?---I was.

PN514

Yes. And you would know what was in issue there, amongst other things, was the proposal for a trial on the 29th?---I do.

PN515

That was a Bugs Bunny pronunciation?---It was.

PN516

And you would accept that, granted you were planning a trial to start on the 29th and Commissioner Hodder had had hearing at least about that on the 27th, but the union should meet with the employees and tell them what had happened before the Commission?---If it was me and I was at the union, I certainly would have been wishing to conduct a meeting, yes.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN517

Yes. And of course, from your position, you wouldn't want to prevent the union from having such a meeting to report back what had happened before Commissioner Hodder?---Normal courtesies apply but there would certainly be no hesitation in allowing report-back meetings from any of the unions concerned.

PN518

Yes. And normal courtesies are some sort of notice, are they?---That would be to conduct a report back meeting or a stop work meeting as such, yes.

PN519

Yes. And when you say stop work meeting, what do you mean by that?---Well, if there is a meeting going to be conducted during the normal hours of work that is not within the meal break period, then we would class that as basically a stop work meeting. We are stopping work while that meeting is taking place.

PN520

Yes. It hadn't been - it hadn't been uncommon, really, for the company to agree to enable union representatives to come on site and report back to the members during their working hours at a meeting, had it? That had happened not uncommonly?---That has happened in a number of ways.

PN521

Yes. But they would be meetings that were held during working time where the union was having meetings to report back or otherwise discuss with the employees industrial issues?---My recollection is that there would not have been too many times over the past two years while I have been in this position that unions have had a full work area meeting - report back meeting during normal working hours.

PN522

Yes?---And work actually stopping.

PN523

Yes. When you say there hadn't been too many times, you are not suggesting that there hadn't been occasions when that had happened?---I honestly can't recall any.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN524

All right. So are you saying that there had never been meetings to your knowledge during working hours where the union had been given the opportunity by the company to report back to or meet with the employees in a meeting during working hours?---I am trying to think of times when that has happened, and apart from the work area meetings that were conducted yesterday with consultation with the company, I can't recall any others than that, other than ones that have been conducted in conjunction with CUB presentations, when we have offered the unions to tag at the end of the company's presentations on continuous running trials that they have had their 30 minutes allowance, if you like, to present the union's perspective on the continuous running project.

PN525

Yes. Of course here we are on paragraph 32 of your witness statement, we are on Sunday the 29th, the day on which you propose to implement the trial. You would appreciate that that is a very significant event in the - proposed event in the life of the union and the men, the introduction of a trial?---Yes.

PN526

Yes. And it was the case, wasn't it, that the actual starting of the trial was scheduled for somewhere about 11 or midnight for that shift coming on, on the Sunday night?---I think the shift started at 10 o'clock, or something like that, yes.

PN527

And that is in the evening?---Yes.

PN528

10 o'clock at night, I should say, yes. All right. And that if the trial were started, a necessary consequence would be that there wouldn't be any one time at which all of the people involved would be on some sort of break?---No, there was a roster put up the previous week regarding the staggered meal breaks. That all members, as far as we were concerned, all members of both the packaging line and distribution, could have been spoken to from the union during those meal breaks.

PN529

Yes, but there was no - no capacity with the introduction of the trial, for the union to speak to all of the members in packaging and distribution at the one time?---Unless it was - no, not unless it was done prior to the shift commencing.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN530

Yes. Unless it was done prior to the shift commencing?---Correct.

PN531

Yes. In other words, during the trial, because of the staggered meal and rest breaks, the men would never be taking breaks all of them together at the one time?---That is correct.

PN532

Yes. And in your experience, I would suggest you would agree with me, that if the union is going to consult with the members, the preferable course is for it to happen if possible, at the one time at one meeting where all of the members can be in attendance and deal with the issue?---That could be the union's views, yes.

PN533

Yes. I didn't ask you that, though. I asked you with your experience, wouldn't you agree that it would be preferable if the union is going to consult with its members, for the meeting where that consultation takes place, to be arranged at a time when all of the members could be gathered together for the union to have those consultations. In your experience, I would suggest, that is the preferable way for these things to happen?---My answer is, unfortunately, sorry, still the same. It could be the - it might not be my view, but it could be the union's view.

PN534

Mr Whytcross, I am asking you your view. The union will be able to communicate its view. What I want to know is a man with your experience, wouldn't you agree that if the union is wanting to consult with its members on an important issue, that the preferable situation is for all of those employees to be able to meet with the union at the one time to deal with that important issue?---My view is if the union were going to recommend to their members that the work trials and staggered breaks do not occur, then they would have had the opportunity to talk to the members within those meal breaks. That is my interpretation.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN535

Yes. You see, Mr Whytcross, I am not asking you about interpretations. I am asking you as a person who, with respect, has sworn an oath to the Commission, who is a man, one assumes, of integrity yourself, and not just a mouthpiece for CUB. I am asking you, with your experience, wouldn't you have the view that if there is an important issue that the union wants to consult its members about, it is preferable that all those members be in attendance at the one time during that consultation? Isn't that the preferable way to go?---My opinion is yes, that would be preferable under similar circumstances that have arisen with yesterday and the prior consultation with the company when there is a report - when the unions wish to have a report back meeting, there is consultation with the company and if those meetings can be arranged with the work areas and the associated unions, then those meetings do take place as yesterday was proof of that.

PN536

Yes. And it is preferable that in those circumstances the union be able to meet with all of its members at the same time to report back and consult them about the issues. That is your opinion?---Yes.

PN537

Yes. Now there is no doubt, is there, that you realise that the union on that night of the Sunday wanted to meet with its members who were coming onto shift, to report back to them about Commissioner Hodder's hearing and consult them about the proposed trial. You knew that?---I did not know that, no.

PN538

You didn't know that?---No, not until - sorry, I did not know that until I arrived at approximately 10 pm on that Sunday night for a couple of different issues or a couple of issues. I did not know they were wanting to have a report back meeting or a stop work meeting until I arrived at 10 o'clock on that Sunday night.

PN539

Yes, all right. We will come back to some of the things that you said there, but what you are saying is that you didn't know that that is what the union did want to do until you got to the - - -?---That is correct.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN540

- - - is it called the security hut or something?---Yes, that is correct.

PN541

Yes. But you did become aware of that very quickly?---When I arrived, yes.

PN542

Yes. And you say in your answer to my prior question, you say you didn't know that they wanted to make a report back and hold a stop work meeting. Do you recall saying that?---Yes.

PN543

Yes, okay. So you did know that the union wanted to report back to the members about the Commissioner Hodder hearing?---When I arrived at work that evening.

PN544

Yes, I am not disputing that with you?---Yes.

PN545

Yes, all right. And you called that a stop work meeting, the one you understood the union was proposing?---Correct.

PN546

Yes. I would suggest to you that the union didn't call it a stop work meeting. What do you say to that?---Well, I say my interpretation is the union did state that to me.

PN547

Yes, that is your interpretation of what?---Well, you asked me for my answer. My answer was that the union did state to me that they would be holding a stop work meeting.

PN548

Yes, you see that wasn't your answer, Mr Whytcross. Your answer was "my interpretation was"?---That is correct.

PN549

That is what you said, and then I asked you why did you interpret it that way and you changed your answer. You said they said it to you?---My answer - - -

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN550

MR TUCK: I object to that, your Honour. I object to the question, your Honour. It is misleading to suggest that the answers are inconsistent.

PN551

THE SENIOR DEPUTY PRESIDENT: It depends how you put the question.

PN552

MR HINKLEY: Well, your Honour, I will make submissions at the end of the day as to whether or not the answers are inconsistent.

PN553

THE SENIOR DEPUTY PRESIDENT: But if they are misleading I wouldn't permit it.

PN554

MR TUCK: My objection is they are misleading, your Honour.

PN555

THE SENIOR DEPUTY PRESIDENT: Yes.

PN556

MR TUCK: To suggest that they are inconsistent and they are clearly not.

PN557

MR HINKLEY: Well, with respect to my friend, in my submission that is just not right. If somebody says my interpretation is as follows, one is entitled to explore the basis of the interpretation. If the answer when one asks what is the basis of the interpretation is to say that is what they said, that is not an interpretation; that is a statement of what was actually said. Now it seems to me that one is entitled to explore the interpretation position to identify why it was the witness spoke of it as an interpretation. He may have a simple answer to that.

PN558

THE SENIOR DEPUTY PRESIDENT: Yes, he was asked what was the basis of what he said and he was told that that was what was said. That is an answer to a question that asks what the basis of something was.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN559

MR HINKLEY: With respect, your Honour, my question was what was the basis and he said it was my interpretation that that is what they wanted. I asked him the basis of that interpretation and then he gave another answer which was that was what they said.

PN560

THE SENIOR DEPUTY PRESIDENT: What they said.

PN561

MR HINKLEY: Yes. Well, that doesn't preclude me in cross-examination from exploring the prior answer which was that he had an interpretation.

PN562

MR TUCK: It is a different question, though.

PN563

THE SENIOR DEPUTY PRESIDENT: It is getting very - - -

PN564

MR HINKLEY: Well, it is not a different question. That is the very thing I have asked.

PN565

MR TUCK: I don't object to that question.

PN566

MR HINKLEY: It is the very thing I have asked the man. Goodness me?---I might not have - your Honour - - -

PN567

Wait a minute. Just hold on, Mr Whytcross. Someone will ask you a question.

PN568

THE SENIOR DEPUTY PRESIDENT: If you are prepared to put it in that form, I will permit the question.

PN569

MR HINKLEY: Well, I regret if it is understood that I didn't put it in that form.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN570

You did tell me that your interpretation was that the union wanted to hold a stop work meeting. Do you recall that?---Yes.

PN571

Yes. And what was the basis of interpretation? What was it you were interpreting that led you to that interpretation?---It was probably recollection rather than - the recollection of events on that night, rather than my interpretation.

PN572

Yes?---My recollection that happened on that night at 10 pm, and that was that there would be - that the union wanted to hold a stop work meeting for a number of reasons on that particular night.

PN573

Now that was your interpretation - your recollection. But it wasn't because anybody said to you we want to hold a stop work meeting, it was because you believed that what they were seeking was in effect, a stop work meeting, wasn't it?---No, that is not correct.

PN574

You say someone from the union said "We want to hold a stop work meeting"?---That is correct.

PN575

Expressly used those words?---That is correct.

PN576

You are conscious, of course, that that is denied by both Mr Fountain and Mr Weissmann?---After reading those statements this morning, yes.

PN577

Yes, all right. If they had said to you "We want to have a meeting with the men to report back on Commissioner Hodder's hearing and to discuss the introduction of the trial", would you have been willing to arrange for them to meet with all of the men at the one time to enable that report back and seeking consultation to take place?---At the time of that evening, given the no notice of the meeting that they were wishing to have at that late stage, without the prior notice to the company, no.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN578

In the circumstances where the shift hadn't started and you agree with me that was the case when the union arrived?---Some of the shifts may have started. I think they start at 10 o'clock, so I think I arrived just - they might have just started, I think.

PN579

Are you saying that because you hadn't been given enough notice, you wouldn't agree to that report back and consultation?---That is correct at that time, yes.

PN580

And you knew that that report back and consultation was relevant to the introduction of a trial of continuous running?---Well, the company's views were at that stage that the trials were about to be conducted, the rosters - the staggered rosters had been put in place.

PN581

You knew, didn't you, at the time when those union officials were there, that the matters that they wanted to report back to the members about and consult them about, namely the continuous running, was either about to or had just commenced?---By the discussions that I had with the appropriate union elements, yes, that is correct.

PN582

Yes. Just tell me this if you can, Mr Whytcross, was there any actual continuous running in the sense of any break period yet arrived at the time the union officials were there?---No, there wouldn't have been, no.

PN583

No. So we hadn't actually moved into the implementation of the trial at the time they were there?---That is correct.

PN584

And they came to you prior to that implementation to report back on the Commission and consult with the men. You agree that is the case?---I agree that they turned up to the security site security, yes.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN585

Yes. See I am not asking you where they were physically. I am asking you, you knew the reason why they were there. You knew that the reason why they were there was to report back on Commissioner Hodder, vis-a-vis the trial, and to consult with the men, vis-a-vis the trial. You knew that?---Upon my arrival I found that out, yes.

PN586

Yes. I appreciate that is what you say. I appreciate that. And the reason for your part that they were to be refused entry for that purpose, was because they hadn't given you the sort of notice you want to get?---The reason they were refused entry is that the company felt that by having stop work meetings during non-meal break periods was condoning - was a form of industrial action and holding a non-company organised stop work meeting.

PN587

You knew that they were coming there wanting a meeting with the men to report back and to consult. You knew that?---I did not know that prior to arriving at 10 o'clock on the Sunday night.

PN588

Yes, I understand. Here you are, you are down at the gate. You knew that that is what they were there for. When you were down at the gate, you knew that?---Yes.

PN589

Yes. And of course, if you had agreed to let them meet with the men, as far as you were concerned it wouldn't have been a stop work meeting, it would have been a meeting permitted by the union - by the company?---Yes, that is correct.

