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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N 3209
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER BLAIR
C2003/1983
CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION
and
PAPERLINX LIMITED
Notification pursuant to section 99 of the Act
of a dispute re payment for work on public
holidays for 12 hour shift workers
MELBOURNE
9.37 AM, THURSDAY, 12 JUNE 2003
Continued from 7.5.03
PN107
MR T. WOODS: I appear on behalf of the Construction, Forestry, Mining and Energy Union, together with MR J. CULLINAN, also of the CFMEU.
PN108
MR R. DALTON: If the Commission pleases, I announce a change of appearance in place of Mr Smith. I think the question of leave was reserved, so at this stage I ask for leave to be granted. Mr Purdy and Mr Johnson will both be giving evidence today.
PN109
THE COMMISSIONER: Thank you, Mr Dalton. Mr Woods, do you have any objection to Mr Dalton seeking leave?
PN110
MR WOODS: Commissioner, as we commented at the previous hearing, we also reserved our rights with respect to this matter, and we do have an objection to the company being so represented at this point in time, as we indicated we might do. We have that objection on the basis, Commissioner, that the matters of law are, in our view, addressed between us, and that is the basis on which we find ourselves here today having the matter addressed by the Commission under section 170LW, with a series of facts, interpretation of facts and issues in respect of merit and fairness or unfairness being the sole issues between us.
PN111
The matters of fact, the company is - and statements indicate this - perfectly able to represent itself in this matter, and as a large public corporation it has more than sufficient capacity to represent itself. The fact that it attempts to choose not to is not an indication of an incapacity in our view, and on that basis we make the objection. If it pleases.
PN112
THE COMMISSIONER: Thank you. Yes, Mr Dalton?
PN113
MR DALTON: Commissioner, there are two bases upon which we seek leave. Both of them are set out under section 42 subsection 3. Paragraph (b) refers to the capacity of the Commission to grant leave in circumstances where the subject matter of the proceedings are such that there are special circumstances making it desirable for legal representation. Commissioner, the size of the claim alone, in my submission, justifies leave being granted under that paragraph.
PN114
As you may have seen from the statement of Mr Purdy that was filed in the proceeding, the claim in relation to production workers on the 12 hour shifts is for an additional 44 hours on top of the total annualised hours of 2502.9, and that equates to I think about 1.76 per cent, and when you add the oncosts it is about 2 per cent of the labour bill, which is I think in the range, on my instructions, between 650 to $800,000. So the size of the claim alone I think is significant enough to warrant legal representation.
PN115
Also, Commissioner, as you would be aware from the material filed, that the claim involves assessing the effect of previous agreements, some registered, some not. Whether earlier correspondence amounts to an agreement that changes the basis upon which the annualised wage was set, and also the certified agreements do need to be interpreted. These are all matters that make the involvement of legal representation desirable in the circumstances.
PN116
Commissioner, I would also rely on paragraph (c), on the basis that my client is not in a position today to adequately represent itself and address you in relation to these matters. I should also add that the whole basis of the calculations for the annualised wage is a complicated matter and, in my submission, it would assist the Commission if you had the benefit of my submissions today in relation to that.
PN117
Ms Starkie is not in a position to run the case. She may be here later today, but she has been full-time devoted to three separate enterprise bargaining negotiations involving the Maryvale mill, and I have had difficulty getting full instructions from her in relation to this matter alone. So she just simply hasn't been in a position to also prepare and present this case. Mr Purdy, who is the most senior production manager involved, is a witness in the proceeding, as is Mr Johnson. So those are the reasons, Commissioner, why I ask for leave to be granted in this case.
PN118
THE COMMISSIONER: Yes, thank you. Yes, Mr Woods?
PN119
MR WOODS: Obviously ultimately, Commissioner, this is a matter for the determination of the Commission. We are not minded to be any more concerned about the company's involvement in three enterprise agreements with the various resources available to it than we are to be minded about our own circumstances where we are involved with significantly lesser resources in three enterprise agreements at this point in time also, not all of them with this company, but one of them at least with this company. These are matters that will always affect us.
PN120
With respect to the - if I might just say with respect to the issue of quantum and with the issue of measurement of calculations, it is an argument just expressed by Mr Dalton that there ought be an accountant here representing the company rather than a lawyer here representing the company. We do object. We understand, of course, that the Commission would make its determinations in respect of this.
PN121
THE COMMISSIONER: All right. What the Commission will do is grant leave to appear on this basis. That it understands the argument before it and sees it as a - although the calculation, which I have a worry, Mr Dalton, if the legal representative is going to make it any more difficult than what it is to understand, have a worry about that, understands the argument, it is either a question of whether or not, as I understand that what is before me, the employees are entitled to payment for the 12 hour shift on the day worked on a public holiday or whether or not there is sufficient compensation in the overall averaging of hours to deal with that particular issue.
PN122
So I will grant leave on the basis that we keep it as simple as possible. If I think that legal argument is going to frustrate the Commission, then I will need to revisit the leave to appear issue. I have an issue though where I don't have any submissions at all from the union. I have no paperwork from the union. I don't know what has happened. I only have the outline of argument and witness statements from the company.
PN123
MR WOODS: I was just surprised to hear that, Commissioner. There have been some exchanges. I am sure the Commission was aware about precise timing in respect of these, but this is an error exclusively on my behalf, I might say, and therefore on behalf of the union, where we had, it would appear to me, we have submitted to the company and not submitted to the Commission, an error for which I can only apologise most humbly and with a great level of surprise.
PN124
THE COMMISSIONER: Okay. Well, if I could have what you have got. I assume the company has received the documentation. Mr Dalton?
PN125
MR DALTON: Commissioner, we did. We were served with the submissions with a number of documents attached. And you might see from the letter, I think, which we copied you in on, we hadn't received witness statements, but we indicated in the letter that we had received the statement and the attached documents I think on 30 May, consistent with the Commission's directions. We received a set of submissions in reply and with that a statement of Mr Ian Moule with some attachments. We are not going to object to that material being put in evidence, in spite of the fact it was outside of the time as directed by the Commission.
PN126
THE COMMISSIONER: Right. All right, thanks for that. All right. Mr Woods?
PN127
MR WOODS: Thank you, Commissioner, and again our apologies in respect of the submission. Commissioner, what we intend to do, the CFMEU intends today, is to present evidence in the form of documents and the quite limited witness evidence that outlines the long outstanding issue, the payments applicable for public holidays at the Maryvale mill of Australian Paper. We intend to provide evidence of the current payments regime, the proposed amended payments regime in the event that the Commission grants the draft determination or orders proposed by the CFMEU and, of course, to outline the circumstances that bring us before the Commission to the extent to which those were not already covered in the previous hearing.
PN128
In submission the CFMEU will assert that there is in existence now a significant industrial unfairness that needs to be addressed by the Commission in this matter, and we will refer the Commission to our draft determination and the order that we are seeking in respect of that matter. Having just, but already handed up those two documents with respect to the outline of submission and the response, and much in the terms that Mr Dalton described, we would obviously be intending principally to rely on those documents and do not understand that those documents are particularly contentious between the parties, constituting primarily exchanges between them over this long period of time.
PN129
In order to address the witness statement and give it its appropriate form, the CFMEU would propose and would seek the opportunity to call Mr Ian Moule to give evidence.
PN130
PN131
THE COMMISSIONER: Given that this matter is an arbitration and it is not a matter that is being dealt with under the unfair dismissal provisions, I see no reason why those that are intending to give evidence can't stay within the Courtroom, given that most of the material has been provided and it is just a question of interpretation. Is that right?
PN132
MR WOODS: I think it could be taken as read by all of us, although Mr Dalton would speak for the company, of course.
PN133
THE COMMISSIONER: Sure. You don't have a problem with that, Mr Dalton? I mean, Mr Purdy and Mr Johnson intend to give evidence, but I am not asking that they leave, because it is not the basis on which we deal with an unfair dismissal where we expect people to be outside because their evidence may be in conflict with each other. This is not the same basis, is it?
PN134
MR DALTON: I am content with that course, Commissioner.
PN135
THE COMMISSIONER: Thank you. Okay. All right, thank you.
PN136
MR WOODS: Could you please state your full name and address for the record?---Ian Lawrence Moule.
PN137
And your address please?---6 Grania Grove, Morwell.
PN138
And what is your occupation, Mr Moule?---My occupation is CFMEU Secretary of the Maryvale Sub Branch, employed by the CFMEU and the company on a full-time basis at the Maryvale mill.
PN139
Thank you. Mr Moule, in respect of this matter of public holiday payments for employees, have you prepared a statement in respect of this matter?---Yes, I have.
**** IAN LAWRENCE MOULE XN MR WOODS
PN140
Commissioner, I propose to hand a copy of a statement. It is already provided, but obviously copies to the Commission also.
PN141
THE COMMISSIONER: Thank you.
PN142
MR WOODS: Mr Moule, if you could take a moment to consider that statement. Is that a copy of the statement that you prepared with respect to this matter?---Yes, it is.
PN143
Is it, in the best of your knowledge, a true and accurate statement?---Yes, it is.
PN144
Commissioner, on that basis we have no further questions at this time.
PN145
THE COMMISSIONER: Thank you. Are you tendering that, Mr Woods?
PN146
PN147
THE COMMISSIONER: Yes, Mr Dalton.
PN148
PN149
MR DALTON: Just a few questions, Mr Moule. How long have you been the Sub Branch Secretary?---Approximately seven years.
**** IAN LAWRENCE MOULE XXN MR DALTON
PN150
Seven years, okay. So about 1996?---Yes, '97.
PN151
Okay. At paragraph 6 of your statement you talk about the introduction of the 12 hour shifts, and you say that it was jointly agreed between one work area and the company?---Yes.
PN152
That was the converting room; is that right?---Finishing converting room, yes.
PN153
Yes. Now, when you say it was jointly agreed and the CFMEU supported its members in their proposal, it was the members in the converting room who wanted to move to a 12 hour shift?---It was signed by one of my members, being Tony Heppleston and the area manager, because the benefits that they could see working in that area, so they submitted it to the company and to the union to follow it through.
PN154
Okay. All right. And then that resulted in an agreement between the parties to implement a 12 hour shift in that particular area?---Through that area and the rest of the mill.
PN155
And then it subsequently was - - -?---The company, under the trial proposals, it was right across the mill, and we had to achieve one roster, one rotation, to make sure that all the benefits that the company were going to receive were activated.
PN156
Okay. Now, at paragraph 7 you talk about the completion of the trial in late '99?---True.
**** IAN LAWRENCE MOULE XXN MR DALTON
PN157
Do you have any evidence led through documents or some other correspondence that indicates the completion of the trial?---Yes. Well, we had to achieve a high percentage of the people, the people had to vote on to get to that one roster, which we trialed two different rosters. Some sections wouldn't trial the other rotation, being a night, night, day, day, and a day, day, night. At the conclusion in '99 we achieved that to one roster, being day, day, night, night, and all the members voted on it, and the company was notified at that stage as the sections agreed to go to that day, day, night, night, they were all notified that at this stage we were concerned that the trial has concluded. And our members have accepted that rotation.
PN158
Well, I am suggesting to you that you are regarding the trial as having been completed because ultimately by 1999 all of the areas moved to the particular day, day, night, night 12 hour system. You are not able to refer us to any formal review and formal agreement reached between the parties that the trial that is referred to in the principles was completed?---Managers of all the areas accepted my letter that it was a permanent on that terms that our members had accepted. The area managers encouraged us to make sure that we got true and correct vote of members so that they couldn't go backwards to their alternative rotation, being night, night, day, day, or day, day, night, night, severing the working relationship between the crews.
PN159
So you had some letter that confirmed that it would be day, day, night, night, not night, night, day, day?---Yes.
PN160
Okay. Did you have anything that said that the trial and the principles set out regarding the implementation of the 12 hour rosters was at an end?---We notified the company that we had concluded. The company never responded - - -
PN161
Sorry, who is we?---The union.
PN162
The union?---Yes.
**** IAN LAWRENCE MOULE XXN MR DALTON
PN163
So do you have a document that you are going to provide the Commission?---We provided the company with the documents. I am not sure whether the company - the union have provided that. All the evidence was put in front of the company at the time when we had the discussions at Maryvale.
PN164
Right. Do you have anything in your statement that you want to rely on to establish that?---I don't believe that we have put anything in the statement. I know that we haven't put anything in the statement to that effect.
PN165
No, you haven't. Okay. Are you able to point to anything in your statement or any attachments that the union has relied upon that indicates that the company agreed to abandon the no extra cost principle?---I refer to the letter of Geoff Landells acknowledging it. We have - - -
PN166
Sorry, which letter is that?---The first attachment.
PN167
Your first attachment?---Yes. He acknowledged that we had a claim.
PN168
Sorry, he acknowledged that you had a claim?---A claim, yes.
PN169
Yes. But the question I asked you was whether you were able to refer us to any document in your statement, or any other document that the union has filed and served that says that the company has agreed to abandon the no extra cost principle?---In the attachment 3, the minutes of the IRC meeting, which was provided to us by the company, where I raised the issue of public holiday payments, right, where there was an agreement between the ex HR manager in 1995 that all components relating to the EBA would be reflected as 12 hours.
PN170
Right. Now, when you say that, you are referring to a letter written by Mr Russell Reece, 7 March 1995; is that the one?---Yes.
**** IAN LAWRENCE MOULE XXN MR DALTON
PN171
That is at annexure B of the union's materials?---Mm.
PN172
Would you like to have a copy just to confirm it. Does the Commissioner have that? Annexure B, it is marked in handwriting as annexure B.
PN173
MR WOODS: It is attachment 3.
PN174
THE COMMISSIONER: Attachment 3?
PN175
MR WOODS: Attachment 3, annexure B.
PN176
MR DALTON: Thank you. Attachment 3, annexure B, yes.
PN177
THE COMMISSIONER: That is dated 7 March; is that right?
PN178
MR DALTON: 1995, Commissioner, yes.
PN179
THE COMMISSIONER: Yes, okay. Thanks.
PN180
MR DALTON: This document was handed up and the parties addressed you on it when the matter was first before you.
PN181
THE COMMISSIONER: Yes.
PN182
MR DALTON: Is that the document?---Yes.
**** IAN LAWRENCE MOULE XXN MR DALTON
PN183
Yes, all right. And so that is the document that you referred to in this 19 December meeting, 2001, with Mr Purdy?---Yes.
PN184
Right. Now, Mr Purdy, in his evidence, denies that he ever accepted that the 1995 letter had the effect that you were suggesting it had. Do you agree with that?---That is true to that statement, that he rejected it as an agreement.
PN185
Yes. But you were asserting that it was an agreement?---Yes.
PN186
Yes, that is right. Now, neither of you were involved in that matter that is referred to in 1995, were you?---No. I was a shop steward at that stage.
PN187
No. But you weren't involved in whatever Mr Reece was referring to?---No.
PN188
No. All right. So both you and Mr Purdy were just exchanging your respective views as to what the 1995 letter represented?---I was exchanging these letters out of our agreement folder that was set up by the previous secretary, being Graeme Morley.
PN189
Right, yes. But what I am saying to you is that in the December 2001 meeting, what happened in that meeting was that you and Mr Purdy both exchanged your respective interpretations of what the 1995 letter meant?---Well, we passed the letter on, the union passed the letter on to Mr Purdy, and stated that this was the agreed position at the time, because that was the commencement of the actual trials on the site.
PN190
Yes. And Mr Purdy didn't accept that it was an agreement?---No, didn't accept it was an agreement.
**** IAN LAWRENCE MOULE XXN MR DALTON
PN191
Right, okay. I have just got a question to clarify the sick leave deductions. The sick leave deductions, when there was the eight hour shift system, there was an agreement in the certified agreement that if you didn't attend on a public holiday that you would be - that you would have the penalties deducted, but you could get paid for ordinary hours by dipping into your sick leave accruals by eight hours; is that right?---Do you want to re-word that?
PN192
Okay. That you got eight hours ordinary pay through the deduction of eight hours accrued sick leave, but that the penalties attaching to that public holiday, being the one and a half times eight, being 12 hours, were deducted from your annualised wage; is that right?---And that come in that you could actually take extra deductions in the last agreement, 2000 agreement.
PN193
Sorry, I am just talking about under the eight hour system?---I don't believe that was an agreed part in the previous agreements. That was only by mutual agreement between the employees.
PN194
All right. Can I show you IM2; it is attached to your statement. I think this deals with the 2000 agreement. That refers to an eight hour shift. Do you see the deduction in average wage?---That is what I referred to, that in the eight hour agreement, being prior to the 2000 agreement, this clause wasn't there.
PN195
Yes. No, there was another clause, wasn't there?---This clause come in - - -
PN196
Can I give you a copy of the old clause. Do you recognise that addendum, item number 1, in the 1993 agreement?---Yes.
PN197
Yes. Do you see where it says if you have sick leave credits they will be applied against sick leave absences?---Yes.
**** IAN LAWRENCE MOULE XXN MR DALTON
PN198
All right. So that would mean that you get - that you take eight hours off your sick leave credits to get your ordinary hours?---Yes.
PN199
Yes. And do you see under the heading, deduction in the average wage, do you see how it provides for the deduction of the penalties for a public holiday?---Yes, yes.
PN200
So, in fact, that there was an agreements?---That there was deductions of those hours.
PN201
Yes, that is right, the penalties, being the 12 hours. Yes. You will just need to say yes for the transcript?---Yes.
PN202
All right. And that is the position, that has been the position since 1993, hasn't it?---They have gone to deducting, since the 12 hour come in, if you had an absenteeism on a public holiday, 30 hours, and if you had an absence on a weekend it was the double hours, if it was on Saturday it was time and a half.
PN203
All right. So the 12 hours on a public holiday, just so I think we are all clear, the deduction is the penalties, being the 12 hours plus six hours?---Yes.
PN204
So one and a half times 12 hours?---No. The deductions on public holidays is ordinary time worked, public holiday time and penalty time, totalling 30 hours.
PN205
Okay. And then you can claim back the 12 hours sick leave?---Sick leave.
PN206
Yes. And, in fact, there is an agreement, as I understand it, these days that you can dip further into your sick leave accruals to get more money if that is what you want?---You can dip further - - -
**** IAN LAWRENCE MOULE XXN MR DALTON
PN207
But that is by agreement with the individual?---Yes.
PN208
All right.
PN209
THE COMMISSIONER: That claims the penalty? You can claim the penalty out of a sick leave accrual?
PN210
MR DALTON: Yes.
PN211
THE COMMISSIONER: Yes. So you don't lose the 30 hours, if that is what you choose?
PN212
MR DALTON: That is right, that is at the election of the employee.
PN213
But with or without the election of the employee, under the eight hour system the deduction from the annualised wage of the penalties was 12 hours, being one and a half times the eight hours, and deductions for the public holidays under the 12 hour system is one and a half times 12 hours, being 18 hours; is that correct?---When we were working the eight hour shift, are you talking about?
PN214
I am talking - I was trying - I was talking about eight hours and the 12 hours?---When we were working the eight hour shift the deductions were eight ordinary time, eight public holiday, full penalty.
PN215
Yes. And under the 12 hour system it is 12 hours ordinary time, 12 hours worked?---12 hours worked, penalties, taking you to 30 hours.
PN216
Yes, all right. No more questions, Commissioner.
**** IAN LAWRENCE MOULE XXN MR DALTON
PN217
THE COMMISSIONER: Thank you. Mr Woods?
PN218
PN219
MR WOODS: We might go direct to that issue, Mr Moule. I understand you to have just said that on the 12 hour shift basis deductions are based on 12 hours worked?---Yes.
PN220
On what basis are payments made?---On eight hour basis.
PN221
So tell me, and tell the Commission if you could, what the payment I would receive if I worked on a public holiday would be, and what is built into my wage?---If you were ordinary time, which is 12 hours built into the 1735 hours, eight hours public holiday payment, and then a calculation of four hours by nine as a penalty.
PN222
So on average I would receive 24 hours pay?---Yes.
PN223
For a public holiday worked under the 12 hour arrangement?---Yes.
PN224
And how many total hours would I be deducting if I was absent when I was sick?---30 total hours.
PN225
And under the eight hour arrangement how many hours was I paid for?---20 hours.
PN226
And how many hours would I have been deducted if I was absent on that day?---20 hours.
**** IAN LAWRENCE MOULE RXN MR WOODS
PN227
Thank you in respect of that matter. Mr Moule, in discussion with Mr Dalton, you commented with respect to documents in respect of acknowledging that the trial had now finished, and you commented in response to Mr Dalton's question, that you were uncertain of any documentation that had been exchanged between the parties about the company accepting. Have you seen - and I propose to hand this to Mr Moule, Commissioner - a document in the CFMEUs outline of submission under attachment 3, annexe M, the second letter? It is under annexe M, I think it is the third page in, Commissioner, if that helps. And, Mr Moule, you have got that document in front of you now?---Yes.
PN228
If we look down to the second square dot point, this is a letter - is this a letter from Mr Tony Purdy to you?---Yes, it is.
PN229
And if you look at the second square dot point there, that reads:
PN230
We acknowledge the trial has now finished, but realise there has been no formal documentation to clarify the current position.
PN231
Does that remind you of your receipt of this correspondence some time around 14 November 2002?---Yes.
PN232
Did you at that time take it to mean that the company accepted that the trial of the 12 hour shifts had now concluded?---Yes, that it had concluded, but we were in dispute.
PN233
And in dispute specifically with reference to those matters which are contained underneath?---Yes.
PN234
I have no further questions.
**** IAN LAWRENCE MOULE RXN MR WOODS
PN235
PN236
THE COMMISSIONER: Yes, Mr Woods?
PN237
MR WOODS: Thank you, Commissioner. The CFMEU would propose to refer you to paragraphs 5 to 9 of the outline of submission, and only to do so extremely briefly with reference to say that at the outset in an argument about the application of the agreement, we are simply at pains to make clear that it is our view that section 170LW provides, and provides handsomely the opportunity for the Commission to assist the parties to determine this interpretive issue, and that we will come to that with respect to the construction matters.
PN238
I think suffice it to say from our point of view at this time, Commissioner, the context and the language of the agreement is such that the merits and the positions of the parties ought, in our opinion, be the prevailing focus of the Commission's attention in this matter. And what we would propose to do is, of course, to continue on in submission, making reference to the outlines of submission and, of course, the documents contained in the evidence provided by Mr Moule, with a view to demonstrating the merits of that argument, and certainly its application in making a determination under section 170LW.
PN239
We say this is of the utmost importance because the argument contained within the agreement, the construction argument, is a significantly flawed argument on a number of fronts, but one front in particular, and that is that at best there is a significant contradiction in the substantial enterprise agreement that affects this particular matter. That contradiction requires, as we say, this matter to be addressed largely on the merits of the matter rather than against a strict construction argument, although there is, of course - it is, of course, necessary to refer in part to the history of the matter, and also, of course, to those specific merits.
PN240
With respect to the history of this matter, we say that that also is not a determining factor here, but we do say that it is instructive and it needs to be addressed as part of this issue of addressing the overall merits of the CFMEUs claim and the draft determination and orders which are at attachment 4 of the CFMEUs outline of submission. We propose to refer the Commission to attachment 3 of the outline of the Commission, which has been provided to the Commission in the outline.
PN241
In particular I take you to a number of matters of history, and go through those. Starting in 1994, when 12 hour shifts were introduced by agreement, and it is clearly the CFMEUs position that the signatures on the document attachment 3, annexure A, is at the end of the day an agreement between the parties, and all else that came before and was exchanged between the parties in terms of coming to an agreement, the introduction of the 12 hour shifts were clearly a function of that agreement.
PN242
The absence of an agreement would have meant that the company would not have agreed to any 12 hour shift arrangement and, of course, the employees would not have gone onto a 12 hour shift arrangement. So I think it suffices to say in submission that we submit that by 1994 there was agreement to go to 12 hour shift. Of course, we note that annexure A of attachment 3 details that this is in respect of - these matters are raised in respect of a trial in respect of the 12 hour shift, and that is consistent throughout that document.
PN243
In 1995 the company agreed in its correspondence to the CFMEU that entitlements were to be converted to reflect 12 hour shifts. For that we refer to annexure B, correspondence from Mr Russell Reece, the then Personnel Manager of the company at Maryvale, to Mr Graeme Morley, the then Maryvale Sub Branch Secretary of the CFMEU, in which he outlines - and this is correspondence previously submitted in an earlier hearing - in which he outlines that entitlements would be converted to reflect a 12 hour shift arrangement.
PN244
And if nothing else, Commissioner, what that demonstrates at that point in time, is that the intention of the parties was clearly to continue discussing this matter, and not only to continue to discuss it from the CFMEUs point of view, but to satisfactorily resolve at a point in time the issue of outstanding payments, particularly as it related to entitlements. Over the course of '94 to '99, and there are a number of documents referenced, it is clear that a range of decisions were taken in respect of rosters and associated matters as part of the introduction of 12 hour shifts. One of the - and the attachments in large part indicate that. One of the - and the annexures indicate that, to this attachment.
PN245
One of the matters that was at hand was on what basis the trial would conclude. And we have heard from Mr Moule that it is his evidence that the trial would conclude when the benefits that were deemed to accrue to the company had actually accrued to the company, and that threshold in respect of that was the coming to what amounts to a single roster, a single roster for 12 hour shifts that then meant that there was a uniformity of shift arrangements to the extent ever possible across this very large site, that there was an opportunity then for cleaner and clearer communication by the company to its employees, and there were less shift changes thereby affecting the operational matters that would on an ongoing basis affect the company if they had a greater number of shift changes and a greater number of production variables at play.
PN246
In 1999, it is the CFMEUs submission, that the introduction and the trial of the 12 hour shifts was completed, because those benefits had, in fact, at that time accrued to the company. We refer the Commission, as we had Mr Moule a moment ago, to attachment 3, annexure M, specifically by 2002, and that is that letter 2 again, Commissioner, third page in under annexure M.
PN247
THE COMMISSIONER: Sorry, is that annexure M or N?
PN248
MR WOODS: M.
PN249
THE COMMISSIONER: Thank you.
PN250
MR WOODS: Apologies.
PN251
THE COMMISSIONER: That is all right.
PN252
MR WOODS: And as I say, the third page in, in which Mr Purdy, writing to Mr Moule, says he acknowledges that the trial has now finished, because there are other matters referred to in respect of that documentation. But the CFMEU doesn't say that this matter was actually concluded by virtue of correspondence from Mr Purdy about the trial in 2002. We say that it was concluded in 1999 when the benefits had finally accrued to the company with respect to the 12 hour shifts.
PN253
In 2000, the last time the enterprise agreement was up for negotiation, the payment base for public holidays was raised in the enterprise agreement negotiations. And we would refer the Commission in that respect to annexure C of attachment 3 of the CFMEUs documentation. This is some way through the enterprise agreement negotiations, and there is a statement from the CFMEU which clarifies particularly clearly both the nature of the claim and the manner in which the CFMEU proposes to have this matter ultimately dealt with, and that is to say that it demands that the company at that point of 13 September meet the CFMEUs claim as part of the final settlement in respect of the enterprise agreement.
PN254
As it ultimately transpired, and there is a document to indicate this matter was not satisfactorily resolved by the parties in that agreement. What agreement was made in respect of this matter was to make this a reserved matter, and we previously provided that documentation at the earlier hearing. The reserved matter in respect of the enterprise agreement and the subsequent correspondence to the company, which is at annexure D to attachment 3 of the CFMEUs outline of submission, makes quite clear that the parties accept that this is not only a reserved matter, but a reserved matter to be resolved during the life of this agreement. And, of course, we are still in the life of this agreement, and we are going through that exercise at this point in time.
PN255
Various attempts have been made across the life of the agreement, and those are outlined more than adequately in both the parties submissions in various ways, to attempt to resolve this reserved matter, because at the end of the day the parties are now finding themselves before the Commission in regards to this issue. But across that period of time we don't say is that the trial ended just at a point in time when Mr Purdy provided some correspondence that said yes, the company accepted the trial had ended, but, in fact, that there was a time some time before that where the trial must necessarily have ended by virtue of the benefits that the company had derived with respect to the introduction of the 12 hour shifts having been accrued to the company.
PN256
And the fact that it was later referred to is clearly a matter of fact, but it does not mean it was upon that date that the matter was ultimately agreed. Moving on with respect to the construction of the agreement matter, as we have outlined, we say that there is no doubt that the payment for public holidays is a reserved matter in the agreement. And the CFMEU respectfully submits that in effect that is all that we and all that the Commission needs to know at this time, because it provides the basis for the matter to be dealt with under section 170LW, and allows the Commission to make its determination in one form or another for application by the parties.
PN257
And the CFMEU relies upon equally clause 39.6 of the Australian Paper Agreement, which, as we describe at paragraph 13 of our outline of submission - and this is a document again already submitted - requires that a full day or shift be paid to employees who are working a holiday. And the company's apparent, but, in our view, somewhat confused reliance on the calculations clause in the Maryvale appendix to this agreement, so clause 39.6 of the Australian Paper Agreement as it applies to all four of the companies mills, as opposed to the application of the relatively long standing hours worked clause in the Maryvale appendix, creates a circumstance where, in our view, at best there are rival contentions existing as to the true construction of the agreement.
PN258
The clause 39.6 read in its own right applies such as to say that whether you work eight, 10 - an important issue here - or 12 hours, then you are entitled to receive payment for the full day that is worked or rostered. And, of course, under the company's construction the Maryvale appendix works, and under the company's proposed construction to you, works in such a way as to militate against that reading of the core agreement. As we say, Commissioner, at best these matters are contradictory. And while that may be somewhat confused in the agreement and is unfortunate, it is nonetheless the case that the one directly contradicts the other.