PN590

So what you did by refusing them the opportunity to meet with the men, was to deny them the opportunity to have a meeting which because you approved of it, would not be a stop work meeting?---That is correct.

PN591

Yes?---We offered - we offered them to participate in meetings during the meal breaks throughout the evening.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN592

Yes, and those meal breaks throughout the evening, of course, would be so staggered with the continuous running trial that you would not be able to get all the men together at any one time?---That is correct.

PN593

That is right, isn't it?---Mm.

PN594

All right. So if you had said down there, or you had decided down there and granted, you get there and you didn't know this was going to happen before you got there, if you had said yes, you can have that meeting, it wouldn't have been a stop work meeting, would it?---If the company had have condoned that meeting, then it still would have been a stop work meeting, given that lines - production lines, packaging lines, would have stopped outside the normal meal breaks, yes.

PN595

But it would have been a stop work meeting with the company's condoning it, wouldn't it?---Correct.

PN596

And you would still call it a stop work meeting, would you?---Depended, yes.

PN597

Yes, all right. Now taking you back to the issue of Mr Fountain's suspension, you will recall that soon after Mr Fountain was suspended, the union had sought the opportunity to meet with the employees on site on that issue. Remember that?---I do recall that, yes.

PN598

Yes. And the union had given you a whole week's notice of their desire to attend the site for that purpose. Do you recall that?---I can't recall that it was a week prior to, but - no.

PN599

Well, whatever it was, you had no complaint about the period of notice the union gave you with its desire to meet with the men on the issue of Mr Fountain's suspension?---Well, I can't actually recall them requesting a full site meeting or work area meeting with the employees. I do recall them having a delegates' meeting - requesting a delegates' meeting or ad hob delegates' meetings, but not a work area meeting as such.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN600

But as far as you are concerned, there was no defect in the time of notice that the union had given you about the desire to have that meeting? You don't complain about too short notice concerning that meeting?---Sorry, I can't actually recall the union requesting any such meeting in a work area, whether it be a stop work meeting or otherwise. I don't recall that.

PN601

All right, okay. Well, I will just tell the Commission, there is affidavit material on that and we will just bring that to the Commission's attention. That is in the other - that is another proceeding before the Commission.

PN602

You are aware, aren't you, in relation to Mr Fountain, that the company did make a section 127 application?---Yes.

PN603

Yes. But you have no recollection of the union seeking to have a meeting of the men?---No, I do not, no.

PN604

Yes, all right. If they had given you notice of several days for such a meeting, you wouldn't be complaining about the length of such a notice?---If a meeting could be arranged between employees and members - if it was done within the appropriate meal breaks then the company would have no concerns with that meeting.

PN605

The question, Mr Whytcross, is that if you had been given several days notice of a request for such a meeting, you would not have any complaint about the length of notice you got. Is that right?---Sorry, if you are asking the question - - -

PN606

MR TUCK: I am just concerned, your Honour, the witness seems to be misunderstanding what the nature of the meeting - such a meeting. We go from stop work meeting, Mr Whytcross - - -

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN607

MR HINKLEY: Look, if my friend is going to do this about the witness's response, the witness should be out of the Commission. I don't have any confidence that the witness isn't being encouraged to respond in a particular fashion.

PN608

MR TUCK: Well, your Honour - - -

PN609

MR HINKLEY: I make that application, if the Commission pleases.

PN610

THE SENIOR DEPUTY PRESIDENT: I deny it.

PN611

MR TUCK: Your Honour, I am just - - -

PN612

THE SENIOR DEPUTY PRESIDENT: Go ahead, Mr Tuck.

PN613

MR TUCK: My objection is that we talk about a meeting, one being - and in response to an answer that Mr Whytcross gives that a meeting can be arranged during meal breaks, and then we talk about stop work meetings and then we talk about such a meeting. I am concerned that such a meeting is misleading or is uncertain as to what meeting we are talking about. Are we talking about a meeting arranged during meal breaks or are we talking about a meeting arranged which stops work, and my objection, your Honour, is that with the questions put in that uncertain way of such a meeting, the witness can't understand which meeting is being referred to - which type of meeting.

PN614

THE SENIOR DEPUTY PRESIDENT: The - well, maybe the type is in question, but the meeting is the one over Mr Fountain's suspension.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN615

MR TUCK: That is besides - I don't understand, your Honour, and I can't - and I will say that it won't be able to make use of any answer that the witness gives if we have a question put in terms of "such a meeting" when we are talking about two types of meeting. And we don't know whether it is the meeting scheduled during a meal break by arrangement or a meeting that stops work by arrangement. That is the distinction. I am confused.

PN616

THE SENIOR DEPUTY PRESIDENT: I think - yes, I think I will let the witness fend for himself for a while. You can go ahead, Mr Hinkley.

PN617

MR HINKLEY: Can I just say in relation to that objection, your Honour, that the witness in recent answers has indicated that even if the company gives permission, he would still call it a stop work meeting. I make no complaint about that. I can understand that is the way things are. To visit upon me the implication that a stop work meeting is one with the permission of the company, and that is somehow different to something that is still called a stop work meeting is not without the permission of the company, and to say that I am confusing the witness by speaking of two things at the same time, with respect, is just a little bit harsh. The witness - - -

PN618

MR TUCK: I am confused.

PN619

MR HINKLEY: Well, my friend says he is confused and I don't doubt - I don't - - -

PN620

THE SENIOR DEPUTY PRESIDENT: Well, the explanation isn't adding to the clarity, can I say that.

PN621

MR HINKLEY: Well, can I say that I don't doubt that he is confused granted the objection he made.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN622

THE SENIOR DEPUTY PRESIDENT: I permitted the question.

PN623

MR HINKLEY: Yes, yes, I realise that, Commissioner - your Honour. I realise that.

PN624

THE SENIOR DEPUTY PRESIDENT: Now you have forgotten the question.

PN625

MR HINKLEY: Well, I don't invite the Commission to come to that conclusion, and I will proceed with my cross-examination.

[12.40pm]

PN626

Have I got this right, Mr Whytcross, that if you got several days' notice of the union seeking to have a meeting during working hours to address the employees, then you wouldn't have a complaint about the duration of that notice - the length of time you were given notice?---It is my understanding that, dependant on the circumstances of that particular meeting and the discussion points of that particular meeting, and that is not beating around the bush - that is, if the unions wish to discuss whatever the work trial processes were going to be then yes, but if it is over a possible what the company interprets as an industrial issue in placing work bans then the company would have objections to that, yes.

PN627

I just want you to focus on one issue only, Mr Whytcross, if you will and that is the issue of the duration of the notice. All right? Forget the issues, and - - - ?---Yes.

PN628

Just the duration of the notice. Okay. You had several days' notice of the union's desire to have a meeting during working hours and you would have no complaint about the duration of that notice?---We would have - we would have a complaint with that if we were going to stop our production and packaging.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN629

Yes?---Yes.

PN630

But you wouldn't - your complaint would not be that you haven't given us enough notice of what you want to do, that wouldn't be your complaint?---Our complaint - no, that is correct.

PN631

All right. Well, that is all I wanted to ask you about there. Now part of the answer you gave to that question a little bit earlier just now was that whether or not you were going to allow a meeting during working hours - whether you call it stop work or not, may depend upon what it was the union wanted to do. Is that right?---That is correct.

PN632

Yes. You knew when you were at the gate at least that the union wanted to report back on the Commissioner Hodder's hearing, is that right?---That is correct.

PN633

Do you have any complaint about that being a good reason why the union would want to have a meeting with the men?---I had no complaint with them wanting to have a meeting with the men, no.

PN634

You had no complaint about that?---Not with them wanting to have a meeting with the men, no.

PN635

And that they wanted to have a meeting with the men to report back about Commissioner Hodder, you don't complain about that either?---No.

PN636

No. So the problem of the notice was simply that you hadn't been able - wouldn't be able to do something between that date and the time at which the meeting might occur?---Are you referring to the Sunday - the Sunday night?

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN637

Yes, that is where we are?---The problem with the Sunday night was rolling up at 10 o'clock without giving any notice to the company that they wish to have a stop work meeting for a report back or for whatever other reason, given that packaging lines usually take an hour to two hours to start up of a Sunday night and then they were wanting to hold a full stop work meeting and it was going to cause the company a fair amount of inconvenience and cost in stopping those lines on that night.

PN638

Yes. So what you are saying is that the report back should be prior to the line starting, is that what you are saying?---What I am saying is if a meeting can be planned and arranged, then the company are more likely to be more pro-active in assisting with those report back meetings where we can be as little inconvenienced as possible.

PN639

Yes. You said a moment ago that it was the stopping of the lines that was the problem. Have I got that right?---Part of the problems, yes.

PN640

What was the other problem?---Another problem was that the company felt that the work trials would not be continuing, then the company felt that that was taking industrial actions by having work bans in place by not committing to the work trials.

PN641

But if you had permitted the meeting to take place that wouldn't be industrial action in your mind, would it?---No, it would not.

PN642

No. So far as reporting back on Commissioner Hodder's recommendations are concerned, you have no complaint about wanting to report back, that is right isn't it?---That is correct.

PN643

On that night, if that was the only purpose, what would be the problem in simply having the men come together and having it reported to them what had happened with Commissioner Hodder?---The problem was turning up at 10 pm of a night without any prior notice to the company.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN644

Yes. What it offended you, did it?---That a stop work meeting would be occurring within an hour of the operation actually commencing, yes.

PN645

Assuming you had agreed to it - so it is not a stop work meeting in the sense of industrial action, was the problem that you - they hadn't had the courtesy to let you know in advance, was that the problem?---Normal courtesies should apply as far as the company's views are, yes.

PN646

And that was the problem as far as the reporting back on Commissioner Hodder was concerned, that they hadn't given you the normal courtesy of the sort of notice you want to get?---That was one of the problems, yes.

PN647

And the other problem?---The other problem was that we felt that the industrial action by implying that the work trials did not take place, was a form of industrial action by placing those work bans on and the other issue was the production lines, packaging lines were going to start for approximately an hour to two hours and then be decommissioned again.

PN648

Yes. You expected that there would be industrial action independently of the union officials being at the gate, did you?---Not prior to turning up for the work trials that night and some other activity, no, I had no idea.

PN649

So what was the industrial action that you were concerned about at the time they met you at the gate - what was the industrial action?---Just the mannerisms of the two union delegates when I was asking why they were actually on site or wanting to gain entry to the site at 10 pm of a Sunday night without normal courtesies being applied. I felt that it was quite intimidating.

PN650

What was the industrial action that you expected?---I expected them to recommend to the members that the work trials and staggered meal breaks are not adhered to.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN651

Yes. All right. That was your fear?---That was the fear, yes.

PN652

You feared that when they spoke to the members they would say, "We suggest you shouldn't do the trial", or whatever?---Correct. Yes.

PN653

And did you think at that time that if they didn't speak to the members, the members would not take industrial action?---No.

PN654

So you thought that even if they didn't speak to the members, industrial action was what - certain, or - - - ?---Could take place, yes.

PN655

Could - just a possibility - or higher than that?---Well, I think it was - irrelevant what was going to happen - I think it could have happened whether they were on site or not on site by other means, but - and they made - they pointed that out to me, that the meetings if they didn't happen on site that they would happen off site and they would just pull them off, so - - -

PN656

But even if they hadn't met with the men, you expected that the men would be taking industrial action in the sense of not implementing the trial, didn't you?---By not adhering to the work trials, yes.

PN657

Yes. So whether they had a meeting or not you expected that to be the case?---I wasn't 100 per cent, but yes.

PN658

Yes. You expected it?---Yes.

PN659

Did the company do anything to report back to the men about Commissioner Hodder before the trial commenced - - - ?---Before Sunday?

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN660

I am sorry, I will just finish it - before the trial commenced on Sunday the 29th?---Certain work areas had held individual team meetings in relation to the rosters that were being put up, yes.

PN661

Yes. I am interested to know whether or not the company had reported back to the men about Commissioner Hodder's hearing prior to the implementation or proposed implementation of the trial on the Sunday 29th?---Yes. The company did report back to members via the work area managers.

PN662

Yes?---- - - in regard to the work trials that were to commence on that Sunday night, yes.

PN663

And of course on the Sunday night, when the union sought the opportunity to do that, their access was denied?---On the grounds previously stated, yes.

PN664

All right. Now you said one of the grounds had to do with interrupting production. Now can you tell the Commission what you mean by that?---With the lines when production and packaging start of a Sunday night it usually takes approximately an hour for the lines to commence the steam and all the packaging lines to actually get up and running if you like by the time all the beer comes through the lines and so on. So it probably takes an hour and a half to get actually the first carton off the - off the packaging lines and that is what we say as starting up, and then for that to cease again, the process then continues and the more breaks we have the less product quality, the less - and the more likelihood of issues on the packaging lines that actually occur.

PN665

So say there was a meeting that theoretically we say that took 30 minutes. If that meeting was held before the start up time would that mean that the line start up time would be delayed by half an hour plus the one and a half hours to start it up, that you say that is two hours?---It wouldn't have been just the half an hour we would have delayed start up by half an hour.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN666

Yes, all right. And if it had occurred after the line had started up, again it would half an hour delay?---Approximately, yes.

PN667

All right. Commissioner, excuse me for just a moment. Going back - rather starting at that night of the 29th, when you arrived at the gate where Mr Weissmann and Mr Feldman were, was Mr Levein already there?---Yes, I think he was. In the vicinity anyway. Yes.

PN668

But he wasn't present where those two people were?---My recollection is I will be honest, not too sure.

PN669

You are not sure whether or not he was there when you arrived, or he came after you arrived?---I can't recall whether he was inside the turnstiles or outside the turnstiles.

PN670

When I say, "there", I mean in the group of people of the union officials and yourself - was he there before you arrived or after you arrived or can't you remember?---No, he was on site before I arrived.

PN671

You see, the site is a big place, okay. Let's do a bit of pin-pricking here and get down to the security hut thing and here you are with the other - the union officials, I just want to know whether or not when you arrived with the union officials physically, where was he - already there or did he come later, or you can't remember?---I can't recall whether Steve Levein was actually in attendance with James Weissmann and Dominic Fountain on that night when I arrived.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN672

When you arrived, all right. Now could I take you to paragraph 47 - can I ask you to have a look at paragraph 8 and 9, or rather paragraph 9, of Mr Weissmann's statement. Perhaps it is better to incorporate paragraph 8 of Weissmann's statement too, in that. Now I am not going to ask you about every little detail in there and, your Honour, I don't challenge my friend's views about not putting things in these circumstances. Could I just confirm with you though that Mr Weissmann said words to you to the effect that it is not practical to deal with the matters they want to deal with in staggered breaks - meaning the staggered breaks that would occur if the trial commenced. Do you recall?---Yes, his request was definitely to hold a full meeting of all members, yes.

PN673

He did?---Mm.

PN674

And he also said to you, amongst other things, that it is simply not possible to be able to deal with the issues that they wanted to report back on and consult on by using staggered breaks?---I can't recall him using those words, no.

PN675

And you can't recall those words being said at all?---Not words to that extent, no.

PN676

Yes. All right. I was taking you to paragraph 48 of your statement and here we are on 30 September do you have, and you might want to re-read that just to remind yourself about it, do you consider that Mr Eyles' - E-y-l-e-s apology was accepted, is that the position, isn't it?---That is correct, yes.

PN677

And there is no intention to make any complaint granted that apology has been accepted?---Yes, that is correct.

PN678

All right.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN679

THE SENIOR DEPUTY PRESIDENT: If you are moving on to another paragraph, I will adjourn.

PN680

MR HINKLEY: Yes, I must say, your Honour, having got these last night I am having a bit of trouble tracing, especially the note is written to badly but we will get there.

PN681

THE SENIOR DEPUTY PRESIDENT: Very well. I will adjourn until 2 pm.

LUNCHEON ADJOURNMENT [1.00pm]

RESUMED [2.09pm]

PN682

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Tuck.

PN683

MR TUCK: Your Honour, just before my learned friend starts, I have just provided a copy of a statement to my learned friend from a Brendan Richardson.

PN684

THE SENIOR DEPUTY PRESIDENT: Yes.

PN685

MR TUCK: Your Honour, I understand my learned friend's desire to have the opportunity to read this material. It is not a long statement but there are a number of exhibits there. Mr Houston is available this afternoon and Mr Whytcross presumably will finish this afternoon and my friend indicates that it is likely that we will also finish with Mr Houston. I suggest that we then adjourn the matter until tomorrow morning, would be my suggestion, your Honour, to give my learned friend an opportunity to digest this statement overnight and I am confident that I can get through his witnesses in a timely fashion tomorrow morning.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN686

THE SENIOR DEPUTY PRESIDENT: Well, that sounds a practical suggestion.

PN687

MR HINKLEY: Would your Honour excuse me a moment?

PN688

THE SENIOR DEPUTY PRESIDENT: Yes.

PN689

MR HINKLEY: Your Honour, my learned friend - we were just chatting about the desirability of finishing by close of business tomorrow which I think is what the Commission has in mind.

PN690

THE SENIOR DEPUTY PRESIDENT: Certainly.

PN691

MR HINKLEY: Yes. And our brief little chat has got us to a suggestion that the Commission, if it were convenient and available, might commence at 9.30 tomorrow.

PN692

THE SENIOR DEPUTY PRESIDENT: Oh certainly.

PN693

MR HINKLEY: And, your Honour, my friend has indicated how long he might be and made some suggestions about the length of submissions. It might be convenient, your Honour, if it were possible, for all the witness evidence to be in before the luncheon adjournment. Who knows what the timing is like. At the worst scenario, your Honour, might be to ask your Honour perhaps to sit on a little bit longer tomorrow afternoon if we don't get there.

PN694

THE SENIOR DEPUTY PRESIDENT: I would be prepared to do that.

PN695

MR HINKLEY: Yes, thank you, your Honour.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN696

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Hinkley.

PN697

MR HINKLEY: Now, Mr Whytcross, can I take you to page 8 of your witness statement and that is at paragraph 47. I think there is probably just a grammatical mistake about who is referred to in the first sentence of that para 47. Mr Weissmann, it would appears, just comes out of nowhere there. Can you just tell us what it is you had meant to have typed in there?---That is correct.

PN698

At 1 am, David Barker, the Warehouse Supervisor told James Weissmann -

PN699

was a typing error by the typist there.

PN700

So is this what we do: We delete:

PN701

Mr Weissmann asked -

PN702

all of that?---That is correct.

PN703

So it reads:

PN704

At 1 am, David Barker, Warehouse Supervisor, requested Peter -

PN705

yes. Can I just check at the front of your statement, Mr Whytcross, I must say, I hadn't been alert to this, but the first paragraph I think mistakenly refers to you as Victorian Manager, Operations Support. You are in fact Manager, Distribution, is that right?---That is correct.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN706

So that that first paragraph numbered 1, you would be the Victorian Manager, Distribution, is that right?---That is correct.

PN707

Yes, thank you. Good. Now, can I take you to paragraph 54 of your statement. As I understand it, paragraph 54 and 55 refer to two different meetings you attended that day, that is right, is it?---That is correct.

PN708

Yes. So that paragraph 54 is:

PN709

A meeting convened for all day and afternoon shift employees.

PN710

?---That is - - -

PN711

Also present were representatives of the three respective unions.

PN712

Did you have a meeting with each of the shifts on that day?---That is correct.

PN713

And when you refer to representatives of the three respective unions, who are you talking about?---I am talking about the LHMU, the CFMEU and the ASU.

PN714

Yes, thank you. And when you say representatives of them were present, who are you talking about there?---Some site delegates decided that they wanted to participate in those meetings or at least hear the company's views in respect to those meetings.

PN715

So there might be some site delegates who weren't actually on the shift?---That is correct.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN716

And you allowed them - or accommodated them being in attendance. All right. You didn't invite anyone from the union as such to attend those meetings?---Did not, no.

PN717

And what you handed out at that meeting was DW9, that is the case, yes, it is, is it?---I am just checking that so - - -

PN718

Oh I am just going by what you said?---You are right. Yes, on what I said, yes.

PN719

All right. And if you just cast your eye over that DW9, I particularly want to take you down about half down the page, heading "Work Trial of Continuous Running", sorry, have you got to it yet or - - -?---Yes.

PN720

You see "Work Trial of Continuous Running" there about the middle of the page?---Yes.

PN721

And at number 4, arabic 4:

PN722

During proceedings in the Commission on the 27th, the company advised LHMU -

PN723

etcetera -

PN724

... the proposal was rejected. Given the differences between the parties the Commissioner did not issue a recommendation.

PN725

That 27th of course was the Friday before the trial was intended by the company to start on the 29th?---That is correct.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN726

And it is the Tuesday of the following week, as you say in paragraph 54, that you had that meeting and told the employees of this?---That is correct.

PN727

A meeting to which you hadn't invited union representatives?---That is correct.

PN728

Had you told them that you were going to conduct such meetings?---It was a - no, I did not, no.

PN729

Would you have been objecting to their being present union officials or representatives at that meeting?---No, none whatsoever, as I said we did have some present.

PN730

You were aware - sorry, when you are saying "did have", you are talking about the various delegates on site?---Correct.

PN731

You knew, of course, on the night of the 29th, the Sunday, that the union was eager to talk to the men?---At that stage, no, I was not aware of that.

PN732

Well, by 1 October, you must have been aware that on 29 September the union officials attended at the security hut and were eager to talk to the men?---On that night, yes, that is correct.

PN733

So you knew that by 1 October?---Correct.

PN734

Because one day follows the other unfortunately?---Yes, that is true.

PN735

And nonetheless you didn't invite any union representatives to attend that meeting on 1 October?---No.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN736

Were those meetings on 1 October advised to the men on that date?---Yes, they were.

PN737

Immediately before they commenced on each occasion?---Correct.

PN738

So you sort of went out to the line or someone did and said, "Oh, we are going to have a meeting now", for each shift so that you could explain your position to them?---Notified the warehouse manager that we would wish to have a short team brief to give the company's views on where we were at as far as continuous running and our interpretation of the recommendations that were put down.

PN739

Was that little briefing that you talk about, was that conducted during work time?---Some of it was, yes.

PN740

And some of it wasn't?---No, some of it wasn't. Some of it was over their breaks.

PN741

During the breaks?---Yes, at change of shifts, yes.

PN742

During breaks at the change of shifts?---Or at the change of shifts.

PN743

Or at the change of shifts?---Yes.

PN744

When there is a change of shift, how much overlap is there between the shifts?---I think there is 17 minutes.

PN745

Of paid time for both shifts?---Yes, that is - for some employees. Some employees there is no crossover so there is a gap there of about 15 minutes.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN746

So between stopping the line to have the report, having the benefit of crossover time of 17 minutes for some shifts or doing it during the breaks, you covered all of the report backs?---Correct.

PN747

And you hadn't offered that facility to the union to report back on what happened at the Commission?---At that stage, no.

PN748

Well, not at any stage in relation to Commissioner Hodder?---No, that is correct.

PN749

You agree with me, yes. You do say in that paragraph 4 of your exhibit 9, that is under the heading "Work Trial" that you and I just read through a little that the Commissioner did not issue a recommendation. Did you tell them anything about the Commission and its views about a recommendation?---Yes, certainly did.

PN750

Yes, what did you tell them?---Verbally my interpretation of the hearing that day was that the Commission was willing to put down a recommendation that the work trials were halted but the company needed some assurance off the unions that the work trials, in they were delayed for one week, that the unions would commit to those work trials - - -

PN751

Well, just a moment, Mr Whytcross, I am asking you about what you told them in relation to the Commission and recommendation, that is all I am asking you about?---Yes.

PN752

Not your views about work trials?---No. Sorry that is what I was actually answering.

PN753

THE SENIOR DEPUTY PRESIDENT: That is what he was saying.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN754

MR TUCK: Well, your Honour, I object to my friend cutting the witness off in that answer.

PN755

THE SENIOR DEPUTY PRESIDENT: Yes, well, it has happened. The witness knows where he was, I think he is not inconvenienced but he was giving a direct answer, Mr Hinkley.

PN756

MR HINKLEY: Yes, I appreciate your Honour's - and it must have been a misperception on my part, your Honour, I am not un-prone to those sorts of things. Now, can I just take you to your exhibit - I am sorry, do you have a copy of Mr Houston's statement there with you?---Not with me, no, sir.

PN757

Perhaps if my friend has got a spare one we might have Mr Whytcross go to it and it is the very last exhibit in that statement, Mr Whytcross, so really if you go to the back page, all together, right down the back?---Yes.

PN758

And you come back in a few pages, perhaps I could talk you backwards through it. If you take the last page?---Yes.

PN759

Is that in your - at the bottom on that page in your document, does it say "Adjourned Indefinitely, 3.20pm" at the bottom in caps, bold, the very last page. It doesn't look to me from this distance it does. I don't know what your Honour's - - -

PN760

THE SENIOR DEPUTY PRESIDENT: It doesn't on this copy either.

PN761

MR HINKLEY: No?---No, it doesn't, sir.

PN762

My friend and I have sorted this out, your Honour, I appear to have got a wrong page and that alerted me that there might be a wrong page and I think we are both quite content to say that the page I am about to hand to the Commission and Mr Whytcross is indeed the final page of - - -

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN763

THE SENIOR DEPUTY PRESIDENT: Page, of the transcript.

PN764

MR HINKLEY: - - - the transcript on that day, your Honour. I must tell your Honour that from what my friend has said, I think there may be some problem about other pages because I think there is a problem with some of his pages. The important thing is that your Honour have the right document really and that any witness is able to go to it. I don't say this complainingly at all but it may be that we would ask the opportunity to have a look at the copy your Honour has got.

PN765

THE SENIOR DEPUTY PRESIDENT: To see that it is - - -

PN766

MR HINKLEY: Thank you, your Honour. Can I just take you - I have given you that last page there which you will see has caps in bold and - large caps rather, "Adjourned Indefinitely, 3.20pm?---Yes, sir.