PN259
The CFMEU submits, however, that in any event the task of the Commission in providing a determination under section 170LW arising from a dispute on a reserved matter is, in fact, to go forward and to determine the appropriate course for the future rather than to give consideration to the construction matter. To do that, Commissioner, we would respectfully submit that the Commission must be inevitably minded to the merits of the matter, and being minded to the merits of the matter and of appropriate payments for public holidays that has been under consideration for a long period of time at Maryvale, and, in fact, since almost the introduction of the 12 hour shift arrangements, that is to say, 12 hour shifts introduced in '94, correspondence in '95 about at least one issue related to the introduction of the 12 hour shifts, the matter in 1995.
PN260
The matter obviously over that eight or nine years has not gone away to the extent to which we remain here. We would refer again to that correspondence from the company, which is at attachment 3, annexure B, and we say that it is clear that it was intended as far back as '95 that entitlements would be converted to reflect the 12 hour shifts, and that that is not so limited as is in part relied upon by the company, to say that that only relates to bereavement leave provisions. A correct reading, in our view, of that correspondence is that entitlements are to be altered to reflect the fact that 12 hour shift arrangements are worked.
PN261
And, of course, that correspondence is itself clearly a response to earlier correspondence and discussions staking a claim for this and, in our view, is indicative of what we would consider to be the general industrial unfairness of the arrangements as they are applied. Almost from the day that the 12 hour shifts were introduced this issue is alive in the workplace because it is clear and evident, at least from the perspective of the union and employees, that there is some significant industrial unfairness.
PN262
The company's assertion in a series of minutes - and we would propose again we would make reference to the outline of submission of the CFMEU, attachment 3, annexure F, which are minutes of a meeting produced by the company and previously provided to you, item 4 of those minutes, which refers to public holidays, and which Mr Dalton recently took Mr Moule to consider. But the company's assertion in the minutes is absolutely clear.
PN263
The company doesn't have to follow an agreement from 1995 in respect of transferring entitlements to 12 hour arrangements, but the union and its members are obliged to continue to follow ad infinitum and seemingly without cessation a set of principles which were so introduced in respect of a trial from 1994. And the company's continued reliance on those very principles associated with the trial of 12 hour shifts is, in our submission, not sustainable.
PN264
The matters that are associated with the trial, as we have commented, are now embedded into the workplace, even if they have not accrued the same benefits that the company might have believed that they were going to accrue. They are clearly nonetheless embedded into the workplace. They are the accrued benefits to the company of this introduction. And we would refer the Commission to paragraph 6 of the CFMEUs response to the respondent's outline of submission.
PN265
And, in particular, the CFMEU submits that the company would never have agreed to the introduction of 12 hour shifts had there not been some benefit in respect of them. And at the end of the day, no matter how late it came, Mr Purdy would not have corresponded with Mr Moule in any form, oblique or otherwise, to say that the trial in respect of the 12 hour shift had ended unless those matters had been resolved at least to the vague satisfaction, but we submit to the actual satisfaction of the company, despite the fact that they were working not to end up formally concluding the trial, because to formally conclude the trial necessarily meant that the matters that are before you would come before you.
PN266
And that is to say that the company was of a mind to ensure that the CFMEUs members at Maryvale would continue to bear the cost in respect of public holidays matters regardless of the fact that the benefits available to the company in respect of the 12 hour shifts had already accrued to the company. With respect to this matter of industrial unfairness and merit, the CFMEU submits that there are two principal areas of unfairness that, in our view, make this a highly meritorious claim and that commend the draft determination and orders to the Commission.
PN267
First, it is fundamentally industrially unfair that an employee's base of payments with respect to public holidays will be based on eight hours when employees are working 12 hours. It was agreed as a trial, the trial concludes, benefit accrue, and must then accrue in both ways. That unfairness is compounded since at least 14 November 2002, when Mr Purdy's correspondence stating that the trial had concluded came into being, but, in our respectful view, that has, in fact, been the case since 1999, when the shift arrangements had been finalised.
PN268
And secondly, we would submit that it is manifestly unfair that employees have deductions made from their pay based on 12 hours if they are absent on a public holiday when they have only been remunerated for eight hours. And as Mr Moule just explained under re-examination, the deduction is greater, in fact, than the overall payment. And as Mr Moule has further commented in his statement, and was not cross-examined in respect of, he has said that it is the CFMEUs view and position that we would never allow penalisation of members because it is, in fact, the case that the deduction of penalty rates is intended to be, certainly at that point, cost neutral to the company, but also not at penalty to employees.
PN269
It is, in our view, a perverse reading of penalty rates and the general concept of penalty rates to suggest that those are penalties on employees. In fact, the way that they are written is as penalties on employers and specifically on companies. The CFMEU, suffice it to say, has never agreed, and Mr Moule has confirmed this via his evidence, and we submitted this in our outline, that employees ought be penalised as some form of deterrent to absenteeism.
PN270
And, in fact, the eight hours arrangement demonstrates that absolutely clearly, because under the eight hours arrangement there was no penalty on employees designed as a deterrent or any other matter. It was simply that you no longer got paid the penalties that would have applied had you worked. However, under the 12 hour arrangement, apparently we are to believe, if we accept the company's argument, that there is some extra need to penalise people who are absent on a public holiday, and then deduct - and the company deducts more from their wages than they have, in fact, actually earned. I think, respectfully to the company, that is a specious line of argument.
PN271
The recent example of the company's application of the newly introduced Easter Saturday public holiday amplifies the industrial unfairness of this particular situation as it is applied to employees at Maryvale.
[10.28am]
PN272
The company has done nothing more than apply their existing principle to the very clear detriment of employees, even though recognising that this public holiday was not even considered back in 1994. And we make this point, Commissioner, that it is noteworthy that in respect of applying that principle in respect of the additional public holiday, not only is the same principle being applied, but it is being applied in such a way that some people have not even received some payment. And it is the company's own statement and own submission that they ought not have received any payment for that Easter Saturday public holiday at all.
PN273
That draws into stark relief the unfairness of relying on what amounts to the initial document in all of this, and that is the principles for the introduction of the 12 hour shift. We are, to accept the company's argument, we are to rely upon that above all else and ad infinitum, despite all of the unfairness that might have been observably accruing on employees, particularly with respect to that deduction of more than has been paid to employees, and particularly with reference to the company accepting that the trial has concluded and that there have been a set of givens around which the trial ought to have concluded.
PN274
Commissioner, I propose to invite Mr Cullinan to take the Commission through the matter of calculations, which we think is particularly relevant in this matter, if only for one reason, so as to ensure that there is clarity of what exactly is being sought. And we think that there is sufficient complexity in this to make that absolutely worthwhile, and that that would be worthwhile getting on the record, and then perhaps make some closing comments by way of submissions shortly thereafter.
PN275
THE COMMISSIONER: Thanks, Mr Woods.
PN276
MR WOODS: If it pleases.
PN277
THE COMMISSIONER: Yes, Mr Cullinan?
PN278
MR CULLINAN: If it pleases the Commission. The calculation the union is seeking is attached, is the draft order for the Commission at attachment 4 of the outline of submissions, the last two pages. I will refer to the first page of attachment 4 in the bottom examples under C, 2C. It clearly details that shift workers remuneration for public holidays should be based upon the hours worked per shift. These calculations are based on 11 public holidays and don't include the Easter Saturday public holiday recently gazetted by the State Government.
PN279
A 12 hour shift worker's base hours are made up of the following hours. This follows the draft order as attached, and at the bottom of the first page under C, ordinary hours worked is the total hours worked by each employee in a year. This contains the first 12 hours pay for those public holidays worked. So in the line where it refers to 12 hours for days worked already included in existing wage calculation, it is referring to 1735 hours, which is the total hours worked in a year.
PN280
That is simply the number of weeks on site, 46.89 weeks, multiplied by the number of hours per week, 37. The 46.89 weeks is the standard 52.18 weeks in a year minus five weeks annual leave and two days when the mill is shut over Christmas. This calculation is found on the first line of the annual wage base calculation included in the 1993 agreement, and that is included in the response to submissions as attachment 5. This 1735 hours includes 43.2 hours of work public holidays. This 43.2 hours is the total hours worked on public holidays in a year when averaged over a five year cycle, that is, two out of five shifts per year multiplied by the possibly worked public holidays, nine, multiplied by the hours per shift, 12.
PN281
Workers can only work nine because the mill is shut for Christmas and Boxing Day. These 43.2 hours are the 12 hours for days worked already included in the existing wage calculation, as indicated in the draft orders. The second component in the draft orders is the sum of additional pay for shifts worked and shifts not worked. These calculations are a variation of item 4 in the calculation in the '93 agreement previously referred to as attachment 5.
PN282
They are a variation of attachment 5 because the attachment 5 is from '93, and it is referring to eight hour shifts. The first part of this second component is hours for Christmas Day and Boxing Day. These two days aren't included anywhere else as the mill is shut. These days equal 24 hours or two times 12. The second part of the second component is the hours paid for public holidays that are not rostered to be worked. This component is equal to the hours of the shift, 12, multiplied by the average number of these days in a year, 5.4.
PN283
The 5.4 is calculated by taking nine days and multiplying them by three out of five shifts in a year. Three out of five shifts is used because this is the average number of shifts not worked in a five year cycle. This equals 64.8 hours, and is shown in the second last line of the first page of the draft order. The third part of this second component is the penalty hours. This is another 43.2 hours per year when workers are at work on public holidays, plus 50 per cent for the shifts worked. This makes the total payment for the shifts worked up to double time and a half.
PN284
This component is equal to the earlier component of 43.2 hours plus an additional half or 21.6 hours. This is a total of 64.8 hours, and is shown on the last line on the first page of the draft order. So this makes the total payment for the shifts worked - sorry, this makes the total public holidays hours therefore, takes into account the ordinary work hours of 1735 hours, which includes 43.2 hours of worked public holidays. Additional public holiday hours are 24 for the Christmas and Boxing Day shut, plus 64.8 hours for not worked public holidays, plus 64.8 hours as penalty hours for those shifts worked. This is a total of 153.6 hours plus the 43.2 hours already built in. If it pleases the Commission.
PN285
THE COMMISSIONER: Mr Cullinan, I think I missed a bit, and it was that bit after you initially stood up and said, if the Commission pleases.
PN286
MR WOODS: If it pleases the Commission, the Commission clearly appreciates the necessity of transcript today.
PN287
THE COMMISSIONER: Absolutely.
PN288
MR CULLINAN: And hence the basis on which we went through that matter expeditiously. And so by way of summary, Commissioner, that evidence before you and evidence that you have heard, indicates that there was a trial in respect of 12 hour shifts, that it is a matter of agreement, by correspondence at least, that that trial has concluded. At the conclusion of that trial the conditions in respect of the trial are, in our submission, themselves concluded, allowing therefore for this long outstanding matter to be addressed on its merits.
PN289
And we do make the submission very strongly that the matter of construction, inclusive, indeed, of the obviously complex matter of calculations is not overly helpful to the Commission in respect of this matter and, indeed, under section 170LW, nor does it have to be, nor does it have to be given the reserved matter, and even the nature of the dispute settlement procedure in the enterprise agreement.
PN290
What, in fact, is not as contentious as the construction agreement, the core agreement versus the Maryvale appendix of the agreement, contradictions contained within them, the matters of merit. And as the CFMEU has submitted, there is a fundamental unfairness in payments for public holidays being based on less hours than are worked, and that is itself inconsistent with clause 39.6 of the core agreement of the Australian Paper Agreement.
PN291
And that unfairness is compounded horribly by the circumstances where an employee who is absent by way of illness on a public holiday is deducted for more hours than they are actually paid for. And as we made the point earlier, an instance that did not occur under the eight hour shift arrangements, and we make the submission that that is fundamentally unfair. Amplified by the Easter Saturday arrangement which was never envisaged clearly in 1994, and was clearly handed down to be at the benefit of people working at the expense of their employers, the application of that principle from 1994 becomes a nonsense at least in respect of that Easter Saturday public holiday.
PN292
But we make the submission that it therefore demonstrates its redundancy for these purposes at this point in time, and that the merits are themselves of the greatest substance. Most amplified about that Easter Saturday matter is the fact that some employees, by the application of this principle by the company, have not been paid at all for that public holiday. A matter of construction perhaps, a matter of merit, a matter of industrial unfairness, a significant issue, and the one that we have placed before the Commission today.
PN293
In respect of the introduction of 12 hour shifts, we say that the relevant changes associated with the introduction of 12 hour shifts are significantly embedded into the workplace, and that the one issue that remains outstanding is finalising the payments base for hours which are worked on public holidays, and the base of payments for those hours that are worked on those public holidays. On that basis, with our evidence presented and primary submissions complete, and I think with a clear view about the perpetration currently in perpetuity under the company's view of this ongoing industrial injustice, we commend the draft determination and orders to the Commission. If it pleases.
PN294
THE COMMISSIONER: Thanks, Mr Woods. Yes, Mr Dalton?
PN295
MR DALTON: Thanks, Commissioner. What I would propose to do is just deal with some preliminary matters at the outset, and then in terms of our response in relation to the merit, I call Mr Tony Purdy and then Mr Dave Johnson, and then make some closing submissions dealing with the calculations, and also other merit matters that are outlined in the submissions that have been filed and served. Commissioner, the first matter I need to draw your attention to is the notification that has been lodged names Paperlinx Limited as the respondent.
PN296
My instructions are the proper employer is Paper Australia Pty Ltd, which is a related company of Paperlinx. And my client, Paper Australia, doesn't object to the notification changing the name of the respondent to be the proper employer in this case. Now, the next question, preliminary matter, is that what section is the notification to be taken to have been made? The notifications under section 99 of the Act, we don't dispute the allowability of the subject matter. It relates to payments for public holidays either as ordinary time or penalties, but there is an issue as to whether a formal order of the Commission would be effective in this particular case.
PN297
Notwithstanding that there is a leave reserved clause in the certified agreement, if you make an order that changes the existing position under the certified agreement, in my submission that would be inconsistent with the terms of the Maryvale mill annexure to the Paper Australia Certified Agreement 2000, and in those circumstances section 170LY subsection 1 means that the terms of the certified agreement would prevail to the extent of any inconsistency with an order that you make.
PN298
I simply make that point because I don't think that the Commission's powers under part VI of the Act through making an order in settlement of a dispute under section 99 will be an effective means to resolve this particular issue. The other section that is a possibility is a section 170LW. That is one that has been referred to by Mr Woods. That may be a means for dealing with the claim. Again, we don't object to relief from the rules in relation to the application under section 170LW that I understand has now been brought by the CFMEU.
PN299
However, I should point out that there is doubt in my mind as to whether this is properly characterised as a dispute over the application of the certified agreement. Because when you look at the terms of the certified agreement, I think that they are pretty clear. There wasn't an agreement to do what the union is asking the Commission now to do. There was a reserved matters clause in the agreement in relation to the issue. So what really is in dispute is what should be the payment arrangements for public holidays for the future?
PN300
The CFMEUs submissions at paragraph 14 of their outline of submissions, Commissioner, I think acknowledge that that is the case. You will see that they say that really the Commission's role in this case is to determine what is the appropriate course for the future. Now, we agree with that characterisation. Now, in my submission it may well be appropriate to do I think as Mr Woods originally contemplated, which is to deal with this dispute as a consent recommendation under section 111AA.
PN301
On reflection that appears to be the most appropriate way to deal with the matter. The parties have consented to the Commission dealing with this dispute, and it is clear that they consent to comply with the outcome of that. The CFMEU has flagged that any determination of the Commission to the extent that it might change the existing provisions of the certified agreement might be incorporated as a variation to the certified agreement under section 170MD(7). You will see that is also mentioned at paragraph 14 of its submissions.
PN302
I doubt that that is possible when one has regard to all the provisions of 170MD. It doesn't seem to me to be a variation of the agreement as contemplated under 170MD. But the outcome, even if it does change the existing position under the 2000 certified agreement would no doubt have to be factored in any enterprise bargaining negotiations into the 2003 enterprise bargaining negotiations. It may well be incorporated into the new agreement. But certainly the parties, including my client, agree to comply with the outcome of this process. That is what the parties agreed to following conciliation before you when the matter was before you initially.
PN303
You might recall that you gave some recommendations following conciliation, that the parties confer to work out how they want to deal with this. Do they want to deal with this through enterprise bargaining, or do they want to deal with this through a consent process whereby the Commission can determine that dispute, then the parties can take that outcome under their wing and move into enterprise bargaining. Now, it is the latter position that the parties agreed to, and in my submission the most appropriate way to deal with that is through the existing section 99 proceeding that you have before you, with the parties agreeing to comply with the consent recommendation under section 111AA in settlement of the dispute.
PN304
THE COMMISSIONER: What about, and I simply just float it, 170MD(6)?
PN305
MR DALTON: Yes. I don't think that there is any ambiguity, because the parties were not - it is quite clear that the parties had agreed that the 2502.9 would be the annualised hours, but that the parties agreed to leave the matter as a reserved item for the union to press.
PN306
THE COMMISSIONER: But it's application is ambiguous, is it not?
PN307
MR DALTON: I beg your pardon?
PN308
THE COMMISSIONER: The application is ambiguous, is it not?
PN309
MR DALTON: I don't think so, Commissioner. I mean, that may be a matter which the parties can confer following - if there is an outcome of this agreed process that does change attachment A to the Maryvale mill annexure, then they could confer on how that might be formalised. They might be best served just simply incorporating any outcome into a new agreement. If they can't reach agreement then they may confer as to how that is incorporated into the existing agreement in a formal sense, or whether, in fact, they need to do that, bearing in mind they have agreed to comply with the outcome.
PN310
THE COMMISSIONER: All right.
PN311
MR DALTON: Commissioner, I am instructed to ask that this matter be decided quickly for the reasons of the enterprise bargaining process. As you may be aware, the current enterprise agreement expires I think at the end of the month, and the reason why the company has agreed to this process and submit this dispute to a consent recommendation, a consent determination, is to ensure that that outcome is dealt with, and the parties can move on, whether the outcome is in the company's favour or the union's favour. The parties can then focus on the outstanding matters for the 2003 enterprise agreement.
PN312
Commissioner, the next preliminary matter that I want to deal with is to address you on how the dispute is to be characterised. That is, I think it is important in any determination that the Commission set out what it is being asked to decide, and that that be set out with particularity and a level of precision. Now, the parties have exchanged some correspondence in relation to this issue, and obviously you have received the submissions, witness statements and documents that will assist you in working out for yourself what it is the Commission is actually being asked to decide.
PN313
If I could leave the Easter Saturday issue to one side for a moment, in my submission could I ask the Commission to note this, because this is how I think that the dispute should be characterised. Under the Maryvale mill annexure to the Australian Paper Certified Agreement 2000, should the total averaged annualised hours for production employees on shift work remain at 2502.9 hours, or should the public holidays component be increased commensurate with the rostered length of a shift where that shift is longer than eight hours?
PN314
Now, that is the first question that the Commission has to determine. In relation to the bulk of the production employees who are rostered on 12 hour shifts, the increase that the union seeks is an increase of 44 hours to the 2502.9 hours. That represents a four hour increase from eight hours to 12 hours for each of the 11 public holidays. The second matter in dispute, Commissioner, is Easter Saturday. For the purposes of clarity I am instructed the company doesn't object to that matter being dealt with in this hearing also.
PN315
While I think there was some correspondence exchanged, and it was referred to I think very briefly in oral submissions when the matter was first before you, Mr Woods did refer to a Saturday holiday, it hadn't been the subject of focused conciliation by the Commission. But notwithstanding that, the company is content for the Commission to deal with what I would suggest is the second question for determination, which is this. How should the additional gazetted Easter Saturday holiday be incorporated into the calculations for the average annualised wage for the production employees on shift at Maryvale?
PN316
It is important to note that we accept that something should be incorporated into the annualised wage. That is a concession that, in my submission, didn't necessarily have to be made, because the certified agreement still operates, and it sets out what people get on an annual basis. There is no mention of Easter Saturday. There is only mention in the certified agreement in the main body of the certified agreement in public holidays.
PN317
If someone works on Easter Saturday, then the question is whether the existing annualised hours adequately compensates them for that, bearing in mind, of course, that already there is an item in the calculations that deals with Saturday penalties, so that is already included. And, of course, Easter Saturday is not a transferable public holiday, it always will fall on a Saturday. And also, of course, if you are not rostered on a public holiday, clause 39.1.1 of the core agreement simply says that the following days will be public holidays without loss of pay. And it doesn't mention Easter Saturday.
[10.54am]
PN318
So the company just decided, well, look, obviously the parties didn't contemplate Easter Saturday being an additional public holiday, and couldn't have contemplated that over the life of the three year agreement from 2000. It has now occurred, and the company thinks that the fair and reasonable thing to do is to incorporate it into the annualised wage calculations. The question is how that should be done. So in my submission that really is the second question for determination, and it can actually confuse things if it is melded into the first question for determination, particularly given that the public holiday of Easter Saturday is not a transferable holiday.
PN319
Commissioner, I think it is also clear that those two questions that you are asked to determine are on a prospective basis, that is, consistent with what is put by the CFMEU in paragraph 14 of its submissions. You are being asked to determine what is the appropriate course for the future. There is another matter in dispute, Commissioner, and that is, how should deductions for an absence on a public holiday be treated for production employees on shift at Maryvale?
PN320
Now, as you have probably already noticed, both when the matter was first before you through the oral submissions put by Mr Woods, and certainly on the material that has been filed and what is put today, that the CFMEU makes much of that dispute in support of its argument on the first question for determination. It seems to be preferring to use what it regards as an unfair process for deductions for absences as a fulcrum to argue the inverse of that, and say, hey, give us the 12 hours for the annualised wage.
PN321
Now, Commissioner, what I have got instructions on is this in relation to this third matter. While the issue of deductions is a separate matter, there is no doubt it is related to the main issue in dispute. The Commission has sufficient material on the issue of deductions for it to form a view as to how that should be dealt with. Now, the company has a position on why the deductions have been made in that way over the years. However, my instructions are that if the Commission is uncomfortable with that and thinks that that process of deductions unfair and unreasonable, then the company is open to recommendations or directions from the Commission to address that matter.
PN322
The only qualification on my instructions that I have been asked to put on that, is that there would need to be some appropriate safeguards to ensure that absences don't escalate because of the issue that we will deal with in evidence, and that is that on 12 hour shifts on public - on 12 hour roster there has been a tendency for people to take public holidays off, and that is why the original process for deduction of the penalties has been in place for a number of years. That is the only qualification.
PN323
So really that can be the third question for determination. We certainly invite the Commissioner to do that if the Commission is uncomfortable about the deductions issue. What we specifically do not want is the Commission's view on the very important first question for determination to be tainted by any adverse views as to the company's approach over the years to the deductibility of absences for public holidays.
PN324
Commissioner, in relation to the merits, the company relies on its outline of submissions that were filed and served on 30 May. I don't know whether you want to mark that document in any formal way.
PN325
PN326
MR DALTON: If the Commission pleases.
PN327
THE COMMISSIONER: Now, there is a statement of Mr Purdy which I would expect at some point you would tender.
PN328
MR DALTON: I propose to call Mr Purdy at this stage now, Commissioner.
PN329
THE COMMISSIONER: And I have two statements of Mr Johnson, and one appears to be a response to the union's outline of argument; is that right?
PN330
MR DALTON: It deals only with the Easter Saturday issue, which was not an anticipated subject matter at the time the first statement was filed.
PN331
THE COMMISSIONER: All right.
PN332
MR DALTON: So I call Mr Purdy.
PN333
PN334
MR DALTON: Thanks, Mr Purdy. Could you state for the purposes of the transcript record your full name and address?---Tony John Purdy, 7 Bushfield Court, Traralgon.
PN335
All right. And you are employed by Paper Australia as the Group General Manager, Maryvale and Tasmania?---Correct.
PN336
Yes. And you have held that position for two years?---Yes.
PN337
And you have been working for the paper industry and various Paperlinx sites over a number of years in managerial positions?---That is correct, yes.
PN338
Yes. You have prepared a statement for this proceeding?---I have.
PN339
And do you have a copy of that in front of you?---I do.
PN340
Are the contents of that statement and the attachments to it true and correct to the best of your knowledge?---They are.
PN341
PN342
MR DALTON: Mr Purdy, at paragraph 7, you deal with part 5 of the principles that are attached to your statement, and you refer to the fact that the trial was to be at least 12 months unless it was earlier proven to be adversely affecting either the employer or the employee. Can I ask you whether any formal review as contemplated under those principles was conducted?---I can find no evidence of that review or a, I guess, a sign off by the company that the trial was completed.
**** TONY JOHN PURDY XN MR DALTON
PN343
All right. Now, you may have heard that the CFMEU rely on a letter that you sent in, I think, November 2002. I will just refer you to it. I think it is attachment 3, annexure M, Commissioner. It is the second letter, I think, 14 November 2002, a memorandum. I don't propose to give you a copy of this, Mr Purdy, I will just simply read the relevant parts of it. Does the Commission have that?
PN344
THE COMMISSIONER: It is annexure?
PN345
MR DALTON: It is a little bit hard to follow. I think it was the second letter - - -
PN346
MR WOODS: It is attachment 3, annexure M, the second document.
PN347
MR DALTON: Do you have that?
PN348
THE COMMISSIONER: There are so many annexures and letters.
PN349
MR DALTON: Yes, consistent with the certified agreements I think, Commissioner.
PN350
THE COMMISSIONER: Yes. Look, I think both parties are doing a wonderful job of confusing the Commission, but keep going.
PN351
MR DALTON: Mr Purdy, in that letter you wrote to Mr Moule and you said after - you referred to a meeting that you held in late October in relation to the particular matter in dispute, and you said:
PN352
On consideration of all the information available to me I wish to advise you of the following.
**** TONY JOHN PURDY XN MR DALTON
PN353
And then you say that the position on no extra cost remains unchanged, and that you strongly:
PN354
We feel strongly that the intentions stated in the trial document has not altered since commencement or completion of the trial.
PN355
And then you say:
PN356
We acknowledge the trial has now finished, but realise there has been no formal documentation to clarify the current position.
PN357
Can you explain why you made that statement?---Well, normally when you do a trial you would have a sign off of that trial. This is very unusual in my experience that the trial has not been formally signed off by both parties. So at some stage we needed to say the trial had been finished, and review the trial and the conditions under what the trial was conducted.
PN358
All right. Well, do you have an example of something where there has been a review and there has, you know, it has been signed off in a formal way, as you suggest?---Not at Maryvale in my experience, but certainly at the other sites I have managed there is a formal process and sign off of that trial process.
PN359
All right. And you weren't able to find anything in this particular case?---There was no documentation at all in this case, which is why I proposed to send that letter out.
PN360
All right. Did you ask Mr Moule or anyone else to provide you with documentation?---At various meetings we asked for information regarding the trial, and none was forthcoming.
**** TONY JOHN PURDY XN MR DALTON
PN361
Okay. So then why did you say that you accepted that the trial was over?---Mostly the trial, from my point of view, was over by virtue of the fact that a number of different 12 hour shifts had been run. The trial had been going for some time, and from all intents and purposes the completion of that was finished.
PN362
All right. So based on what had actually happened?---Yes.
PN363
Now, have you, or to your knowledge, any of your other managers ever agreed to depart from this no extra cost principle?---No, there is no evidence that myself or previous management have ever agreed to deviate from that.
PN364
All right. There was a meeting in December 2001 where you were presented with a copy of a letter from Mr Russell Reece, who was the previous manager, I think. That letter dated back to 1995. It was put to you by Mr Moule that that indicated the company had, in fact, agreed to convert all entitlements over to a 12 hour basis upon the move to 12 hour shifts. Could you state to the Commission your recollection of that particular meeting and your position in relation to that issue?---That meeting, we had that document presented to us, and I guess the interpretation of Mr Moule and myself differed tremendously. Mr Moule relied on the all entitlements comment in the letter. I guess from my point of view I relied on the fact that the - and to read from the letter - all entitlements expressed with the site agreement were to be converted to reflect 12 hour shifts, ie, not eg, ie, absences were to be debited at the rate of 12 in lieu of eight hours. Now, interpretation was that entitlements referred to compassionate leave only, as the heading to that letter indicated.
PN365
All right. Paragraph 20 of your statement, you refer to the brief period of industrial action in, I think, September 2002, and then you say:
PN366
This industrial action petered out. This did not surprise me as I do not believe that the employees regard this as a key issue.
**** TONY JOHN PURDY XN MR DALTON
PN367
On what basis do you say that the employees don't regard this as a key issue?---One of my roles as manager of the site, I visit the various areas in the site, and I had lengthy discussions with employees at the site, and it certainly appeared to me that it did not have support across the site. 12 hours was a key issue for them, certainly that the payment wasn't one that was driven from the site.
PN368
When you say 12 hours was a key issue for them, what do you mean by that?---To remain on the 12 hour shift was a key issue.
PN369
As opposed to?---Going back to an eight hour shift.
PN370
Right. Have any of the employees indicated to you their dissatisfaction with the annualised wage arrangements for the 12 hour shifts?---I am not sure I understand the question.
PN371
Have any of the employees, so in your discussions with the employees, have any of them indicated to you that they do regard this payment issue that the union has brought forward, as a key issue?---The key issue for them was to say on the 12 hours. Payment was a secondary consideration.
PN372
At paragraph 27 of your statement you talk about the cost impact of moving to a payment for holiday based on 12 hours. I think the basis of your calculation is self explanatory. And then you say, plus the automatic on costs. What costs are you referring to there?---All costs associated with the employees superannuation and others needed to be added on for any wage increases.
PN373
Okay. What do the operators get paid? Are you able to give an indication?---The average operator at Maryvale mill gets about $75,000 on average. It ranges from probably down to 50 up to well over the 100,000 mark, but on average of the 550 production employees, 75,000 is the average employee wage. So by any standard we rate that as a significant wage.