PN767

Now, if you go back to the - your Honour, it might just be simpler if the witness were to hand me a copy of what he has got and then we can make sure the next few pages are all right.

PN768

THE SENIOR DEPUTY PRESIDENT: All right then.

PN769

MR HINKLEY: Yes, I am sorry about. Yes, you can hand that back, your Honour. I think the original copy of that was infected with the same virus that mine was, simply this, that the final page - Mr Whytcross, that bundle that you have got which is Mr Houston's statement?---Yes.

PN770

The very final page that I have taken you to, I ask to put that aside from you mind entirely?---All right.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN771

The piece of paper we did hand you I can tell you should be the final page rather than the one that is there and I want to take you to the second last page. If you pick up the - - -?---Yes.

PN772

- - - Houston document and go to the very end of it, ignore the final page and pretend that the page I gave you is really the final page, okay, and then go back one further page, that is - yes, and you will see there that the page you are looking at, at the very bottom has the numbers in left hand margin, paragraph number 292?---Yes.

PN773

The Commissioner. And if you go the next page, the one I handed you, you will see the top line starts:

PN774

Have rights which they can exercise

PN775

?---Yes.

PN776

Yes, all right. Now, you might just re-read that paragraph 292 if you haven't re-visited it?---Yes.

PN777

And you will recall that the Commissioner, as you can see, did make a recommendation which appeared on transcript?---Yes.

PN778

And the position was that the company was not prepared to accept that recommendation, that is right?---Correct.

PN779

And as you understand it for that reason the Commissioner said there is no point in issuing it then?---That is correct.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN780

And you will see that at paragraph number 300:

PN781

Not much point in issuing it.

PN782

Now, when you - I withdraw that. Well, I don't now. When you go to that exhibit 9 in your own witness statement and perhaps you can hand Mr Houston back now. If it is convenient, your Honour, my friend can hand it to the solicitor for the other side.

PN783

THE SENIOR DEPUTY PRESIDENT: Yes.

PN784

MR HINKLEY: Right. And perhaps could you incorporate with it that page I handed you? So we have got the position you know the Commission set a recommendation, the company said, no, the Commission said therefore I won't issue it. You appreciate where we are, yes?---Yes, sorry.

PN785

Good. That is all right. And you will see in that paragraph 4 of your exhibit 9, the document speaks of the Commissioner did not issue a recommendation?---Correct.

PN786

Which indeed is the case?---Yes.

PN787

The Commissioner didn't. Did you tell them that the Commissioner had made a recommendation but the company had refused it?---I did tell them that the Commission had made a recommendation.

PN788

Yes?---That the company sought some assurances from the union that if we delayed the work trials for one week, that they could happen the week following, and I also communicated to them that the unions would not be a party to that so therefore there was no recommendation put down given that both parties disagreed.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN789

Well, the transcript before the Commission will explain itself for what it is but did you give - I withdraw that. You obviously didn't give the union an opportunity to explain these circumstances before the Commission for itself through its officials. You didn't give that opportunity?---Well, we don't offer that opportunity but if the unions wished to conduct those meetings then it is for the unions to.

PN790

Well, you knew that they wanted to on the 29th, didn't you. You knew they wanted to, yes, you did?---At that night?

PN791

Yes?---On that night at 10 o'clock, yes.

PN792

And here you are on the 1st giving your view of events. You didn't contact them and say, "Oh, look, now that we have got enough notice, you can come along together with us or separately and give your view". You didn't do that, did you?---Not at 10 o'clock at night, no.

PN793

Well, just slow down. I mean here we are on the 29th, you know the union wants to, amongst other things, report back. We are agreed on that?---Yes.

PN794

On 1 October you give a report back from your perspective, that is right?---Yes.

PN795

You knew the union wanted to give a report back from its perspective, yes?---Yes.

PN796

You didn't give an opportunity at all, did you?---Not between those hours, no.

PN797

Well, you didn't give an opportunity on Tuesday the 1st either when you did it?---If the unions had of wanted to give a report back meeting and spoke to the company about giving a work area presentation with due notice then we would have been accompanying that.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN798

You are not really telling the Commission that on 1 October you did not know that the union wanted to make a report back about Commissioner Hodder's hearing. You are not telling the Commission you didn't know that, are you?---No, I am not, no.

PN799

You did know it, didn't you, ever since the Sunday you knew it?---Yes.

PN800

But you didn't give them the opportunity, did you?---Well, we don't make the offer, no.

PN801

Yes. All right. Now, can I take you to the position there on Friday 27 October, do you remember - I am sorry, your Honour, September, you remember that - and this is the Hodder hearing, this is the day that Commissioner Hodder had his hearing and you remember this occasion - I think you are nodding?---Yes.

PN802

Now, your trial, which you were hoping to run on the 29th, that was to be on line B2, was it?---That is correct, sir.

PN803

And B2, apart from operating employees, has what, one or two distribution employees involved?---Possibly two to three, yes.

PN804

And their job is to pick up at the end of the production line and - - - ?---Correct.

PN805

- - - operating line and get it out?---That is correct.

PN806

Now, it is the case, isn't it, that Friday 27 September, the day of the hearing before Commissioner Hodder, the B2 line was on a rostered day off?---I couldn't be certain with that, sir.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN807

All right. The plant doesn't operate on Saturday and Sunday before the night shift takes over late on Sunday night?---In some instances they do, sir.

PN808

Yes. But it didn't on this weekend, did it?---It may not have, no.

PN809

So generally we can say, can we, that apart from some instances, the plant doesn't work on Saturday and Sunday, apart from the shifts starting normally late Sunday night?---That is correct, yes.

PN810

That is right, yes. You are not able to tell the Commission whether or not there was a rostered day off for the B2 line on the Friday?---No, I could not, sir.

PN811

That is the Friday the 27th?---No.

PN812

All right. You can't?---No, I could not, sir.

PN813

Yes, all right. Now, can I go to page 10 of your witness statement. The thrust of this part of your witness statement, 59 through to 68, is your apprehension that there might be a 24 hour stoppage. Have I got that right?---That is correct.

PN814

Anyone from the union suggested to you that there might be?---At that stage, no, sir.

PN815

When you say at that stage, when are you talking about?---Well, no, sir, no.

PN816

Your apprehension is some fear that you have got that it might happen?---That is correct.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN817

That is right. No-one from the union has ever suggested to you that it would happen?---No, they have not.

PN818

No. All right. Anything the men said that suggested to you that there be a 24 hour stoppage?---No, sir.

PN819

No. The calculations you have done here, are they based on a 24 hour stoppage across the site?---Yes, sir.

PN820

And that is all of Abbotsford and Altona?---Correct, sir.

PN821

All right. And in paragraph 62, you speak of a 24 hour stoppage impacting on servicing customers. As a result you would lose approximately 2.5 for each day that the stoppage continues. Is that 2.5 million loss of income for the provision of the product to customers?---It could be to that amount, yes, sir.

PN822

And it is calculated by reference to the loss of income in relation to the beautiful products you sell to customers?---Yes, it is based on the cost of goods that we sell to a customer, yes, sir.

PN823

No, it is based on, is it, the price that the customer pays?---That is correct, sir.

PN824

Yes, all right. Now, paragraph 63, where it speaks of 1.7 million per day of product, is that a reference to the cost of producing the product?---That is correct, sir, or sorry, that is the cost of that product.

PN825

I beg your pardon, yes, so - - - ?---So there is $1.7 million worth of product that could be produced during those particular hours.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN826

So that you would lose 1.7 million - I withdraw that. In that 24 hours you would expect to produce product to the cost to you of $1.7 million per 24 hours?---Correct.

PN827

Yes. All right. You speak then of VB stubbies and overnight shift to make up loss of that production. Is that a whole - is that based upon the production lines producing VB stubbies for a period of time, continuously producing just VB stubbies?---That is correct. That would be to replace the 24 hour stoppage time and dependent on the day that the stoppage did or could occur, that we may have to do that on overtime over the weekend which could incur those costs between 65 to 70 thousand.

PN828

And that is the cost of a complete overtime shift to rectify that?---Correct.

PN829

Is it true to say that if you deduct that 65 or 70 thousand dollars from the 1.7 million, the remainder would be able to be produced without overtime?---Yes, that is true.

PN830

So you would be able to rectify the loss of $1.7 million production by production during non-overtime shifts plus production during one overtime shift to the maximum value of about $70,000?---Sorry, sir, you are probably interpreting a little differently than what it means is the 65 to 70 thousand dollars is the labour cost that we would incur additionally. The value of the product is the $1.7 million in stock that we would be able to produce in that particular period of time and it is not relevant to the wages incurred.

PN831

But is it the position that the loss of $1.7 million in product can be overcome by non-overtime shift work plus overtime shift that will cost you a maximum $70,000?---Yes, we could still make the $1.7 million worth of stock on a Saturday for the 65 to 70 thousand dollars.

PN832

You wouldn't be able to increase the production on the line at all during non-overtime periods?---I would think so, sir.

**** DAVID JOHN WHYTCROSS XXN MR HINKLEY

PN833

No, all right. So it really means you can recover the $1.7 million cost of product - I withdraw that. $1.7 million of product not produced if you can get an overtime shift up to the value of 70,000?---Well, it is hypothetical because we may require that Saturday to do other volume anyway so it is - we are really not gaining, we have lost a complete day and we are never going make up that complete day if we require the volume.

PN834

Well, it may be hypothetical, but you do say you would have to have a complete overtime shift to overcome it and that would cost you $70,000?---That is correct.

PN835

And you don't resile from that?---No.

PN836

You are not saying you are not right there?---No.

PN837

No. Okay. Yes, thanks Mr Whytcross.

PN838

THE SENIOR DEPUTY PRESIDENT: Any re-examination?

PN839

MR TUCK: Just a couple of questions, your Honour.

<RE-EXAMINATION BY MR TUCK [2.37pm]

PN840

MR TUCK: Mr Whytcross, can I just drawn your attention to DW3. You were asked questions relating to Mr Fountain's knowledge of a meeting that had been re-scheduled for Thursday, 19 September. What is DW3?---DW3 is a letter that was sent to James Weissmann, a facsimile sent to James Weissmann on the subject of continuous running from Steve Levein in respect to notifying them that we have re-scheduled the business process meeting to review work area meetings on continuous running and work through issues raised to Thursday 19th at 2pm per the request of Trevor Veenendaal on 16 September 2002. The meeting will now be held on room 2 of the Abbotsford learning centre.

**** DAVID JOHN WHYTCROSS RXN MR TUCK

PN841

And who is James Weissmann?---James Weissmann is the Manager of Operations Support, Victoria. Sorry - I thought you said James Houston, sorry. Sorry, sorry. He probably wishes. I hope he is not listening. James Weissmann is the union organiser for the LHMU, sorry.

PN842

Thanks, Mr Whytcross. Now you were asked questions in relation to 29 September this year and you have given evidence in your statement, starting at paragraph 32, in relation to those events and in one of your answers you described that you would expect the normal courtesies to apply. What do you mean by normal courtesies?---Normal courtesies, when there has been a request for a meeting either with employees or with the company, there is, at least in the past, a phone call made to the appropriate managers or company industrial relations officers through our HR department that a meeting was wished to be held by the unions.

PN843

And you were asked questions in relation to DW9, being your flyer, and you gave evidence about meetings held on 1 October. Do you recall that evidence?---I do.

PN844

Did Mr Weissmann or Mr Fountain follow up with you after 29 September and ask for another report back meeting?---They did not.

PN845

And on the evening of 29 September, did Mr Weissmann and Mr Fountain in fact conduct the meeting?---They did.

PN846

How long did that meeting go for?---Approximately 35 minutes.

PN847

Were you aware of what was discussed in that meeting?---After the event, yes.

PN848

And what was reported to you that was discussed at the meeting?---It was reported to me as such other than when we were to commence the work trials and staggered meal breaks. Some employees who were on those staggered breaks handed the supervisors a letter stating that their position on not adhering to the company's roster on staggered meal breaks.

**** DAVID JOHN WHYTCROSS RXN MR TUCK

PN849

And the letter that you talk about, is that DW8, is it?---Yes, it is.

PN850

How many of those letters did you receive?---Approximately six, all told, from within distribution.

PN851

Are you aware of how many of that type of letter was received by the company?---Approximately nine to 10.

PN852

In addition to the six from distribution?---All up there was nine to 10.

PN853

No further questions.

PN854

THE SENIOR DEPUTY PRESIDENT: Very well. Thank you, Mr Whytcross. That concludes your evidence. You are free to go or stay as you wish.

<THE WITNESS WITHDREW [2.43pm]

PN855

MR TUCK: Your Honour, could I ask for a brief, five minute adjournment just to speak briefly to Mr Houston?

PN856

THE SENIOR DEPUTY PRESIDENT: Yes, certainly. I adjourn for five minutes.

SHORT ADJOURNMENT [2.44pm]

RESUMED [2.52pm]

PN857

MR HINKLEY: Just before my friend calls Mr Houston, your Honour, my learned friend very kindly has agreed to overcome an evidentiary thing that might have stuffed us around, if I could say that, and that is that it is accepted that 27 September was a rostered day off for the B2 line.