**** TONY JOHN PURDY XN MR DALTON
PN374
How does that compare with other mills such as Burnie and the other sites?---Other mills where people do, in fact, the same function, Maryvale would be paid $10,000 more than any other mill on average.
PN375
At Maryvale?---At Maryvale.
PN376
Yes. When you say on average 75,000 per year, that is for a production employee on the 12 hour roster?---Correct.
PN377
All right. At paragraph 29 of your statement you talk about the cost impact, meaning that it would be hard to justify staying on 12 hours, especially if the union wants to negotiate an EBA based wage increase. Can you explain what you mean by that, what your position is on that?---Basically there was, I guess, when the 12 hours was introduced, there was the perception that 12 hours would result in significant operational savings. Speaking to the operational people at both Maryvale and other sites, we have yet to see those operational savings, so we have no hesitation to go back to an eight hour shift, because we are not seeing those savings as a result of the 12 hours. In fact, we are seeing major problems with the 12 hours, re absenteeism and training.
PN378
Well, you say that. But Mr Woods says that at least by 1999 we can be satisfied that the company would have been satisfied that the targets for the move to 12 hours have been met, and therefore that meant that the trial had been over. Now, you accept the trial has been over?---Mm.
PN379
What do you say about that?---Well, there were no targets set or no continual review of the operational efficiency improvements and so forth during that period. And, like I say, talking to the operational people that operate our mills, people are prepared to go back to the eight hour shifts because of the other issues associated with 12 hours.
**** TONY JOHN PURDY XN MR DALTON
PN380
All right. Well, there is a suggestion, I think, in the CFMEU material that the company perceived a lot of benefits in moving to 12 hours. And you seem to be saying that that is not the case. How do you explain that?---I say we have not seen those benefits in the efficiency of our operations as a result of the 12 hours, as simple as that. The facts speak for themselves.
PN381
I have no more questions, Commissioner.
PN382
THE COMMISSIONER: Thank you. Yes, Mr Woods?
PN383
PN384
MR WOODS: Mr Purdy, when did you become responsible for Maryvale?---About two years ago.
PN385
So you weren't at Maryvale when the original arrangements were put in place with respect to the 12 hour agreement?---That is correct.
PN386
Notwithstanding some of the other questions, we understood you to say that the trial was finished, and you accept that the trial is finished?---On the date I put that letter out we basically decided that the trial was finished.
PN387
14 November 2002?---If that is the date on the letter.
PN388
You commented that in your view and in your experience the conclusion of the formal trial would involve a review?---Correct.
**** TONY JOHN PURDY XXN MR WOODS
PN389
You concluded the trial, you just stated, on 14 November 2002. Did you propose a review?---No.
PN390
Whose obligation was it to propose a review?---Both parties are normally part of that review. We had disagreement on when the trial actually finished. The union believed the trial finished in '99, I believe the trial had not been signed off at that stage, so hence the letter.
PN391
On 14 November 2002, just confirm this, the trial was concluded by your correspondence, yet you didn't call on a review?---The union also believed the trial to be completed in '99, and there was no review done in '99, so there was no evidence that the trial had been reviewed or concluded at any stage by either party.
PN392
And you have conducted no review since under the terms that would be considered appropriate under the 1994 agreement for the introduction of 12 hour shifts associated with the trial. You have conducted no review since that time under those terms?---I think my letter indicated that a review needed to take place, in that letter in the second and third paragraph.
PN393
In fact, does it not say - I don't think you have this in front of you, Mr Purdy - does it not say that, in fact, what you do is you propose the following:
PN394
To discuss finalising the terms of the completion of the trial and to propose the following options which are, in summary, to revert to an eight hour shift system.
PN395
And then subsequently you state that you uphold the principles of the trial document. Is that correct?---I don't have the letter in front of me, I am afraid.
**** TONY JOHN PURDY XXN MR WOODS
PN396
My apologies. That is the attachment 3, annexure M, third page, second letter. I just ask the question with respect to what you have just been taken through. That is not of itself a trial, is it, a review of the trial, is it? That is a statement of claim by the company, is it not, in respect of eight hour shifts, reverting to eight hour shifts as an option arising from the conclusion of the trial?---The second sentence:
PN397
We acknowledge the trial has now finished, but realise there has been no formal documentation to clarify the current position.
PN398
And then you go on and you say, in the fourth dot point:
PN399
We would propose the following options, and revert to an eight hour shift roster system.
PN400
Etcetera?---But prior to that we say we meet to discuss finalising the terms of the completion of the trial. I guess by implication I would see that as a - - -
PN401
But you have not gone through that exercise, have you?---No.
PN402
And you comment there that one of the options from the company's point of view is to return to an eight hour shift arrangement?---That is correct.
PN403
When you went out and travelled the mill and talked to employees, why was starting on 12 hour shifts an issue for them? How would that have arisen?---Because basically we made a comment that the trial was done under certain conditions. There was no indication from the union that those conditions were specific to the trial and things would change after it. There is no correspondence to say that. So from our point of view, to change the conditions after the trial, we had to re-assess our position, and hence one of the positions, it was going to cost us more dollars, and we wouldn't be looking to go back to a situation of a no cost option.
**** TONY JOHN PURDY XXN MR WOODS
PN404
So the fact what you said in these travels around the mill is, in the event that you continued to pursue this claim because it has an extra cost, then the company will pursue you over the eight hours roster, and therefore people raised their concern with you about working, continuing to work a 12 hour roster. It was off the back of comments that you made?---It was on the back of the comments that the trial conditions had been agreed by both parties, and those conditions were now being changed.
PN405
Comments by you?---No. Trial conditions were set by both the company - both parties, and both parties agreed to it. There was no indication that they were for the trial only, hence the position was that the union were looking to change the terms and conditions.
PN406
Did anyone raise with you, without you having already raised this overall matter with them, their desire to stay on 12 hour shifts?---Everyone raised the issue of - - -
PN407
No. The question was, before you raised these issues with them did anyone raise the matter of staying on 12 hour shifts with you?---I can't remember the particular - I spent a fair bit of time wandering around the mill. I can't remember the actual comments made, but obviously the issue of the whole 12 hours was raised with me.
PN408
Well, I put it to you that what you have just put to Mr Dalton is, in fact, a situation that you created deliberately off the back of this correspondence in your communications with employees to say in the event that you pursue this claim, we will seek to put you back on eight hour shifts, and that that is what elicited the response from employees in respect of, I would rather stay on the 12 hour shifts. You were offering them the gun or the bullet?---No. The position was that the union were looking to change the agreed terms and conditions of the 12 hours. We weren't looking to change the terms and conditions of the 12 hours. I think that is an important point.
**** TONY JOHN PURDY XXN MR WOODS
PN409
Do other mills that you have managed in this Australian Paper Group pay for 12 hours on public holidays?---I believe they do.
PN410
Which are those mills?---The Tasmanian mills.
PN411
That would be Burnie and Wesleyvale?---Burnie and Wesleyvale.
PN412
THE COMMISSIONER: Do they pay for 12 hours?---They pay for 12 hours, but - - -
PN413
Do they have an averaging of salary?---They have a different calculation, but they do pay for the 12 hours. But, again, I think to simply cherry pick that out of the whole arrangement when, in fact, those mills are paid some $10,000 less for the same jobs, is not a fair comparison.
PN414
MR WOODS: I will refer you to your - it is the case, isn't it, that at Burnie and Wesleyvale the company pays for the 12 hour shift arrangements?---That is correct.
PN415
And for the public holidays?---That is correct. They also pay $10,000 less overall even in spite of the 12 hours payment for the same jobs.
PN416
Can I refer you to your witness statement, and specifically to page 3 of TP7, just correspondence by you - from you, rather, sorry, to staff in respect of this dispute, and, in fact, refer you to the final paragraph, which says that:
PN417
Management has officially advised the CFMEU that any cost increase associated with the 12 hour shifts cannot be justified, and hence we have no alternative but to commence negotiations to revert to the eight hour shifts roster.
**** TONY JOHN PURDY XXN MR WOODS
PN418
Is this before or after you walked around the mill to talk about this issue with employees?---I honestly can't remember.
PN419
And obviously we note that response. I have no further questions at this time, Commissioner.
PN420
THE COMMISSIONER: Thank you. Mr Dalton?
PN421
MR DALTON: No further questions.
PN422
THE COMMISSIONER: Thank you.
PN423
Mr Purdy, in the averaging of the salary there is 11 public holidays calculated?---Correct.
PN424
Two everybody has off, Christmas Day and Boxing Day, which leaves nine, when I went to school. I take it from the documents - and correct me if I have read them wrong - that possibly out of the remaining nine, four are - sorry, let me put it back the other way. Possibly people are expected or rostered on to work up to five of those nine remaining holidays. Is that - - -?---I think that is correct. I haven't got the calculations here.
PN425
I think that is the way I have read it. So it leaves four public holidays that they are paid for, but because of the roster system would not be expected to work, or would not be rostered on to work. Is that right?---I think that is correct, yes.
**** TONY JOHN PURDY XXN MR WOODS
PN426
Right, okay. And the union's argument is that when they work on a public holiday that they be paid for the 12 hours for the actual time worked. Has anyone done the calculation and said, well, if, because of the roster system, you work five of those nine remaining public holidays, and if we had to pay your 12 hours, this is what it comes out to. But because you are not required to work the four, and there might be no payment for those four, has anyone done the calculation as to what the difference might be?---I am not the expert in the calculation, but put it simply, the days that they work, whether you work it on 12 hours or eight hours, in fact, the hours don't change because you either work three on five or two on five, so, in fact, they don't change. What changes is the hours that you are paid for, for the days you don't work. So that is - - -
PN427
Right. But surely though that alters the calculation? One says, the union says, we expect to be paid for 12 hours that we work instead of eight, and they only work five out of nine, and were paid for 12 for those five out of nine, what the difference in the calculations would be. Am I - - -
PN428
MR DALTON: Perhaps, Commissioner, if I could address you on that point. The proportionate increase in hours that you work on a day that you are rostered on, moving from eight up to 12, is counter balanced exactly by the proportionate decrease in the number of attendances at work. The effect of that is, in relation to the average time that you are rostered to work on a public holiday, and the length of your shift, times the relevant penalties that apply for work on a public holiday, equals exactly the same figure, whether it is under an eight hour roster, a three by eight hour roster or a two by 12 hour roster. The differences in the calculations arise in relation to the average shifts per year - sorry, the average public holidays, number of public holidays per year on which you are not rostered to work. That is the difference. And we can demonstrate, or we will be explaining that in more detail.
PN429
THE COMMISSIONER: All right.
PN430
MR DALTON: Mr Johnson is, I think, pretty well equipped to deal with any questions you might have on those issues, and also I propose to address you in some detail about the calculations.
**** TONY JOHN PURDY XXN MR WOODS
PN431
THE COMMISSIONER: Okay. All right.
PN432
PN433
THE COMMISSIONER: Yes, Mr Dalton?
PN434
PN435
MR DALTON: Thanks, Mr Johnson. Could you state for the purposes of the transcript record your full name and your address?---David William Johnson, 6 Delpura Court, Churchill, Victoria.
PN436
And you are employed by Paper Australia as the Business Manager?---That is correct.
PN437
Yes. How long have you held that position?---Slightly over 12 months.
PN438
Okay. And you have worked for Paper Australia and its predecessor companies for 24 years?---That is correct.
PN439
Yes. You have prepared a statement for this proceeding?---I have.
PN440
Actually you have prepared two statements?---That is correct.
PN441
Yes. That is the first statement dated 30 May?---Yes.
PN442
Yes. And a supplementary statement?---That is correct.
PN443
All right. Can I deal firstly with the statement dated 30 May. Are there any changes that you wish to make to that statement?---Yes, there is two changes I would like to make to that statement.
PN444
Yes?---Clause, or paragraph 20, go across to the end of the first line, to the word total, and then eliminate the words of 197.6, and insert of 1735 ordinary hours in item 1 plus 109.6 hours in item 4.
**** DAVID WILLIAM JOHNSON XN MR DALTON
PN445
THE COMMISSIONER: Clause 20, as such in calculating the average annual wage the parties agree to the total of 1735 ordinary hours; is that right?---Yes.
PN446
Yes. And where is the other - and that follows on, you are saying?---In item 1, which refers to clause, or paragraph 19.
PN447
All right?---Plus 109.6 hours in item 4.
PN448
MR DALTON: Perhaps if you read that first sentence to us all so we are clear on the changes?---
PN449
As such in calculating the average annual wage the parties agree to a total of 1735 ordinary hours in item 1, plus 109.6 hours in item 4, as representing the average number of hours for public holidays, including penalties per annum.
PN450
THE COMMISSIONER: Okay, I have got that, thanks.
PN451
MR DALTON: Okay?---If we move over the page to the first dot point, cross out 88 hours of. Go across to the end of item 1 and cross out everything within the brackets, and insert at the end of item 1, being the total ordinary hours worked for the 363.25 worked days divided by five crews.
PN452
You might just read that back to us a bit slower?---Okay. Ordinary hours included in item 1 being the total ordinary hours worked for the 363.25 work days divided by five crews.
PN453
THE COMMISSIONER: 362.5 work days?---363.25.
**** DAVID WILLIAM JOHNSON XN MR DALTON
PN454
Right, yes.
PN455
MR DALTON: Work days divided by - - -?---Worked days.
PN456
- - - five crews?---Yes.
PN457
THE COMMISSIONER: Divided by five; is that right, divided by?---Five crews. I then take the Commissioner to paragraph 33, and I wish to delete that entire paragraph.
PN458
Okay.
PN459
MR WOODS: Excuse me, Commissioner, was that 33 or 23?---33.
PN460
THE COMMISSIONER: I note, Mr Johnson, that you are a pacifist. I determine whether somebody is a pacifist or whether they are an aggressive person, because most people say I refer to the bullet point. You said a dot point, so to me you are a pacifist, the bullet point you are aggressive?---I appreciate it.
PN461
MR DALTON: Are there any other changes that you wish to make?---Not to that document.
PN462
All right. Well, with those changes, are the contents of the statement and the attachment true and correct to the best of your knowledge?---They are.
PN463
**** DAVID WILLIAM JOHNSON XN MR DALTON
PN464
THE COMMISSIONER: The supplementary statement we will mark D4.
PN465
MR DALTON: All right, Commissioner. I was just going to take the witness through - - -
PN466
THE COMMISSIONER: Sorry, you haven't gone through that yet?
PN467
MR DALTON: I think he said he wanted to make one change to that supplementary statement?---That is correct.
PN468
Is that correct?---Yes. There is a slight wording error in 6.1. The day workers who did not work on the public holiday would receive no additional payment. In 6.2, after the words, actually, insert the words, to be. And under 6.3, after the - on the second line, after the words, were, after the word, were, insert the words, to be.
PN469
All right. Well, with those changes are the contents of your supplementary statement dated 5 June 2003, true and correct to the best of your knowledge?---They are.
PN470
PN471
MR WOODS: Commissioner, if I might, a procedural matter, and excuse me. We had intended some significant cross-examination of a couple of matters contained within the table provided by Mr Johnson, and the subsequent matters which have been amended. We would seek the Commission's assistance to have a few minutes to consider a couple of these matters, either now or at the end of examination-in-chief, to reconsider the position.
**** DAVID WILLIAM JOHNSON XN MR DALTON
PN472
THE COMMISSIONER: Sure, that is fine, thanks.
PN473
MR DALTON: All right, Mr Johnson, at paragraph 19 of your first statement you set out a table which represents the calculations in schedule A of the Maryvale agreement?---That is correct.
PN474
Yes. Could I ask you just to elaborate slightly in relation to each of the descriptions that you have got. For item 1, being the ordinary hours worked per annum, you refer to them as being the number of weeks in a year minus the annual leave entitlement multiplied by the average number of hours actually worked per week. Could you just explain to the Commissioner the calculations for that?---Okay. The calculation for the 1735 ordinary hours is made up of 363, or it was 365.25 days in a year.
PN475
So that is the average number of days in a year?---That is correct.
PN476
Including the leap year?---Yes. We subtract the two days that are not worked.
PN477
Christmas Day and Boxing Day?---Christmas Day, Boxing Day each year.
PN478
All right. So you come up with 363.25?---That is correct.
PN479
Yes?---From that figure we multiply it by - can I refer to - I have a breakdown of these exact calculations, or do you want me to take you through it without it?
PN480
You say it is the number of weeks in a year, so are we then to take it that you divide that figure by seven?---Divide that by seven, is correct. It gives you the number of weeks in a year, which will come out at 52.19.
**** DAVID WILLIAM JOHNSON XN MR DALTON
PN481
Yes, 52.19. And then you say minus annual leave entitlement?---Which is five weeks.
PN482
Five weeks annual leave for shift workers?---That is correct.
PN483
All right. So that gives you?---47.19.
PN484
Okay. Multiplied by the average number of hours actually worked per week?---Which is 37.
PN485
Which is 37?---That is correct.
PN486
All right. So the 1735 figure, is that the total number of hours?---Well, the figure that you would have just achieved needs to be divided by five for the crews.
PN487
Yes.
PN488
THE COMMISSIONER: So the 1735 needs to be divided by - - -?---No. The figure that you would have reached prior to that number.
PN489
Okay, yes?---Okay. If you multiply that previous equation out, you will get a number that needs to be divided by five to achieve the average worked hours, ordinary hours for a worker on that roster, which will be 1735.
PN490
So the 47.19 weeks is multiplied by 37 hours?---37.
PN491
And then you divide by five crews?---I need to refer to the calculation.
**** DAVID WILLIAM JOHNSON XN MR DALTON
PN492
MR DALTON: The 37 hours is the individual hours worked?---That an individual works.
PN493
So you don't need to divide that by five?---So you don't need to do the division by five. Okay. It is a matter of whether you are dealing with the mass or the individual.
PN494
THE COMMISSIONER: Okay. So I scrub out the five crews?---It has to be individualised at some point.
PN495
MR DALTON: Okay. So another means could be to come up with the total hours of ordinary hours actually worked in a year by the company, and then divide that by - - -?---By five.
PN496
By five?---Which will give you what each crew would work.
PN497
Wold give you the figure, and then you work that down. Yes, okay. Annual leave, number of weeks annual leave, that is five?---That is five weeks, and it is paid at 35 hours per week.
PN498
All right, 35 ordinary hours per week?---Yes.
PN499
Okay. Leave loading?---Leave loading of 32.5 per cent on 175 hours, which calculates at 56.9 hours.
PN500
All right. And item 3, continuous operation penalties, there are two items to this. Item 1, the hour per week?---That is a result of a calculation for the fact that people work 37 hours rather than 35. The two hours extra is paid at half time times two, which is one hour per week, multiplied by the 52 weeks. They get that paid even during the weeks when they don't - when they are on annual leave.
**** DAVID WILLIAM JOHNSON XN MR DALTON
PN501
So that is the additional penalty for those two hours?---That is correct, yes.
PN502
Not already included in the ordinary hours component?---That is correct.
PN503
Okay. And item 2 of item 3?---Item 2 of item 3 is the penalties that are paid for working through weekends, which means that they get half time penalty for Saturdays and time penalty for Sunday. That equates, once divided by five, averaged over the period, comes to 374.4 hours per year per employee.
PN504
Okay. Now, in each of these items, 1, 2 and 3, the figures in the right hand column represent the individual's annual hours?---On average, yes.
PN505
Yes. So total hours divided by the number of crews, being five, will give you the right hand figure?---That is correct.
PN506
Okay. In relation to item 4, that deals with public holidays. And the first matter is the number of public holidays per year, being 11, multiplied by the duration of the daily shift, being eight?---That is correct.
PN507
All right. That doesn't reflect public holidays that are on average worked by an individual, does it?---No. That is eight hours per public holiday for 11 public holidays that are in the year, irrespective of whether they are worked or not.
PN508
Okay. Well, in relation to item 3.2, for example, weekend penalty rates, do people get penalty rates whether they have worked them or not, or is that calculation directed at on average how many weekends you would be working?---It is directed on average. I mean, it is the right number, because on average in a year that is how many weekend Saturday and Sunday hours an individual will work.
**** DAVID WILLIAM JOHNSON XN MR DALTON
PN509
Okay. In relation to public holidays, on average how many public holidays would an eight hour shift worker work in a year?---5.4.
PN510
5.4?---Yes, on average.
PN511
All right. And they get the additional penalty payment in item 4.1 for the 11 days?---They get paid public holidays at eight hours per day for 11 days.
PN512
Okay. How many days on average per year does a 12 hour shift worker work on a public holiday?---3.6 public holidays of 12 hour shifts.
PN513
All right. So it is 5.4 times eight hours?---Yes.
PN514
For an eight hour shift roster, and?---3.6 times 12 for a 12 hour shift roster.
PN515
Okay?---Which will both come out at 43.2 hours on average.
PN516
All right. Now, item 4, there is a second matter dealt with there, which is the number of public holidays per year on which work is rostered?---Yes.
PN517
Could you explain how that figure of 21.6 is arrived at?---Yes. We still haven't - the penalty applicable to a public holiday is half time, and it still hasn't been paid in any other part of the calculation, so it needs to be picked up for the half time penalty for working on the public holiday. So item 2 is actually the nine public holidays that are worked across the site, multiplied by 24 hours per day, which will be 216. I am just making sure that calculation is correct. Multiplied by .5 for the half time penalty, which will bring it back to 108, and then divide it by five to give you a figure of 21.6 hours penalty to be paid on average to each employee for work that will be performed on a public holiday.
**** DAVID WILLIAM JOHNSON XN MR DALTON
PN518
All right. So that figure is also shared?---Yes, that is correct.
PN519
Okay. So the only item in the calculations that is not shared based on the average times you actually work is item 4.1?---Item 4.1 is paid to everybody at eight hours rate for the 11 public holidays that are in the agreement.
PN520
Okay. At paragraph 25 you talk about the agreement reached between the company and the union to introduce and trial the 12 hour shift rosters to replace the eight hour shift roster. Now, do you recall in what circumstances that occurred?---The recollections are vague after nine years, and I wasn't heavily involved in it. However, my understanding of it is that the converting room employees at Maryvale created a groundswell at Maryvale for a 12 hour shift roster.
PN521
Why did they do that?---The local - some of the local power industries had started trialing similar rosters, and they had word that one of the Tasmanian mills was also working a 12 hour roster in their converting room. The perceived benefits at that point in time were that the social life of a shift worker was far greater on the four days on, four days off scenario than it was on the previous eight hour shifts where you work 21 days out of every 28, and seven night shifts in a row, seven afternoon shifts in a row.
PN522
Okay?---It was really a lifestyle change.
PN523
All right. And do you have much to do with the 12 hour shift rosters in your job?---Not a lot. I mean, the people that work in my areas all work 12 hour rosters or predominantly work 12 hour rosters.
PN524
What has been your experience of it, the 12 hour roster?---I think it has been very good for the workers. I think there is no doubt we have realised the gains in lifestyle. Certainly a lot of people did work the seven in a row night shifts, and a lot of people struggled through that.
**** DAVID WILLIAM JOHNSON XN MR DALTON
PN525
That is under the eight hour roster?---That is under the eight hour. I don't see the same level of issues with people getting through the two nights, so overall I believe the workers are happier with the 12 hour roster, far happier.
PN526
What about from the company's viewpoint?---In the company viewpoint it has taken away a lot of the communication channels for direct interface between the area manager and the guys working the shift roster. Previously the shifts rang from 8 am till 4 pm, 4 pm until midnight, midnight till 8 am. Our day shift managers working a reasonable day of 7.30 till five could talk to each of the three crews in that 24 hour period. When we moved to the 12 hour roster, which runs from 7 am till 7 pm, the only contact an area manager can have is during the day shift, unless they want to extend their hours from 6 am until sometime later in the day.
PN527
What about absences?---I haven't got statistics on it. One of the big pushes from the power industry at the time of the 12 hour roster being introduced was the reduction in absenteeism. I don't have the data here, but my perception would be that we haven't seen the drop off in absenteeism.
PN528
What about covering unplanned absences under the 12 hour roster?---On the eight hour roster, because you had a 16 hour gap before your next shift, if your relief didn't come in at the end of your shift, you stayed for another eight hours and covered that absence. When we moved to 12 hour shifts, it actually means you have to call somebody that is on one of their days off, enjoying the lifestyle advantage that we have - that has been built into this roster, and call them in to come and cover the absenteeism or the extra work that the company from time to time may wish people to do.
PN529
Okay. Perhaps now is a good point to ask you some questions on the deductions and the approach that the company has adopted on that issue insofar as an absence, unplanned absence occurs on a public holiday. Do you recall when that particular arrangement was first introduced?---To my knowledge the deduction - are we talking about on the eight hour shift?
**** DAVID WILLIAM JOHNSON XN MR DALTON
PN530
Yes, in relation to the eight hour shift?---Well, on the eight hour shift, I mean, it is in the '93 agreement. I don't know when it was exactly introduced, so I assume at that point in time.
PN531
All right. Well, perhaps if you can confirm I think what Mr Moule had put. What was the methodology applied under that agreement?---Under that agreement a person, if they were absent from the job, was deducted 20 hours of pay, of which eight was then reinstituted by drawing down sick leave credits, so the individual lost 12 hours penalty for being off for that day under an eight hour roster.
PN532
All right. And on what basis did that particular arrangement in relation to the eight hour shifts become applicable for the 12 hour roster?---When we went to 12 hour roster, the eight hours - on the eight hour shift you were taking off two and a half times the shift rate, which accounts for the 20 hours. When we went to the 12 hour roster, two and a half times was also deducted, which then left a penalty of 30 hours deducted for a public holiday absence. If a person had sick leave credits to draw on, that was then lifted back to an 18 hour deduction, and subsequent agreement, as Mr Moule pointed out, has led to people being able to draw down further credits to come back to a neutral situation if they have those credits.
PN533
Okay. Now, some questions were asked of Mr Moule to distinguish on the one hand the deductions for an absence, and on the other hand the earnings that you get under the annualised wage system under a 12 hour roster when you work on a public holiday. Could you clarify for the Commissioner, what are the earnings under the annualised average wage in attachment A to the Maryvale mill annexure, what are the hours that you get paid for working on a public holiday?---I would believe that to be 26 hours.
PN534
All right. Mr Moule said it was 24. Can you explain why you say it is 26?---I can't explain why Ian got 24. On my calculation that would be 12 hours ordinary built into item 1.
**** DAVID WILLIAM JOHNSON XN MR DALTON
PN535
So that is the ordinary, 12 hours for the ordinary hours, no loss of pay?---As per the previous table. Eight hours public holiday pay.
PN536
Gives you 20?---And the averaging of the penalties that I said were applicable to public holidays, that is the nine times 24 times .5, then divided by the five crews, brings you down to 21.6, and you work 3.6 public holidays in a year, will come out with a number of six hours penalty paid per 12 hour shift on a public holiday.
PN537
All right. So the difference I think is, Mr Moule is still treating that figure as four, as it was for the eight hour shifts, when you say it is six hours under the 12 hour shift?---That is correct. I am saying it is 26.
PN538
All right. Could I show you a copy - yes, perhaps I should ask, at paragraph 40 of your first statement you say that in 2000 the shift employees elected to uniformly work under the day, day, night, night shift roster. Are you aware of, either through yourself or through other managers, the company formally agreeing to move away from the no extra cost principle?---No, I am not aware at any point of us moving away from a no extra cost principle.
PN539
All right. Now, the maintenance employees, you say something about them at the end of your statement, paragraphs 49 and 50. You say they also operate under an average annualised wage?---They do.
PN540
All right. And you think that if the union's claim here is successful, that the maintenance employees would immediately pursue a similar claim. On what basis do you say that?---Human nature.
PN541
All right. How many maintenance employees are there?---At the Maryvale site there are approximately 168 tradesmen, and there is 20 odd apprentices above that. I don't work in the maintenance are, but that is my numbers that I would work to roughly. Of those there are 20 on shift plus - that total numbers includes day workers. There is only about 20 of those on shift.
**** DAVID WILLIAM JOHNSON XN MR DALTON
PN542
12 hour shift?---12 hour shift, plus several reliefs that come from the day work area to cover the shift positions. So all up the shift component of that is probably in the vicinity of 25.
PN543
Okay. Is their enterprise agreement up for renewal at the moment?---I believe so.
PN544
Yes, all right. Could I show you a copy of the order that the CFMEU seeks. That is at attachment 4, I think. Have you seen that order?---I have.
PN545
Could I refer you specifically to the calculations at the bottom of the page?---Yes.
PN546
Can you compare and contrast what is sought in that order with the current position?---Well, if we move to the very last line, the two out of five days worked, the calculation there to me is correct. There is the people who work two out of five, so that is correct. There is nine public holidays in a year. The claimants requesting 12 hours for the public holiday for that day, and six hours for the penalties, and I wouldn't dispute the 64.8 figure on that line. The two lines above it, which both make claim for 12 hours pay for days that they don't work, the matter is in dispute. If we go to the two days where the mill is always shut, the figure has gone up by eight hours from what is currently paid, from 16 to 24.
PN547
Why do you dispute that?---Well, I don't see why we changed to a 12 hour day for a day somebody has off purely because their rostered shifts when they work are 12 hours.
PN548
Yes, all right. And in relation to the other item that deals with days not worked?---Well, the days not worked, again, if you substitute an eight for a 12 in that calculation, it reduces back to the 28.8 hours that appears in the '93 agreement, and this is where the other 36 hours of the 44 hours is claimed, and my - by the same reckoning, these are days that are not being worked, why are we therefore paying a 12 hour day off rather than an eight?
**** DAVID WILLIAM JOHNSON XN MR DALTON
PN549
Yes, all right. Easter Saturday, you deal with that in your supplementary statement. Now, I think that the matters you put there are self explanatory, but you have made some changes. Are we to take from those changes that you don't know whether, in fact, those payments have actually been processed by payroll?---That is correct. That is why I didn't - that is why I made those changes, because I had a discussion with our human resources manager at Maryvale. I indicated that I thought this would be fair and equitable payment, but at that point I have no further involvement in it, so I don't know whether these changes, whether these payments were made.