PN858

THE SENIOR DEPUTY PRESIDENT: I see, yes. Yes, Mr Tuck.

PN859

MR TUCK: Your Honour, I call Mr James Houston.

<JAMES HOUSTON, SWORN [2.54pm]

<EXAMINATION-IN-CHIEF BY MR TUCK

PN860

MR TUCK: Is your name James Houston?---Yes, it is.

PN861

And you are the Victorian Manager Operations Support?---Yes.

PN862

And you are employed by CUB at 4-6 Southampton Crescent, Abbotsford?---Correct.

PN863

Mr Houston, have you prepared a statement for these proceedings?---Yes, I have.

PN864

Do you have a copy of the statement with you?---Yes, I do.

PN865

Is that statement true and correct?---Yes, it is.

PN866

Are the exhibits to which that statement refers the exhibits attached to that statement?---Yes, they are.

PN867

I tender the statement and exhibits, your Honour.

PN868

THE SENIOR DEPUTY PRESIDENT: Any objection?

PN869

MR HINKLEY: No, your Honour.

EXHIBIT #CUB3 WITNESS STATEMENT OF JAMES CAMERON HOUSTON WITH ATTACHMENTS

**** JAMES HOUSTON XN MR TUCK

PN870

MR TUCK: Just a couple of other ones. Can I ask that you be shown this document? This is a document that was handed up last Thursday, your Honour - Wednesday. Mr Houston, are you able to identify that document?---Yes, I am.

PN871

What is that document?---That document is the presentation that I put the union through in a meeting in August - sorry, September.

PN872

THE SENIOR DEPUTY PRESIDENT: Was that marked exhibit CUB4?

PN873

MR TUCK: I think it was marked - it was marked, your Honour.

PN874

THE SENIOR DEPUTY PRESIDENT: I think it would be CUB4.

PN875

MR TUCK: That is correct, your Honour. It was marked for identification exhibit CUB4.

PN876

THE SENIOR DEPUTY PRESIDENT: Yes. Well it is now tendered formally and I take it there is no objection, Mr Hinkley?

PN877

MR HINKLEY: No, your Honour.

EXHIBIT #CUB4 PRESENTATION BY MR HOUSTON TO THE UNION IN SEPTEMBER

PN878

MR TUCK: I can't recall, your Honour, whether the document marked for identification CUB1 was shown.

**** JAMES HOUSTON XN MR TUCK

PN879

THE SENIOR DEPUTY PRESIDENT: CUB1 was the heads of agreement, was it not?

PN880

MR TUCK: That is right. I don't know whether Mr Whytcross identified that document or not. If he didn't, I would ask that it be shown to Mr Houston so we can formally have it identified and marked as an exhibit, your Honour.

PN881

THE SENIOR DEPUTY PRESIDENT: I didn't think it was marked for identification. This is a document prepared by the company and presented to the union.

PN882

MR TUCK: CUB1 I understood that it was, your Honour. It was CUB1.

PN883

THE SENIOR DEPUTY PRESIDENT: It was certainly CUB1 and in the list attached to the transcript, it is not marked for identification so just to make it plain, it is now accepted in any event, whatever is the situation.

PN884

MR TUCK: Thank you, your Honour.

PN885

THE SENIOR DEPUTY PRESIDENT: And it is CUB1.

PN886

MR TUCK: Mr Houston, slide show talks about the introduction of continuous running and I wonder whether you would be so kind as to explain to his Honour the rosters that you prepared, which appear in that slide, and how those rosters represent the introduction of continuous running?---Sure. If I start with the B1 example, down the vertical side of the page are the positions on the packaging line on B1; across the top of the page horizontally - - -

PN887

What is B1, Mr Houston, if I can stop you there?---B1 is one of our boxing lines at Abbotsford.

**** JAMES HOUSTON XN MR TUCK

PN888

Yes?---Across the top of the page is the hours for one of the shifts from 6 o'clock in the morning til 2 o'clock in the afternoon. The dark shaded area - if I take you down de-pallet at number one, the dark shaded area is where that operator is operating that machine during the shift.

PN889

What is that position?---That position is a person operating a de-palletiser, which takes in empty glass bottles and removes them off pallets onto the line.

PN890

And can you explain to his Honour what that person's activities are during a shift?---The person's activities are essentially monitoring that the automatic process of de-palletising is occurring successfully and that if any bottles fall over in the process, that those bottles are stood up.

PN891

Yes?---Okay. You will see at the time line 9 o'clock for de-pal number one, there is a light shaded area there and that is when the de-palletiser operator takes their 20 minute meal break. During that 20 minute meal break, the de-pal operator number two would cover the operation of de-palletiser number one as well as continue to operate de-palletiser number two.

PN892

Are those two machines located near each other?---They are located in a manner where we believe that that would be - that both operations would be able to be monitored.

PN893

Why do you believe that?---Because as I stated before, the operation of the de-palletiser is one of monitoring and standing up bottles; it is not one that requires significant input from the operator. Following the 20 minute meal break on de-palletiser number one, de-palletiser number two then takes their 20 minute meal break and the de-palletiser operator number one then operates both de-palletisers. When both of those individuals have had their breaks, again you can see a period of time where both are back operating their respective machines until the 12 o'clock meal break and the same situation occurs. That situation is then reflected through the filler operators, the label operators, the corner and floor men and so on and so forth as we go down the page.

**** JAMES HOUSTON XN MR TUCK

PN894

Can I just you, before you go on, what happens if de-palletiser operator number one wanted to go to the toilet between 6 am and 9 am?---At present, there would be another operator on the line that would relieve that person.

PN895

Right. That is - - -?---That is common practice, that when people are taking a smoke break or a toilet break that they will be relieved on their machine.

PN896

And who would relieve them?---I can't be specific on B1 but it may very well be that if it was the de-pal operator number one, de-pal operator number two may cover that position.

PN897

Right. And the filler positions, the filler operators, what do they do?---Again, the filler operators, apart from starting and stopping the machine, are monitoring the operation of the filler to make sure that it is performing correctly.

PN898

Okay. So it would just mean filling the stubbies?---So it is filling the stubbies, yes.

PN899

And the labellers?---The label operators are loading magazines with labels, so putting in labels onto magazines.

PN900

THE SENIOR DEPUTY PRESIDENT: Which are automatically applied to the - - -?---Which are automatically applied onto the labeller and they are also making sure that obviously glue is being applied to the label as well.

PN901

MR TUCK: Is that automatic?---The glue is a bulk system, yes.

PN902

And he corner position?---The corner position is a position on the line where bottles that have fallen over after going to the pasteuriser are stood up prior to entering the singliser and being presented at the labellers.

**** JAMES HOUSTON XN MR TUCK

PN903

All right. And if we go down, can you explain to his Honour what the shrink operators are?---The shrink wrapper machine is a machine that encases six bottles of beer in some plastic.

PN904

And that is again automatic?---The loading of the shrink from reel is required to be undertaken in a manual manner but once that has been loaded on and the machine is started, the bottles are fed through automatically and the shrink wrap is placed around the bottles automatically.

PN905

And how often is that magazine replaced?---I can't tell you off hand exactly how often that is replaced; it might be once or twice a shift at the most.

PN906

The packer?---The packer operator - well the packing machine actually puts the cartons, the cardboard carton, around four six packs of beer and the packer operator is required to load carton blanks into a magazine that then wraps around the four six packs.

PN907

And how often does he have to load the machine?---The machines on B1, they would have to load fairly regularly. I would expect that running maybe at 50 cartons a minute. The carton packer operator may very well be loading a stack of cartons every five minutes.

PN908

And the barman position?---The barman position is one where it is a cleaning role and also making sure that the pre-mix or the post-mix, sorry, for the soft drink machines are available for the operators when they take their breaks.

PN909

And in relation to packer one, packer two and the barman, you have got the relief coming from the barman as opposed to the other packer. Why is that the case?---Essentially because there is the need to restack the cartons regularly on the packing machines, it was seen as something that might be unfeasible to have one person trying to load a magazine on two packers so therefore, because of the nature of re-feeding the empty cartons for packing, there was seen to be a need to have one operator operating one machine.

**** JAMES HOUSTON XN MR TUCK

PN910

And the barman, whilst he is operating the packing machine, why do you say that the barman would be able to do both that role and the role of barman?---Because I don't think we believe there is a need to have a barman continuing to clean the lunch room for a full eight hour shift. We believe there is a period of 40 minutes twice per shift where the lunch room can be left without being mopped and without the post-mix being kept up to the drink machines.

PN911

THE SENIOR DEPUTY PRESIDENT: That is where this one seems to differ from most of the others. There is a period of time when the job isn't being performed?---In the barman's role?

PN912

In the barman's role?---Absolutely correct.

PN913

MR TUCK: And the palletiser role? Can you explain to his Honour what that is?---The palletising role is one where full cartons are put onto pallets in layers, so there might be 10 or 12 cartons a layer and it is a machine that actually forms the layers and then stacks the layers on top of each other prior to discharging on a pallet for the forklift driver to then take off the line.

PN914

And what does the palletiser operator do during his shift?---Again, the palletiser operates in an automatic fashion. The palletiser operator is there to monitor the cartons entering the palletiser and the discharge of the pallets from the palletiser to ensure that the pallets are square and the quality hasn't been impinged upon.

PN915

And the QC position?---The QC position is one where an operator has some checks to make to ensure the quality of the product we are producing is conforming with our standards.

**** JAMES HOUSTON XN MR TUCK

PN916

And you have the quality control person relieving the palletiser operators during their breaks. Why is it that you have chosen that arrangement?---Well on many occasions the operators that are operating their machines should be also looking at the machines to ensure that the product that their machine is producing is conforming to our quality standards and we believe, in this occasion, that the quality control operator could also undertake that while they are on the palletiser, however their role of conducting the checks, we believe, can be handled without them there for that period of time.

PN917

Now if I turn the page and I come up with the B2, that is the bottle line 2, is there anything in relation to this example - is it substantially the same as the previous one?---The significant difference between the B1 example and the B2 example is there is no requirement in the B2 example to have an operator operating two machines.

PN918

Why is it that?---The line is laid out a little differently. There are different machines plus the B2 line is only one packaging line operating at one time in B2 A and B whereas in B1 there are two packaging lines operating side by side.

[3.09pm]

PN919

So in B2 you have two fillers?---Two filler operators.

PN920

Operating the one filler?---Correct.

PN921

And in B1 you have two fillers operating two, is that right?---That is correct.

**** JAMES HOUSTON XN MR TUCK

PN922

Is there any explanation as to why you require two fillers on the B2 line?---Previously we had a requirement to load Crown seals. Crown seals are the metallic seals on the top of the bottle. They came in containers of 10,000 Crown seals per container and were readily required to be re-filled into the Crown seal hoppers that fed the filler. We have now moved to Crown seal bins that hold 100,000 Crown seals at the time and therefore the need to continually re-fill and therefore have someone manually load those boxes is significantly reduced from what it was previously.

PN923

How often would they be required now to re-fill?---Might be once per shift.

PN924

THE SENIOR DEPUTY PRESENT: And it was almost continuous?---Ten times more regular.

PN925

Yes. Yes, I shouldn't abuse the word, continuous, anyway?---Yes. In fact the situation on the other B2 line is that we have one filler operator loading the seals themselves.

PN926

MR TUCK: Are there any other distinctions in relation to this example?---Look, they are pretty much on the same theme where the guys are staggering the breaks, 20 minutes either side of their normal meal break.

PN927

And - - -?---That is a fairly simple example.

PN928

And the C1 which is the next page, is that a can line?---That is the can line, yes.

PN929

And can you explain to his Honour that diagram, please?---Okay, again, we are using similar methodology where the dark bars are the occasions where the operator is undertaking the position. The lighter shaded bar is where that operator is taking their break. And the mid shaded area is where that person is providing meal break coverage to another area on the line.

**** JAMES HOUSTON XN MR TUCK

PN930

Can you explain what the positions are, riser A?---Riser A is a position on the discharge of the A pasteuriser. The position is there to stand up cans that have fallen over.

PN931

And the transport position?---Transport position is to bring raw material that has been sent from downstairs from the carton store to various areas on the line. For instance, to the carton packers or potentially across to other machines like the wrapper.

PN932

Yes.

PN933

THE SENIOR DEPUTY PRESENT: Are they handling the same product, these lines?---The C1 line is handling cans.

PN934

Yes, of course, and the other is glass?---The others are glass.

PN935

Yes.

PN936

MR TUCK: You then have four filler positions. Can you explain why that is?---My understanding of that is that the filler operators relieve each other on a rotational basis. So we have one person operating the machine and one person taking more of a break and also helping bring the can ends up to the filler.

PN937

And H cutting, what is that position?---The H cutting machine applies the plastic to the six pack cans so you can pick them up in a six pack.

PN938

And the next page you have DO. DO stands for?---That is draught operations.

**** JAMES HOUSTON XN MR TUCK

PN939

And could you explain that diagram for his Honour?---The diagram is the same. My understanding of draught operations isn't as significant as the packaging operations. But, again, you can see a situation there where there is a requirement for an operator to cover for a 20 minute period for another operator on the line. Again, those breaks are taken side by side.

PN940

Right. Now, are you aware whether or not there are instances throughout the Abbotsford Brewery where two machines are operated by one operator?---I am aware of the can line on the de-palletisers - - -

PN941

Yes?--- - - - where that occurs. Also on B2, dual palletisers are operated by one operator. And whilst we were running two labellers on the B2 C bottling line we had one operator running two labellers. So there is certainly examples of where that can be conducted and has been and is being conducted.

PN942

And I asked you ..... the breaks in people wanting to have smokes. Does that happen only during meal breaks?---No, there is regular occurrences where guys want to take smoke breaks and toilet breaks and they are covered by someone else on the line.

PN943

You don't shut the line down during that period?---No, we don't shut the line down during that period.

PN944

No further questions.

PN945

THE SENIOR DEPUTY PRESENT: Very well. Mr Hinkley?

**** JAMES HOUSTON XN MR TUCK

PN946

MR HINKLEY: I must confess, your Honour, this CUB4 is quite new to me. I understand that towards the close of proceedings on the last occasion, when your Honour will appreciate I was not present, it was involved in some discussions. I have frantically been trying to get some instructions about it at this end of the bar table. I have no wish to delay Mr Houston in pursing any of those issues, your Honour. We have tried our best to take in what he is saying. And what is less useful, I have tried my best. I think perhaps the appropriate course would not be for me to try to cross-examine on this because I don't have any instructions about it.

PN947

I will seek Mr Houston of course if it turns out that there is anything that I consider that needs to be asked of him. I will have a word with my friend to see if it is able to be conceded or whatever and if not then I will be in a position where I will be wanting to have Mr Houston come back subject to perhaps one question about it. Your Honour, can see I am in a rather embarrassing position about it. I think those at the bar table with me have understood what has been said. Even if I had been better instructed I probably wouldn't still. But I certainly haven't been able to understand it at this stage although I get the general gist of what it is all about.

<CROSS-EXAMINATION BY MR HINKLEY [3.17pm]

PN948

MR HINKLEY: Mr Houston, could I ask you just in relation to continuous running, whether or not CUB4 or not is the basis of it. You are aware that the union has made objections to the proposed continuous running on the basis of their concerns about occupational health and safety. You know, they have said that sort of thing to you or to the company. If you agree with me you make a noise. If you don't agree with me you make a different noise?---I am sorry, I didn't realise you were asking a question, I thought you were making a statement.

PN949

Well, whatever, do you agree with me that you know the union does has communicated concerns about occupational health and safety in respect of continuous running?---The union have communicated in a very general manner that they have broad health and safety issues.

**** JAMES HOUSTON XXN MR HINKLEY

PN950

And the company's position is that they disagree with that?---The company's position on that is that we would seek to understand what occupational health and safety issues were through operating some work trials.

PN951

Yes. You would be conscious that conducting a work trial, if indeed there is an occupational health and safety problem, might, indeed, lead to that safety problem precipitating and damage being caused. You are conscious of that possibility?---The operations of the machines - currently the Brewery cares in a safe manner and we are not seeking to do anything other than that.

PN952

Yes, I am just asking you something different to what you said to me, Mr Houston. That is, you would appreciate in conducting a trial, if indeed there is an occupational health and safety problem, that the conduct of the trial might indeed lead to such an event occurring? You would find out if there was an occupational health and safety problem because some damage might be done to a person. You contemplate that possibility - you are conscious of that?---We run work trials at the Abbotsford Brewery where we have supervisors involved making sure that they are conscientious in undertaking supervision of the lines or the work areas that - where we are undertaking the work trials so as to understand if there are likely to be any occupational health and safety issues that can be raised.

PN953

So what you say is that during the work trial in these lines, if they are conducted, continuous packaging - continuous production does occur, that it is impossible for a health and safety issue to arise that could lead to a person being hurt during a trial?---What we are saying is we take a risk management approach and certainly try and minimise any risk of that potential occurring during the work trials.

PN954

So you entirely disassociate yourself from the possibility that someone could be hurt during the process of the trial because of the circumstances in which the trial is conducted?---What I am saying is that the work trials would be undertaken using a risk management approach and looking to minimise any potential of that occurring.

**** JAMES HOUSTON XXN MR HINKLEY

PN955

Yes, minimised, but you are not in a position to say, confidently, that it won't happen?---As a result of the work trial into continuous running we certainly believe that there would be minimal possibility of that occurring.

PN956

Yes. Has anyone in the company given consideration to having an independent person look at the proposal for continuous running from an occupational health and safety perspective?---Based on the fact that we operate continuously in the other plants and we do that without - I am being aware of any occupational or health issues relating to the running continuously that has not been considered.

PN957

Is what happens in the other plants exactly the same as you propose for continuous running at the plants in Victoria?---The continuous operation may not be exactly the same although the philosophy is the same.

PN958

Yes, different machines?---In some cases, yes, in some cases, no.

PN959

So because you have got continuous operation in other states you don't think there is any need for an independent person to look at the occupational health and safety concerns the employees have here in Victoria. Is that the way it goes?---We have our own health and safety experts that work on site and we would certainly seek to have their involvement if required.

PN960

Yes. You know that my question is about independent people. You accept that employees are not in that category of independence when they are conducting - when they are advising on health and safety?---Sure.

PN961

They are your employees?---Sure.

PN962

So what about whether or not you have given any consideration to an independent person examining continuous production from a health and safety perspective. Has any consideration for such an independent person doing that been considered?---Not, it has not.

**** JAMES HOUSTON XXN MR HINKLEY

PN963

No. Are you prepared to consider it?---I think we would like to understand exactly what specific occupational health and safety issues the union have prior to considering that. At this stage it is very broad.

PN964

Yes, well, of course if you did have an independent person come in, you would expect that person to be given a thorough brief from the company and/or the union, or at least, your brief incorporating the union's concern. You would expect that, would you not?---If that was the case I certainly would.

PN965

Yes, well, you would brief an independent person, would you not?---Yes.

PN966

By brief, I mean, you would give them documentation as to your view about health and safety. And if the union had views about health and safety in documentary form you would give them access to that as well?---If we considered doing it independently, yes.

PN967

Yes. Do you have any problem with the idea of an independent person looking at occupational health and safety?---I think, as I stated before, what we would like to do is understand what the specific issues are prior to heading down the path of working out how to resolve it.

PN968

Yes. Does that mean that you would only have an independent person come in and look at occupational health and safety after you have conducted the trial. Is that the way you mean it?---No, no, that is not the way I mean it.

PN969

No. So you don't have any problem with the idea of an independent person coming in prior to the trial with the benefit of a brief from you and a brief from the unions looking at the health and safety issues that might arise with continuous running? You don't have any problem with that idea?---No.

PN970

Do you see any benefit in it?---Do I see a benefit in it?

**** JAMES HOUSTON XXN MR HINKLEY

PN971

Yes?---I certainly haven't had time to consider it to understand whether there would be a benefit or not.

PN972

Yes, I appreciate that Mr Houston, and I don't say that critically. But the benefit to the company I would suggest, at the very least - I withdraw that. At the best, would be the occupational health and safety person ticking off, as it were, the trial being conducted to that person's satisfaction. You would agree with that?---Sure.

PN973

The worst scenario would be them saying you couldn't conduct a trial at all. Do you agree with that?---On occupational health and safety grounds/

PN974

Yes?---Correct.

PN975

The middle ground, which probably is where reality always lies, would be them suggesting perhaps the way in which the trial might be conducted that would obviate the union's concerns about health and safety, and you would accept that that is a possibility with these sorts of things?---It is a possibility.

PN976

Yes?---Sure, it is a possibility.

PN977

I take it then that it is a consideration that you are willing to take on board that there be a health and safety independent person conduct such an analysis? Take on board - I am not asking you to make a commitment in the witness box, of course?---It sounds like it.

PN978

Well, I am not trying to do that, Mr Houston. I appreciate the good sense of your answer that you haven't given consideration to it in the way in which perhaps I have been asking about it?---Mm.

**** JAMES HOUSTON XXN MR HINKLEY

PN979

But, granted that, it is something that you would be prepared to look at and take into account as soon as possibly, hopefully, to consider whether or not this is something that the company will be able to accommodate. Is that a fair way of putting your position?---It is something we would consider.

PN980

Yes. Can I just ask you this. And you may not be comfortable at all in answering it. But how long do you think it would need - how much time would be needed for the company to consider that sort of approach using an independent occupational health and safety person?---I have no idea.

PN981

All right. Have you had any experience of WorkCover inspectors providing advice about such matters?---No, not on continuous running, no.

PN982

I am sorry, generally, on occupational health and safety issues - giving the company advice about them. Have you had any experience of Work - - -?---Sure, we work with WorkSafe.

PN983

Yes. And as a real shot in the dark, but, how readily do they seem to be able to respond to any requests you make to them for advice on OH and S issues?---I am sorry, can you just clarify that again?

PN984

WorkCover employees - I understand that from time to time you do call upon them to look at various aspects of the plant from an OH and S perspective - or have I got that wrong?---Yes, that is not right, that is not quite correct.

PN985

Yes. What is correct?---Well, usually, they come in to ensure that we are compliant.

PN986

I see?---So it is usually the other way around.

**** JAMES HOUSTON XXN MR HINKLEY

PN987

Yes, all right, I understand that. I think that is as far as I can go with that, your Honour. But I will follow it up as best we are able.

PN988

Mr Houston, I appreciate that you were involved in a very substantial part of, if not all of the negotiations, for the 2000 agreement. That is the case, is it not?---That is correct.

PN989

In the 2000 agreement, apart from anything else, one of the things the company was very interested in doing was trying to bring in continuous running of production and distribution?---Yes.

PN990

That is the case?---Yes.

PN991

And another thing that the company was very interested in doing was trying to create an arrangement where issues that affected just the local work area were dealt with by a process that involved just the local work area employees?---Yes.

PN992

And I don't say this critically, that in that sort of process, was hopeful of making arrangements for change without the union being involved but being worked through by the local work area employees themselves together with the company?---It wasn't a way of bypassing the union if that is what you are suggesting.

PN993

Yes, I wasn't putting it critically, but I suggest to you that the idea of local work area consultation and agreement was meant to encourage a circumstance where it is the employees at that level who make the decisions for change. That is - - -?---To involve people where the issues occur.

PN994

Yes. And then when you get up into the business area then it is more union and management in the business consultation process?---Although in the work area - in the work area process an elected union delegate is involved in the process.

**** JAMES HOUSTON XXN MR HINKLEY

PN995

Yes. It is a good point you made the distinction. I am really drawing - is between union officials, can I say, from outside the plant?---Okay, sure.

PN996

As distinct from delegates who are employees within the plant?---Yes.

PN997

And would it be fair to say that one thrust of your position on negotiations was that you wanted to encourage decision making in the work area amongst the work area employees, albeit with the union delegates, the on-site employees being involved. That that was - that process of decision making was something that you wanted as much as possible to be the means for bringing about change?---It was certainly involvement.

PN998

Yes. And then when one got to the business consultation process there was a more official role for the union - of officials to be involved?---That is right.

PN999

Yes, indeed, one of the things that CUB indicated in negotiations was that it wanted a change in the culture of the employees' response to change by having the union not so involved in work area issues as distinct from business consultation issues. Is that a fair enough concept?---I don't think that is fair, no.

PN1000

No. The company wasn't talking about trying to bring about a change in the cultural amongst the workforce?---If you are talking about the consultation process - - -

PN1001

No, no, I am talking about the negotiations - - -?---Yes.

PN1002

- - - that you had with the union over several months really. That one of the perspectives you had was the desire to bring about a change in the cultural of decision making to encourage more of it to occur through the local work area process rather than the business process?---Well, I think you will find that the work area consultation is one that has preceded the EBA 2000.

[3.30pm]

**** JAMES HOUSTON XXN MR HINKLEY

PN1003

But what about my question?---Well, I guess what I am suggesting to you is that in '97 we had been encouraging more involvement from our own employees to the EBA and that continued. So it wasn't - I wouldn't say it was a - a new shift.

PN1004

Right. So, there was Identity 2000 negotiations, you are telling the Commissioner. There was not in the 2000 negotiations a view expressed by the company that it wanted to change the culture in the organisation to have decision making made more effectively at the work area level rather than involving the union in the business process consultation?---Well, I have got to tell you, my - I can't be that explicit back - back to August '99, I think it would - would have been, around then.

PN1005

Yes. All right. So do I take it from that that you are not really in a position to agree or disagree that that was the sort of thing the company was saying?---Correct.

PN1006

And I think you are saying "yes" you agree with me?---No, I am saying I am not in a position to agree or disagree with you.

PN1007

Yes. Which is agreeing with me, actually, with that very silly question I asked you. Yes. All right. I say that in an attempt at humour. I am not suggesting the question was really silly and I appreciate your smile. Now, continuous operations is a - it is a big ticket item for the company. It was a very important change that the company wanted to bring about?---Yes.

PN1008

You would agree with that?---Yes.