PN550
And you don't know whether they haven't been made?---No. I haven't been to check that up, that is not my area.
PN551
All right. Well, are you in a position to take steps to ensure that the payments are processed in the manner that you have outlined there, take that up with the relevant people?---I can take it up with the relevant people. It is not up to me to authorise those payments. I was approached for an opinion on what I thought was fair and equitable to deal with it, and that was what I stated to be fair and equitable.
PN552
All right. No more questions, Commissioner.
PN553
THE COMMISSIONER: Thank you. Mr Woods, do you want a break?
PN554
MR WOODS: Yes, Commissioner. I think the five to seven minute would be helpful, if we could take that.
**** DAVID WILLIAM JOHNSON XN MR DALTON
PN555
THE COMMISSIONER: Okay. Well, we will reconvene at, say, 10 past, okay? The Commission will stand adjourned until 10 past 12.
SHORT ADJOURNMENT [11.57am]
RESUMED [12.10pm]
PN556
THE COMMISSIONER: Yes, Mr Woods?
PN557
PN558
MR WOODS: Mr Johnson, I got a bit confused as you were talking before. Did the company agree to introduce the 12 hour shifts?---Well, presumably. They have been worked for the last nine years.
PN559
Okay. Do I understand you to say too that you have actually no data on increased absenteeism, just a kind of feeling?---That is correct.
PN560
And did I understand you also to say that 30 hours is deducted from employees who are absent by way of sick leave on a 12 hour roster on a public holiday?---That is also correct.
PN561
And is that more than is actually paid?---That is also correct by my calculations.
**** DAVID WILLIAM JOHNSON XXN MR WOODS
PN562
And your calculations are that 26 hours are actually paid?---That is correct.
PN563
And I think on that basis, Commissioner, we note the distinction between the two, and concur with Mr Johnson's view, after consideration.
PN564
What was the basis for deductions on the eight hour shift for public holidays? It was 20 hours?---20 hours. It depends. I mean, the words are used loosely, but my understanding of it is that we deducted eight hours of ordinary hours, eight hours of public holiday payment and four hours of penalty that was attached to working on a public holiday.
PN565
And on the eight hour payment arrangement what would I have been paid if I was - - -?---20 hours.
PN566
I would have been paid 20 hours?---That is correct.
PN567
So a deduction would have been what was earned?---Correct.
PN568
You commented this kind of feeling thing again, I think, that the maintenance employees might pursue a further claim on the basis that you know human nature. Do you know that the maintenance employees are pursuing a further claim in respect of public holidays at this time?---I do not. I have no involvement with the maintenance employees.
PN569
Aren't they on a fully annualised wage at which they get no loss of pay under any circumstances in any event?---Yes, that would be correct.
PN570
So is it therefore not possible for them to make this claim?---I would have thought it was not possible for you to make this claim, so it is a bit hard to answer that question.
**** DAVID WILLIAM JOHNSON XXN MR WOODS
PN571
In terms of their wages arrangements, it is not possible for them in their fully annualised wage to have a deduction made on any higher basis for any one day over any other day, is it?---They are, in effect, not deducted, is my understanding for any absence on any day.
PN572
So let me put it another way. There would be no reason, would there, for them then to make this claim?---No, that would be correct, if that basis of the fact that no deduction is made, then I would say that is correct.
PN573
THE COMMISSIONER: But there are two issues there. I mean, Mr Johnson, you keep referring to making a claim for no deductions. That is one issue. The other issue is the payment for - the claim for payment for time worked, as opposed to what is paid. Now, what is the question relating to, the claim, a possible claim for time worked, as opposed to - well, there wouldn't be a claim for loss of deductions, because they don't have any.
PN574
MR WOODS: Following Mr Dalton's line, Commissioner, and this is the line that says that these matters are inter-related but separable. Clearly one that we, you know, find difficult to disagree with frankly. The question is specifically about, well, on what basis would a claim like this be made? Well, at the very least the maintenance workers would, in response to Mr Johnson's answer, not make a claim in respect of one of those matters, and it is equally a claim that Mr Johnson is not aware of them making?---In relation to the paragraph where I made that statement, having thought about what Mr Woods has said, my understanding of the annualised salary for the maintenance people is that it is totally annualised, and therefore if they had a day off, be it a public holiday or any other day, that no deduction would be taken, they would still get the same figure.
PN575
THE COMMISSIONER: And do they work eight or 12 hour shifts?---The shift workers work 12 hour shifts.
PN576
12 hour shifts. So is their calculations on the averaging annualised salary done on a public holiday on eight hours or 12 hours?---I couldn't answer that question. It is a separate agreement.
**** DAVID WILLIAM JOHNSON XXN MR WOODS
PN577
MR WOODS: Commissioner, I can't answer that question for you either. I was actually focusing in the question about with reference to whether or not they could make a claim in regards at least one of these matters. The questions and perhaps the answers stand for themselves. And, of course, asking a question as to whether or not there is actually any claim that we know of, or whether or not that is just a feeling in respect of this. And that is to say whether or not there is any evidence of that?---No.
PN578
And you are saying to me, Mr Johnson, or saying to the Commission that there is no evidence that the maintenance workers are making a claim with respect to the public holidays matter?---Yes. And in reviewing your statement, I would say that if they are on a full annualised salary there would be no reason for them to make that claim.
PN579
Thank you. Commissioner, I will refer to Mr Cullinan on a couple of questions.
PN580
PN581
MR CULLINAN: Mr Johnson, I would just like to refer to paragraph 23 of your witness statement. It refers to part of the calculation for public holidays, and the second sentence says the average wage and annualised wage recognises the ordinary hours as well as one penalty hour for each of the 11 holidays irrespective of whether the employee actually works on a holiday. Where is that included in the previous calculation?---The average annualised - the ordinary hours is in item 1, and the one penalty hour for each of the 11 holidays is at item 4.1, and the final 50 per cent of penalties is at 4.2.
PN582
So at item 4.1, the way I read that, that says 11 times eight hours?---Yes.
**** DAVID WILLIAM JOHNSON XXN MR CULLINAN
PN583
So where it says as well as one penalty hour for each of the 11 holidays irrespective, it means as well as eight penalty hours?---11 holidays at eight hours, that is correct.
PN584
Can I just refer to a possible further error later in the statement, and that is under paragraph 28. Could you just clarify for me that 12 hours ordinary pay is on the, sorry, top page of page 8 - sorry, the fifth line of paragraph 28, it says that 12 hours ordinary pay is credited for each of the 11 public holidays, item 1 of the calculations?---The last 50 per cent component of the public holiday component is credited by half pay for - - -
PN585
Previous to that?---Sorry, you want previous. Take me to the line, the line number.
PN586
So the very top line, sorry, of that page?---Holidays, the one that starts with holidays are the same?
PN587
Yes. And then the next sentence, the 12 hours ordinary pay, implying that there is 132 hours included in the 1735?---Well, that might be the implication. It is not what is meant.
PN588
Well, it says the 12 hours ordinary pay is credited for each of the 11 public holidays, that is our claim?---Yes. But that doesn't say that for each individual employee. All the ordinary hours that are worked on a public holiday are already applicable to item 1, because you have taken the total years hours, subtracted your two days that the machines are shut, and nobody works, so it is already in item 1, all ordinary hours worked on any public holiday are already included in item 1.
PN589
So that is in relation to all employees across the site?---That is correct, on a five shift annualised wage.
**** DAVID WILLIAM JOHNSON XXN MR CULLINAN
PN590
So each employee doesn't receive 12 hours ordinary pay for 11 public holidays?---No.
PN591
All right, thank you.
PN592
MR WOODS: No further questions, Commissioner.
PN593
THE COMMISSIONER: Thank you. Yes, Mr Dalton?
PN594
MR DALTON: Nothing in re-examination.
PN595
PN596
THE COMMISSIONER: Yes, Mr Dalton?
PN597
MR DALTON: Commissioner, could I deal firstly with the main question for determination. I think I would describe that as the first question for determination. Now, it is the company's submission that the calculation should stay as it is and as it always has been since 1993. That is, the total averaged annualised wage hours set out in both the addendum to the 1993 EBA, which is copied at CFMEU attachment 5, and the schedule A to the Maryvale annexure of the 2000 EBA, which is extracted at exhibit DJ1 of Mr Johnson's first statement, should remain at 2502.9, that is, the average annualised wage hours should not be disturbed by a change in the shift length.
PN598
Now, Commissioner, firstly it is important to note how the annualised wage came to be introduced. It was introduced by agreement. That agreement was reached in 1993. The original agreement is as set out in the addendum which is at CFMEU attachment 5. That was when employees were working under the eight hour shifts. Secondly, it is also important to note, Commissioner, why it was introduced in the first place. And if I could refer you to paragraph 13 of Mr Johnson's first statement, I think that his description of the rationale is concisely put in that paragraph. That is:
PN599
The average annualised wage system was introduced to eliminate the financial highs and lows for shift employees associated with receiving payment for work actually performed. The amount of rostered shifts from fortnight to fortnight varies greatly for shift employees. One fortnight the shift employees would receive a very large pay packet, while the following fortnight the pay packet would be significantly lower. The average annualised wage system was introduced to allow shift employees to enjoy even, consistent payment for performing shift work.
PN600
Now, there is no doubt that that rationale is equally, if not more, applicable in 2003 under the 12 hour shift roster system. Thirdly, it is important to note how the average annualised figure of 2502.9 was reached. Now, Mr Johnson gives evidence on this at paragraphs 19 and 20 of his statement, and he has elaborated upon that in his oral evidence. I think it is worthwhile pointing out that the calculations in the addendum to the 1993 EBA, which are at attachment 5 in the CFMEUs submissions, and attachment A to the Maryvale mill annexure to the 2000 EBA, come up with the same figure, but the methodology of calculations in item 4 of the calculations is slightly different.
PN601
Commissioner, I would ask you at this stage to have a look at both of those documents, just have both of those documents before you, and I will identify for you what the difference is.
PN602
THE COMMISSIONER: All right. Where are we, which one?
PN603
MR DALTON: CFMEU5, which is the 1993 addendum. So that is the first time it was agreed, back in 1993, under the eight hour system.
PN604
THE COMMISSIONER: That is attachment 5 you are talking about?
PN605
MR DALTON: Yes.
PN606
THE COMMISSIONER: Yes, all right. That is five shift employee annual wage base.
PN607
MR DALTON: I think it is actually - I think it was attached in the submissions in reply.
PN608
THE COMMISSIONER: Yes, response to respondent outline of submissions. Yes, got that.
PN609
MR DALTON: All right. If you have a copy of that handy, and alongside that if you could open up to exhibit DJ1 to the first statement of Mr Johnson.
PN610
THE COMMISSIONER: Yes, I have got that, thank you.
PN611
MR DALTON: All right. So these are the two documents I want to refer to, Commissioner. Attachment 5 of CFMEU is the 1993 document, which was an addendum to the 1993 EBA, and the DJ1 is the current calculations. The first point I would like you to note is under both the total hours are the same, 2502.9. The ordinary hours at item 1 are the same. And you will remember the evidence of Mr Johnson was that was a calculation of the total hours distributed across five crews gives you a figure based on 37 hours per week for a person of 1735.
PN612
Annual leave is the same, the same methodology, five times 35 hours. The loading is the same. And then item 3, both of those items are the same under both documents. It is important to note that items 1, 2 and 3 are all distributed equally to an individual for the hours actually worked. Item 4, the methodology for the calculation is different. If I look at the 1993 version, if you add up 64, 28 and 16, you get a total of 109.6. Under DJ1, which is the current version of the calculations, if you add 88 and 21.6, you get the same figure.
PN613
All right. So the 109.6 is the total number of hours for the penalties attaching to public holidays, and it is the same figure. So what we have is, item 1 deals with ordinary time, that is locked and loaded for the year. Each person gets that per year. In my submission that covers the ordinary hours for any public holiday, because under clause 39.1.1 of the core agreement which has the main public holidays clause, you will see that it says prescribed holidays, and it says:
PN614
The following days will be public holidays or such other days as generally observed in the locality in lieu thereof -
PN615
and I emphasise these words -
PN616
without loss of pay.
PN617
So if you are not rostered to work on a public holiday, what the certified agreement requires is that you don't lose pay. And that is exactly what happens here under the annualised system. Item 1 covers you because you have got ordinary hours covered under the 1735 figure. Item 4 under both documents deals with what payments over and above ordinary hours will we give to employees for public holidays? Now, they adopt a slightly different method, but they come up with the same total figure of 109.6.
PN618
Under 1993 it is split up into three items, and under the 2000 it is split up into two. If I deal firstly with 1993. Item 1 deals with the nine days worked, and it does that by reference to the number of days, being nine times the length of the shift, being eight multiplied by the time and a half factor, and that is why it has got a 12, multiplied by the probability of you working on a public holiday during the year, which is under a three by eight hour system you have got a three in five chance of being rostered to work.
PN619
All right, so that closes off on the average times you will actually be working, and you come up with a figure of 64.8. And I should point out that the company has no issue at all with that part of the calculation. In relation to the second one, that gives you additional payments for days on average that you don't work, and it is done by nine times eight, so they don't give you the one and a half, they just give you the one, times the probability of you not working, which would be two fifths, that is, you have got a two in five chance of not being rostered on any given public holiday throughout the year.
PN620
The figure that you get there is 28.8. It is important to note, item 2 in this particular calculation represents 28.8 hours locked into the annualised calculations that does not relate to time that they are rostered to work. All right. Now, I will also be able to point that out to you where you can find that in the 2000 calculations, even they adopt it a different set of - a slightly different methodology, but come up with the same total number.
PN621
The third item is the two days, Christmas Day and Boxing Day, which no one works, so everybody gets those hours, and that is two times eight hours, 16 hours. Now, under the 2000 EBA, attachment A, there is single time payment for each of the 11 public holidays. So that includes Christmas Day and Boxing Day, so you can tick off on the third item in item 4 of the 1993 agreement, and it also gives you single time for every day of the nine public holidays. So it covers item 1 and item 2. It doesn't cover the additional 50 per cent penalty that is in item 1, and that is dealt with in the second item in item 4, and that is actually distributed based on the average times you will actually be working.
PN622
Both the 1993 and the 2000 calculations make it very clear that there are 28.8 hours locked into the average on top of ordinary pay, even though you don't on average work those days. So of the nine public holidays, under a 12 hour system you have, I think, 5.4 out of the nine where you won't be rostered to work. Under an eight hour it is the other way around. I think it is 3.6 public holidays out of nine per year that you won't be rostered to work. And under both systems you get paid single time for those days on top of the ordinary time, being the no loss of pay.
PN623
What I am saying to you, Commissioner, is that there is fat in the system as it is, and it is based on eight hours, but it is still there, 28.8 hours over and above payments that they actually earn, based on the roster.