PN1009

Yes. And do you recall that during - sorry, during the year 2000 there was a series of meetings that led up to a special meeting being set aside, I think the date was 11 July 2000, a special date being set aside just to deal with the issue of continuous running. Do you recall that?---I am aware of it having read - having read Mr Fountain's witness statement.

**** JAMES HOUSTON XXN MR HINKLEY

PN1010

Yes. I mean, that generally it accords with your recollection there was one day?---Yes, I do remember it. Yes.

PN1011

And that prior to that there had been - well, a series of meetings which included that issue but it became apparent that you needed to focus on it very sharply?---Sure.

PN1012

Yes. And so spend a whole day on it?---Yes.

PN1013

Yes. And the union - I withdraw that. The company's position in relation to continuous running, prior to that meeting, was if that the company wanted an agreement that it was entitled to introduce and put into effect a process of continuous running operations that it decided on. Is that the way you remember it?---The company's position was that we would implement continuous running.

PN1014

Yes. You appreciated my question incorporated the idea of the company itself deciding on that and not needing consent from anyone else?---In terms of the decision making, yes, that is correct.

PN1015

Yes. When you say "in terms of the decision making" you mean having continuous running operate?---Whether continuous running would be implemented or not.

PN1016

Yes?---That is the decision making I am talking about.

PN1017

Yes. Can you just tell me this, how do you have continuous running without implementing it?---The decision on whether it is going to be implemented or not is one decisions and then how it is going to be implemented is another.

**** JAMES HOUSTON XXN MR HINKLEY

PN1018

Yes. But can you tell me this, how could you have it occur without it being implemented? How could you have continuous running without continuous running being implemented?---I am not - not clear on your question there.

PN1019

Yes. Well, I am - I think you might be suggesting that there was - the position of the company was that it insisted upon their being continuous running?---Correct.

PN1020

And that how it was to be implemented was a different issue. Is that - - -?---That is correct.

PN1021

Yes. And that how it was implemented was a process - would be a decided by a process of, let us just say, consultation. Is that the idea the company had?---In the work areas where we it would be implemented. Correct.

PN1022

Yes. And that the implementation would be subject to agreement by the work areas concerned?---How it would be implemented would be subject to agreement.

PN1023

Yes. Now can I just ask you this, can you look at - you decide there is going to be continuous running and you require the agreement of the men as to how it would be implemented. Can I ask you this, how could you possibly have continuos running without it being implemented?---I am still not - I am still not clear on your question, I am sorry.

PN1024

Yes. Well, you see, we do have this distinction in what you are saying and I appreciate it?---Mm.

PN1025

You are saying that the company was requiring that there was agreement to continuos running?---Correct.

**** JAMES HOUSTON XXN MR HINKLEY

PN1026

But how it would be implemented would be subject to agreement by the workplace?---So long as it wasn't unreasonably opposed.

PN1027

Wasn't "unreasonably" opposed by whom?--- By the employees in the union.

PN1028

So what you are saying is that the implementation was subject to agreement by, amongst other things, the employees - except where the employees were unreasonably opposing it?---Correct.

PN1029

Is that the company's position?---Yes, it is.

PN1030

Is it? Or is that the company's position prior to 11 July when that one-day meeting occurred in the year 2000?---The company's position that - was that we would be implementing continuous running and the decision on how we would do it would be by agreement, as long as it wasn't unreasonable, by the employees.

PN1031

Yes. But that little proviso "as long as it wasn't unreasonable" - what I want to know is was that the company's position prior to the one-day special session, we think it is 11 July 2000, was that the company's position?---Absolutely.

PN1032

That the proviso was in there, that provided it was agreed to by the employees but provided they don't unreasonably oppose it?---Whether it was prior to or as a result of the discussions, that was certainly the outcome of that.

PN1033

No. I am not talking about outcomes or anything?---Mm.

PN1034

I am talking about the company's position prior to 11 July?---I can't remember those exact words.

**** JAMES HOUSTON XXN MR HINKLEY

PN1035

No, and I am not taking you to exact words. But you introduced this idea that the agreement of the men to implementation - - -?---Yes. Yes.

PN1036

- - - you said provided it wasn't unreasonably opposed - they are your words, aren't they?---They are my words.

PN1037

Yes. What I am asking is whether or not that was the company's position on implementation. That is, provided the men agreed to it; provided that they didn't unreasonably oppose it - - -?---Correct.

PN1038

Is that the company's position prior to 11 July?---To the best of my recollection, yes.

PN1039

Yes. And I suggest to you that the company made that very clear to the union?---Mm.

PN1040

You have to do a little bit more than a murmur. Sorry, they record it.

PN1041

THE SENIOR DEPUTY PRESIDENT: You will have to give a "yes" or "no".

PN1042

MR HINKLEY: Yes.

PN1043

THE SENIOR DEPUTY PRESIDENT: Just don't shake your head?---Sorry, I thought - I thought I said something.

PN1044

MR HINKLEY: No, you did. You made a noise, you went "Mm" and I respect it because for years they didn't record "Mms" and now they do, I think. But I am never sure they do. So as his Honour says, with respect to his Honour, his Honour says if you make a noise like "yes" or "no" it is easier to see what we have to talk about?---Sure.

**** JAMES HOUSTON XXN MR HINKLEY

PN1045

Did you enjoy all that?---Fantastic.

PN1046

Mr Houston, what I am saying is - I take it the position is that prior to that meeting, that the position of the company - implementation was - that implementation was subject to the agreement of the men, subject to them not unreasonably opposing?---Yes. That is correct.

PN1047

Yes. And there is no doubt in your mind that that is what the company was saying?---To the best of my recollection.

PN1048

Yes. All right. Now, did the company, on 11 July at that one-day meeting - and you may not be able to remember, so don't be embarrassed one way or the other - but did the company present a different position that day in the discussions?---My recollection of that - that meeting was that we presented a position that said, again, that we will be implementing continuous running and the - the "how" - that how implementation would occur would be - would be discussed in the work areas.

PN1049

Yes. I just want to take you to a document that is attached to Mr Fountain's witness statement, if the Commission pleases and perhaps my friend has a spare copy, or perhaps you have got Mr Fountain there with you in the witness box? I don't think you have, Mr Houston. Or perhaps we have got a copy that hasn't been - apparently we didn't get back from Whytcross, despite my plea, the witness statements we handed to him. So we are on knees on this one, Mr Houston. We hand you a copy of Mr Fountain's statement and we would want to be getting it back. And we notice that Mr Whytcross is assisting in that regard, giving his copy back to us. Now, can I take you to the exhibit number 1. Yes, I think it is about half way through the pieces of paper and the number 1 is indicated by the top right hand corner "DF-1". It doesn't have a separate exhibit page?---Sure.

PN1050

You have got that, good?---Yes.

**** JAMES HOUSTON XXN MR HINKLEY

PN1051

Do you accept that this was a document that the company handed to union representatives in that special one-day meeting that we have been talking about?---Yes, I accept that.

PN1052

Yes. Can I just take you to the content of it, the objective is identified. There is an expression clause:

PN1053

Packaging lines including racking to implement continuous running with no additional manning. Time frame requires specification.

PN1054

And then it says "how":

PN1055

How it will be implemented: by agreement in each work area, see attachment for example.

PN1056

And I think the attachment is a table that sort of shows the sort of rotation of persons on the machines. Now, you do accept, don't you, that on the first page there of that exhibit, how it will be implemented doesn't have the second proviso that you have talked about, which was provided it was agreed to, proviso one; and then provided it was not unreasonably opposed by the men. You see that proviso is not there?---That is correct.

PN1057

Yes. You have read Mr Fountain's witness statement?---I had a quick flick through this morning.

PN1058

You have had a "quick flick" through it this morning?---Mm.

PN1059

Is that right?---Correct.

**** JAMES HOUSTON XXN MR HINKLEY

PN1060

All right. You see, Mr Houston, I put it to you that at no time was it a condition of the company's agreement to the 2000 agreement that there was such a second proviso, namely that implementation would be: proviso one, by agreement of the work area; proviso two, so long as that agreement was not unreasonable. I put it to you that that second proposal proposed - I withdraw that - proposed proviso was never put to the union - provided the men, the work area, did not unreasonably oppose the implementation. It was never put to the union?---I don't believe that to be correct.

PN1061

You do know it is not in the agreement in terms, don't you?---I am sorry?

PN1062

Are you familiar with the agreement?---Yes. I am.

PN1063

Yes. Do you remember clause 25, 25A, 25B?---Yes.

PN1064

Do you remember in one place, at least in 25A, it says:

PN1065

The union shall not unreasonably oppose...

PN1066

?---Yes.

PN1067

But what is not there, anywhere, is a proviso like that second proviso you are talking about, namely provided the work area employees do not unreasonably impose. You agree with me, there is nothing like that in it?---I guess I am assuming that the union are representative of the employees.

PN1068

So the reference to "union" is meant to be "employees" as well?---That is certainly the way I - - -

**** JAMES HOUSTON XXN MR HINKLEY

PN1069

Is that right, is that - - -?---That is certainly the way I read it.

PN1070

Yes. You are assuming that?---That is the way I read it and that is the way I read it.

PN1071

Did you ever - did you ever yourself attempt to report to the employees that that was your understanding of the meaning of the agreement, that there was such a second proviso, namely that if they unreasonably disagreed with it you could still go ahead with implementation? Did you ever tell that to the people involved?---I did not, personally.

PN1072

No. Did you ever report that to any other person for the purposes of it being told to the employees involved? Did you talk to somebody else, HR or somebody, and say, "Look, you better explain to them that there is this second proviso that implementation is subject not only to the men agreeing but also provided they don't unreasonably oppose"? Did you ever say that to anybody in the company for the purposes of passing that on to the employees who were going to vote on it?---No, I didn't.

PN1073

No. Did you ever commit it in writing, yourself, that that was part of your understanding of the deal?---No, I didn't.

PN1074

No. Did you ever write to the union, to your recollection, in any way saying that was your understanding of the deal?---No, I didn't.

PN1075

So as far as your activities are concerned, that second proviso was never communicated to anybody else for the purpose of the employees being told that there was such a proviso?---No, I certainly didn't communicate that.

PN1076

All right. It is the usual thing, your Honour, I have got a piece of paper somewhere and I can't find it.

**** JAMES HOUSTON XXN MR HINKLEY

PN1077

Now, in the negotiations - no, I withdraw that. You were involved in negotiations then with the union, with the view to the new agreement after 11 July also, weren't you?---Yes.

PN1078

All right. And in those negotiations with the union this idea of the second proviso was not raised as a requirement for agreement to the - to the 2000 agreement?---I am not aware of that.

PN1079

Right. Mr Houston, I just want to ask a couple of questions about your statement?---Sure.

PN1080

And you have had a chance, have you, to have a revisit on that?---Yes.

PN1081

Not much of a chance by the sound of it, no. But if anything I ask you requires you to take time about it you say so and perhaps his Honour will even adjourn briefly if you need it. So don't, don't feel embarrassed?---No, I will be right.

PN1082

I just want to - I don't think they are very difficult questions, anyway, it is a trick that one, isn't it. Paragraph 12 there, on page 3, you reproduce part of the agreement - you see it is part of clause 25A?---Yes.

PN1083

Just after that you see there is one sentence, two lines, where you say:

PN1084

The clause has been in each certified agreement since late 2000.

PN1085

I take it what you mean there is that that clause is in each of the three current certified agreements to the LHMU, CFMEU and ASU - - -?---That is correct.

PN1086

Not that since late 2000 there had been some other agreements as well, you are not - - -?---No, I am not asserting that.

**** JAMES HOUSTON XXN MR HINKLEY

PN1087

That is right. Yes. All right. Now, can I take you then to paragraph 37, that is on page 7. Just refresh yourself with that, are you happy?---Yes, I am there. I am right.

PN1088

I understand John Eyles - E-y-l-e-s - he is one of the union delegates, that is someone officially elected by some process I take it, as far as you are concerned. And then you speak of an employee and you name them - Con Darios and Joseph, I won't mention the surname, and Sacha, I won't mention the surname, being as you say, and I quote:

PN1089

An employee nominated representative from each of the three shifts.

PN1090

How did they - those people come to be called by you "an employee nominated representative"?---My understanding is that the B2 work area manager spoke to each of the shifts and asked them to - to nominate someone to participate in that meeting. And those individuals were nominated by their shifts to attend the meeting on their behalf.

PN1091

Right. What did you tell the managers the purpose of the meeting was when you asked them to get someone nominated?---What did I tell the managers or what did I tell the employees?

PN1092

No, no, the managers. I thought you asked the shift managers - have I got that right?---No, it is not. Asked the shifts - asked the shifts, which are the employees that work on the three shifts.

PN1093

But you didn't directly go to them and say, "Now I want you to choose an employ rep," you did it through somebody?---I didn't personally do it. The B2 work area manager sought the nominations from each of the three shifts working on B2.

**** JAMES HOUSTON XXN MR HINKLEY

PN1094

Yes. I am sorry, I got - well, well, you know this, don't you, that you asked the various work area managers to ask the employees to nominate someone for the purposes of the meeting with you?---Yes.

PN1095

You don't know what happened, you yourself personally don't know what happened thereafter?---No.

PN1096

No. Can I ask you this, did you tell the work area managers what the purpose of the meeting was at which these so-called employee nominated representatives would attend?---The B2 work area manager was at the meeting prior to that with the union where we advised them that we were going to undertake the work area meeting the following day.

PN1097

Yes?---So that, that meeting time - if I can just recall - - -

PN1098

Wednesday, I think, 25 September at 4.30?---However, prior to that - 24 September. Yes. On 24 September, Steve Levein was also present to that meeting.

PN1099

Steve who?---Steve Levein who is the B2 work area manager. So he was present when we advised the unions of the intent to meet with the work area the next day, and who would be involved.

PN1100

I will take you back a little bit, I don't want to take too long over it?---Yes.

PN1101

But are you saying that something you did advised the union officials, not local delegates, advised the union officials that you were going to ask the work area managers to have the employees of each shift nominate a representative to attend a meeting with you?---Not specifically.

**** JAMES HOUSTON XXN MR HINKLEY

PN1102

All right. Now, did you when you asked the work area managers to ask the employees to do something about having such a nominated representative, did you tell those work area managers what the purpose of the meeting was?---Mr Levein, who is the B2 work area manager, was actually at the meeting on 24 September, so he was very clear what those meetings were for.

PN1103

Yes. And Mr Levein was responsible for passing on to each of the shifts - was he personally responsible for passing on to them the issue of choosing a nominated representative?---I believe he was.

PN1104

And also the purpose of the meeting?---I believe he was.

PN1105

And what is the basis of that belief?---My discussion with Mr Levein.

PN1106

Before he went to those shifts?---Before and after.

PN1107

Yes. All right. Did you check with the so-called representatives and Mr Eyles, themselves, that they understood what the purpose of the meeting was to be?---When we - when we commenced the meeting it was very clearly stated what the purpose of the meeting was.

PN1108

Yes. See, what I am asking you is - and I may not have asked it very well - did you check with them that they and the employees who selected these nominated people, did you check with these people the work area managers had in fact passed that on to them? That is, told the employees concerned what the purpose of the meeting was, and indeed all of the employees? Did you check that?---My understanding from their responses was that that had been undertaken.

PN1109

What was it about the nature of their responses that led to that understanding?---The fact that they referred to - that the other members of their crew had asked them to respond in certain ways to some of the questions we were putting forward.

**** JAMES HOUSTON XXN MR HINKLEY

PN1110

All right. So prior to the meeting, the particular questions that were going to be put forward, had they been communicated, you believe, to the workplace representatives?---I believe what had been communicated to the work areas was that we were going to meet to talk about the implementation of a work trial and the rostering of that work trial.

PN1111

Yes. And you believe that was passed on to the various employees?---To the best of my knowledge it was.

PN1112

Yes. And that is because at the beginning of it the people who attended as workplace representatives seemed to know what the issue was?---Correct.

PN1113

Yes. There is no doubt in your mind, is there, that the employees at Abbotsford and Altona are opposed to the conduct of the trial - no doubt in your mind about that?---Can you rephrase the question again, please.

PN1114

It is clear, isn't it, that the employees and Altona and Abbotsford are opposed to a continuous shift coming in?---Yes.

PN1115

Yes. And, equally, to a trial?---Yes.

PN1116

Yes. And that has been clear to you, I suggest, for quite some weeks prior to today's date?---That would be fair to say.

PN1117

Yes. So to your knowledge, and your belief - and you need to know these things because that is the position you have got - there is no doubt at all that for quite some weeks it had been clearly understood that there was opposition to continuous production, that is right, from the men?---Correct.

PN1118

And also since it came up, opposition to the trial?---Correct.

**** JAMES HOUSTON XXN MR HINKLEY

PN1119

Right. And you are not suggesting in any of your evidence about this meeting that is referred to in paragraph 37, and other paragraphs - - - Yes.

PN1120

- - - you are not suggesting that that is a basis for the Commission concluding that the employees are in favour of the trial?---I think - I think in my evidence I am saying that the employees have said that they could conduct the trial but didn't want to.

PN1121

Right. So what you mean to be saying when you are talking about this meeting, is the employees saying that they conduct a trial but they didn't want to?---Yes. Correct.

PN1122

Yes. And they were clearly, to your knowledge, objecting to the trial being conducted?---As representatives of each of their crews they were objecting to the trial being conducted.

PN1123

Yes. Thanks. Yes. All right. And nothing from that meeting suggested to you that they were telling you that the men just had a few little problems and if they were resolved there wouldn't be any trouble having a trial? Nothing at that meeting suggested that to you?---In relation to actually undertaking continuous running - - -

PN1124

Yes?---- - - they referred to being able to do that. There may be a few minor issues. It was the broader issue of getting paid more for it and just not wanting to do it that they had concerns with.

PN1125

Yes. So the position was that you knew that they were opposed to the trial and opposed, also, to continuous running?---Yes.

**** JAMES HOUSTON XXN MR HINKLEY

PN1126

And nothing that they said led you to conclude that there were just a few little things that had to be fixed up and they wouldn't be in such opposition in the future?---In relation to the practicality of undertaking continuous running they believed there might have been a few minor issues, but they could do it. But they didn't want to do it because they were - they wanted more money for it or they just didn't want to do it. That was clearly communicated to me.

PN1127

Yes, that is all right. And didn't surprise you?---No, it didn't surprise me.

PN1128

Excuse me just a moment. Thank you, Mr Houston. No further questions, your Honour.

PN1129

THE SENIOR DEPUTY PRESIDENT: Very well. Mr Tuck.

[4.00pm]

PN1130

MR TUCK: I understand from my learned friend though that in relation to CUB4 he doesn't have any questions.

PN1131

MR HINKLEY: Well, I tried to explain. I probably didn't do it very elegantly, your Honour, that I didn't know about CUB4. Your Honour might generally recall the circumstances I think the last occasion when we were before the Commission, I haven't been able to get instructions on the on the running and there seems to be a lot of chatter down this end. I am not suggesting there will be any, your Honour, but I will want to get instructions and as I say, I will try to check them through with my learned friend rather than disturb Mr Houston again, and I would only want to disturb Mr Houston again if there was a good reason for asking him to come back.

PN1132

I would want to avoid that, but of course I will want to look at the document and just make sure, but I am not doing this in terrorem, I don't have any sense at the moment there is any need to ask him anything, but - apart from what I have asked him.

**** JAMES HOUSTON XXN MR HINKLEY

PN1133

THE SENIOR DEPUTY PRESIDENT: You seem to be reserving your position.

PN1134

MR HINKLEY: Yes, but I wanted to be clear, your Honour, you know I don't have any expectation that there is a problem, but you know one likes to get instructions.

PN1135

MR TUCK: I am just raising it, your Honour, because Mr Houston is on leave. I am not suggesting that he couldn't make himself available tomorrow, but it is an inconvenience to him to spend his leave in here, and that document was made available to the unions last week.

PN1136

MR HINKLEY: Perhaps we could just have a break for ten minutes and I can try and find out whether there are issues because I don't want to interrupt his Honour.

PN1137

MR TUCK: My friend is suggesting a ten minute adjournment, just to make sure.

PN1138

THE SENIOR DEPUTY PRESIDENT: Well, it would be more convenient, but you would prefer that, would you not, to the other?

PN1139

MR TUCK: I would prefer that, yes, just not to inconvenience Mr Houston.

PN1140

THE SENIOR DEPUTY PRESIDENT: Yes, I agree with that. I will adjourn.

PN1141

MR HINKLEY: Your Honour, in that short time I will try to get a good sense of whether or not there is any purpose in my getting more detailed instructions and that may obviate.

**** JAMES HOUSTON XXN MR HINKLEY

PN1142

THE SENIOR DEPUTY PRESIDENT: Yes. Very well. I will adjourn for ten minutes.

SHORT ADJOURNMENT [4.02pm]

RESUMED [4.10pm]

PN1143

MR HINKLEY: We are grateful for that time, your Honour. Helpfully and hopefully and wonderfully we have no further cross-examinations.

PN1144

THE SENIOR DEPUTY PRESIDENT: I see. Thank you, Mr Hinkley. Well, Mr Tuck, re-examination.

<RE-EXAMINATION BY MR TUCK [4.11pm]

PN1145

MR TUCK: Mr Houston, you were asked questions about the application of health and safety considerations attaching to the trial. Has the company given consideration to the safety aspects of the proposed trial?---Yes, they have. Our machines are safe to operate at the moment. They have all had risk assessments done on them and can still be operated safely.

PN1146

Yes. And have you given specific consideration as to how this trial would be operated safely?---Yes.

PN1147

And what have you done?---We have made sure, not only will there be the extra supervisors around during the period of the trial.

PN1148

Has the union raised any specific issue concerning occupational health and safety?---Nothing specific.

**** JAMES HOUSTON RXN MR TUCK

PN1149

Well, when they say that they have raised occupational health and safety as an issue, have they gone into any more detail than that?---No, they have been very broad and very general.

PN1150

So they have been very broad and very general. What does that mean?---It means that is probably the extent of the issue that has been raised.

PN1151

OH & S is an issue?---Yes.

PN1152

If we take an example of the person whose responsibility it is to operate a machine where the bottles have to be righted, that is a safe - - -

PN1153

MR HINKLEY: Well, your Honour - - -

PN1154

MR TUCK: Sorry, I didn't mean to lead.

PN1155

MR HINKLEY: And I don't see this as arising out of cross-examination because one thing I didn't do was go through what people actually did. That is why I came back and told your Honour that I had no further cross-examination.

PN1156

MR TUCK: Your Honour, the question was raised about occupational health and safety.

PN1157

THE SENIOR DEPUTY PRESIDENT: It was.

PN1158

MR TUCK: And detailed about whether the company had given consideration to independent reports.

**** JAMES HOUSTON RXN MR TUCK

PN1159

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1160

MR TUCK: Your Honour, I am asking questions directly towards the consideration the company has been given of occupational health and safety.

PN1161

THE SENIOR DEPUTY PRESIDENT: Yes, I think it is permissible.

PN1162

MR TUCK: Now I just want to ask - address the issue by reference to an example. When you gave evidence about where the bottles fall over and they have to be righted?---Correct.

PN1163

Now is that a safe mechanism?---Either the operator can undertake to right the bottles safely or allow the bottle to stop the operation of the line automatically.

PN1164

Okay. Now in your situation where you are introducing the roster where the person will operate two machines and a bottle falls down at the same time on both lines, does that create an unsafe situation?---No, it doesn't create an unsafe situation.

PN1165

Why not?---Because the operator would only be asked to do one thing at a time. We are not asking the operator to do two things at once.

PN1166

So what are your expectations of the operator in that situation?---To go and right the bottle on one line and allow the bottle, if necessary, to stop the operation of the machine on the other line.

PN1167

Okay. And when the line stops, what does that person then do?---Then resets the machine and starts the machine again.

**** JAMES HOUSTON RXN MR TUCK

PN1168

And in the discussions with employees, at the work group area, what occupational health and safety issues have they raised?---There were no occupational health and safety issues raised in the B2 work area when we discussed it with them. Their main issues were 1, they just didn't want to do it and 2, they wanted to be paid more for doing it.

PN1169

Did they have any issues related to whether or not the trial could be undertaken?---In my mind they were clear that the trial could be undertaken practically, they just didn't want to undertake the trial.

PN1170

No further questions, your Honour.

PN1171

THE SENIOR DEPUTY PRESIDENT: Very well. Thank you, Mr Houston, that completes your evidence. You are free to go or stay.

<THE WITNESS WITHDREW [4.14pm]

PN1172

MR TUCK: Your Honour, Mr Richardson is the next witness and he will be called first thing in the morning at 9.30am.

PN1173

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1174

MR TUCK: I don't have any other usual thing to do at this stage, your Honour.

PN1175

THE SENIOR DEPUTY PRESIDENT: Yes. Nothing else at this stage. Very well. That appears that that reaches the end of today's proceedings. I will adjourn them until 9.30am tomorrow morning.

ADJOURNED UNTIL WEDNESDAY, 9 OCTOBER 2002 [4.15pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

DAVID JOHN WHYTCROSS, SWORN PN377
EXAMINATION-IN-CHIEF BY MR TUCK PN377
EXHIBIT #CUB2 WITNESS STATEMENT OF DAVID JOHN WHYTCROSS WITH EXHIBITS PN387
CROSS-EXAMINATION BY MR HINKLEY PN393
RE-EXAMINATION BY MR TUCK PN840
WITNESS WITHDREW PN855
JAMES HOUSTON, SWORN PN860
EXAMINATION-IN-CHIEF BY MR TUCK PN860
EXHIBIT #CUB3 WITNESS STATEMENT OF JAMES CAMERON HOUSTON WITH ATTACHMENTS PN870
EXHIBIT #CUB4 PRESENTATION BY MR HOUSTON TO THE UNION IN SEPTEMBER PN878
CROSS-EXAMINATION BY MR HINKLEY PN948
RE-EXAMINATION BY MR TUCK PN1145
WITNESS WITHDREW PN1172