PN624
THE COMMISSIONER: Are you sayings it is a swings and roundabouts? I mean, an example, if you like, a case that I had a couple of weeks ago with daylight saving, they worked 12 hour shifts. Daylight saving commences, they get paid for 12, but they work 11 because of the introduction of daylight saving. At the end they still get paid 12, but they work 13. But it is swings and roundabouts. They don't lose, it averages out the same. Is that what you are putting here?
PN625
MR DALTON: What I am putting here is slightly different, of course. The parties negotiated what they thought was a fair average in the interests of getting the average system up, and to avoid the problems associated with paying people for actual earnings in a given period. Does it perfectly represent each individual's working pattern each period? No. But it has never been intended to do that. Does it include matters, or does it include accommodation for hours that aren't going to actually be worked? It does. Does the company have a problem with that? No. Because it entered into the agreement on the basis that that was going to be the system, the average system, certainty of earnings for the period.
PN626
The problem with this application is that the move from eight hours to 12, when you look at the order that is sought, you will see that the increases are not as a result of the time that they are working, because that works out to be the same. It is in relation to the time they are not working. And Mr Johnson pointed that out, that there are - perhaps if I take you to the order again. The order uses the old methodology again, the methodology used in the 1993 addendum.
PN627
Two days always shut. You will see that is an increase from 16 hours up to 24, so that is an eight hour increase, and then the extra 36 hours to make it up to a total of 44 hours increase is to be found in the three out of five days not worked. They come up with a figure of 64.8 because they used 12 hours instead of the eight that is used, and there is 28.8 hours, which I pointed out to you, in the existing average annualised wage which they get for public holidays that on average they are not working that year.
PN628
So what I am saying is, the difference between the 64.8 figure and the 28.8 of fat already in the system is the 36. Eight plus 36 gives you 44 hours, both relating to time not worked. So they want - they are saying 28.8 is not enough, or, we want another 44 locked into the system because we are now working 12 hours. It is for that reason, Commissioner, that we say the argument run by the union that this system is operating unfairly under the 12 hour roster, has to be rejected. It is not operating unfairly.
PN629
It is very tempting at a superficial level to say, well, the calculations refer to eight hours, but they are working 12 hours, that doesn't make sense, therefore we just should convert it to 12 hours. But for the reasons I have set out, what you will see is, in fact, there is quite generous accommodation for the shift patterns. The important things have not changed. That is, there is a certain total number of hours to be worked during the year. Of that a certain number are ordinary hours, of that a certain number of those total hours attract penalties for weekends, overtime, etcetera, and public holidays.
PN630
When you spread them equally across each individual, you have come up with a fair average. The only item that is not spread to an individual based on average how often they will actually earn that additional penalty, is in relation to item 4 in the calculations, because the company decided, look, you have got a variable roster, we are not talking about Monday to Friday employees. Some days you will be rostered on to public holidays, some days you won't be, but look, we will just give you single time for all public holidays based on eight hours, whether or not you work it, and in addition to that we will also kick in the extra 50 per cent penalty when on average you do work it, result, 28.8 hours of, if I could use the word fat. Although I don't want to suggest negativity about that. This was an agreed outcome reached between the parties.
PN631
And the union is now wanting an extra 44 hours on top of that 28.8. This is not a situation where the company is taking advantage of an old system to pay people based on an eight hour system for work on public holiday under a 12 hour system. Because as Mr Johnson's statement shows, for days they are rostered to work on a public holiday, they get exactly the same outcome, because they are there proportionately less, they work proportionately more, the same hours in the day, same penalties apply, same figure. So the only differences are coming up in relation to the average time not worked on a public holiday.
PN632
Is it unfair to stick with the old system and stick to the principle of no extra cost? In my submission, clearly not. Commissioner, could I refer you back now to the outline of submissions that were filed on 30 May. There are a number of points the company raises in support of its merit argument as to why the first or main question for determination should be decided in the company's favour. You have got to recognise that the introduction of the average annualised wage was introduced 10 years ago, and it was introduced by agreement, that when it was converted into - sorry, and that that included the 2502.9 total ordinary hours per annum.
PN633
That the introduction of this annualisation for the 12 hour roster was done clearly on a without additional cost basis. Mr Purdy deals with this at paragraphs 5 to 7 of his statement. He quotes the relevant provisions in the principles, if I could take you briefly to that. The first item in part 3 of the principles:
PN634
Introduction of 12 hour rosters to be without cost to the company and without loss of earnings to any affected employee. Presently continuous shift workers receive and will continue to receive 2502.9 hours ordinary pay per annum, which includes public holidays, annual leave and weekend penalties, but excludes overtime worked.
PN635
There is a reference to a 12 hour roster committee to be established to oversee implementation and conduct reviews following agreed trial periods. And further down you will also see, importantly, and consistently, in my submission, with the letter sent by Mr Reece in 1995:
PN636
Deductions for compassionate leave and sick leave shall be on the basis of 12 hours per shift.
PN637
Now, at part 5 of the principles the parties contemplate a trial. The focus of the trial seems to be on ensuring that there aren't any adverse effects on either the employer or the employee. What we know from the evidence is that no formal review was ever conducted. What we also know was that over time implementation of the 12 hour shifts in relation to the converter room was fanned out into the other areas, and ultimately the slight variances in the 12 hour rosters worked across the site were, I think, they all became the day, day, night, night system by about 1999.
PN638
Now, in my submission the argument put by the CFMEU that somehow these basic principles of no extra cost were eroded or abandoned because of, I guess, the move to permanency as a matter of custom and practice, has to be rejected. They rely on a few things. They rely on the 1995 letter by Mr Reece. Now, looking at that letter, Commissioner, on any view he is referring to deducting for absences. It is simply not open, in my submission, to interpret that letter in any other way. That is the issue he writes about, and that is what he refers to, and he says that is as Mr Purdy pointed out.
PN639
In my submission that is not evidence of the company agreeing to abandon the no extra cost and to convert eight hours into 12 hours for the annualised wage calculations. What it is making clear is, is that deductions for compassionate leave will be on the basis of 12 hour shifts. Now, we also know through subsequent conduct of the parties that the issue continued to be in dispute. And as late as 2000, when the parties enter into a new certified agreement, having entered into one in 1997, by the way, mysteriously nothing recorded about this 1995 so called agreement, so we come to 2000. And all we know is that the parties are still in disagreement on this issue, and that the company agreed to allow the union to have a leave reserved clause in the agreement so that they could raise the issue. And that is why we are here today.
[12.46pm]
PN640
There is no doubt that there has been a 10 year custom and practice that has the 2509 and the no extra cost principle well and truly intact. Now, I don't expect to hear from the union that somehow custom and practice should be easily eroded in the absence of agreement. That is an important factor the Commission has to take into account. There are other merit issues worth noting. The significance of the cost impact to the employer, it is a 1.76 increase to the wages. That is calculated simply by the 44 additional hours divided by the 2502.9. On top of that there is the oncost. So it will approximate 2 per cent.
PN641
The evidence of Mr Purdy is, I think, that it is approximately $650,000 per annum based on the 1.76 figure, so it is obviously going to move up in the range of 800,000 per annum. That is a significant increase. It is an increase that Mr Purdy says would cast into doubt the viability of 12 hour shifts, because the conditions have changed. And he also makes the point at paragraph 29 of his statement, that it will place - I beg your pardon, at paragraph - yes, it is, it is 29 of his statement, that this could cause problems in terms of the, not only the 12 hour rosters, but also EBA negotiations that are happening at the moment.
PN642
One obviously can't ignore a 2 per cent increase in costs to a labour bill associated by a change in conditions for 12 hour shifts, if one is to stay with 12 hours, that is something obviously that has to be borne in mind in a wages outcome under a 2003 agreement. The deduction for absences, I hope what I put at the outset of the hearing is taken into account. The company wants to make it clear that, firstly, it has only done this consistent with the agreement reached back in 1993, that is, that deductions are made based on the penalty rates.
PN643
It is true that under a 12 hour system, contrary to the eight hour system, there is a difference. There are four hours deducted more than what is specifically included in the annualised wage calculations for public holidays actually worked. That, of course, is not taking into account that 28.8 hours of additional hours that relate to public holidays not worked. Notwithstanding that, it is different, the impact of it is different to the eight hour system.
PN644
If the Commission is of the view that that is not appropriate, then as I said at the outset, that is a matter that the company is more than willing to take on board and deal with. It is not a matter that the company believes is appropriate to be used as a basis for this union claim for an increase to the annualised hours. Now, could I deal with the - there is just one final matter I think, which is comparisons between other sites. I think that little or no weight can be attached to what may or may not be happening on other sites.
PN645
There has been a myriad of wages and conditions. Mr Purdy just referred to one significant one, being that Maryvale production workers, all things being equal, get $10,000 on average more than their counterparts at the other sites. There is little that can be drawn from that. In relation to the second matter for determination, Easter Saturday, Commissioner, the company's position is set out I think pretty clearly in the statement of Mr Johnson. To clarify it, Mr Johnson changes, and his oral evidence confirmed that he doesn't know as a matter of fact whether that has actually happened.
PN646
I am instructed by Mr Purdy, who is the general manager for production at the site, that his understanding is that it has happened, and certainly if it hasn't happened, that that matter will be dealt with in the manner that is set out in the statement of Mr Johnson. That is, shift workers, irrespective of whether they are rostered on a public holiday, will be paid an additional eight hours payment. It is recognising that they have already got the ordinary time in item 1 of the calculations, and it is recognising that they have already got the penalty on the Saturday, because it is not a transferable holiday, it will always fall on a Saturday, and that the eight hours should be added to the 11 times eight, so that becomes 12 times eight, consistent with the treatment for the other public holidays.
PN647
So there would be an increase to, I think, the first part of item 4 under the attachment A to the 2000 EBA Maryvale mill annexure, but there wouldn't be any increase or change to the second matter, because that is already covered in item 3, being the allowance for the Saturday penalties. If the Commission pleases, those are the submissions.
PN648
THE COMMISSIONER: Thank you, Mr Dalton. Yes, Mr Woods?
PN649
MR WOODS: Thank you, Commissioner. In the interests of brevity we need to comment in respect of what Mr Dalton commented on previously with regards to some of the procedural matters. We understood from the company's correspondence included in our outline submission as attachment 1, that it was originally, or that it was agreed ultimately that this matter would be submitted as a section 170LW matter. And because we had received that correspondence from the company, we allowed it going forward on that basis.
PN650
Although as we say in the outline of submission, we had in the first instance anticipated it might be pursued as a section 111AA matter. The notion that this matter might be dealt with by way of a recommendation pursuant to section 99, doesn't leave us as comfortably as perhaps the other two matters would. But we are not minded to be overly concerned with respect to that by virtue of the statement made under instruction by Mr Dalton, that the company would abide by a recommendation in any event, and we, of course, rely upon that, and we are certain that the company would do that.
PN651
We have no issue ultimately with this matter being addressed expeditiously, in part for the reasons that are outlined, but equally because this matter has gone on for long enough, and any period of time in which the Commission is able to resolve it would be satisfactory to the CFMEU and, of course, to its members. Mr Dalton addressed the, for want of a better term, the claims of the CFMEU in a different way to that which is outlined in the draft orders, addressed them by saying that there are three issues or characteristics that might be, or three ways in which this matter might be characterised.
PN652
First by saying, well, should these hours worked and the hours paid be increased, the Easter Saturdays matter and the deductions matter? And I think if we come back to the issue about should the hours increase, we would say this, Commissioner, with respect to the Easter Saturday matter. In submission Mr Dalton put that clause 39.1 of the enterprise agreement anticipated no additional public holidays, and that therefore that allowed at least the '94 agreement to be acted upon through the introduction of this new public holiday.
PN653
However, of course, a further reading of clause 39 takes you to clause 39.7, which makes reference to the fact that any additional - in fact, 39.7, additional public holidays, where in a state, territory or locality extra public holidays are declared or prescribed on days other than those set out in subclause 39.1.1, those days will constitute additional public holidays for the purposes of this agreement. That clearly, as was stated in submission and evidence, was not envisaged within the original 1994 agreement, and has already been the CFMEUs submission, we continue the assertion that that would be compounding unreasonableness on what we clearly submit is unfairness, particularly with that reference to the unregistered agreement.
PN654
We obviously take on board the comments, and again accept that under instruction Mr Dalton has made comments about the payments outlined in Mr Johnson's statement having been acted upon. With respect to the deductions issue, of course Mr Dalton is right to say that it is separate but related. Of course it is related, because the matter with respect to deductions is specifically related to the basis upon which the public holidays are paid. We submit quite clearly, and continue to do so, that that constitutes an unfair penalty on employees who are being deducted more than what they have been paid for the public holiday.
PN655
And, of course, what is being deducted is an unfair penalty, because it is not merely the penalty payment which is being deducted, it is the payment for the public holiday which falls due whether you work the public holiday, of course, or not. And this is an important matter with respect to that first matter that Mr Dalton raised, the issue of, should the hours increase? It is not ultimately the question about should the hours increase? It becomes part of the answer.
PN656
The question is, should people be remunerated based on what they work? And that is the question we put in those draft orders. And the reality is that what people work, and when one reads clause 39.6, what people at Maryvale work is a mix of roster arrangements. The majority are on 12 hour roster arrangements. In clause 39.6 of the agreement says, you will be remunerated on those holidays for the hours that you are rostered. And that is the basis of the draft orders that the CFMEU is seeking.
PN657
With respect to the matter of calculations, Mr Johnson is entirely correct about what the draft orders seek to do. It is clearly - the draft orders are clearly focused on the days that are not worked. It is clearly focused on the days that are not worked because the penalty rates are correctly applied. And the basis on which the penalty rates are correctly applied is by dent of circumstance on eight or 12 hours ends up being exactly the same. Eight hour payment worked three out of five just happens to equal 12 hour payment worked two out of five.
PN658
That is not what is fundamentally at issue, neither by way of deduction nor by way of those matters in respect of payment. Of course, what is at issue is that a public holiday, whether it is worked or not, is payable, and under clause 39.6 it is payable consistent with the hours that would ordinarily be worked. Clearly that takes us to an issue with respect to, and hence the reason that the matter, in our view, is here under section 170LW, an issue about interpretation of the agreement.
PN659
We do not disagree with that which is in the agreement with regard to calculations of payments. We disagree with whether or not that is consistent with (a) principles of industrial fairness or (b) the provisions of clause 39.6, and, of course, as I have commented before, notwithstanding its separateness, the application of that in respect of the Easter Saturday public holiday. Even in the event that the Commission agreed with the company's proposition in respect of eight hours being an appropriate payment for public holidays not worked, despite the roster being based on 12 hours, what would need to be taken into account in this matter is that the number of public holidays not worked has increased by, in effect, half.
PN660
That is to say that previously the number of public holidays not worked paid eight hours, is two out of five. It has now increased to three out of five, and the current payment that - and we won't do the same injustice that Mr Dalton was seeking to do to it - the current payment associated with that of 28.8 hours, would then also under that same reasoning be required to increase by half the additional number of public holidays that are not being worked, which would be an equivalent of 14.4 hours.
PN661
It seems that that would be a logical course if the Commission chose to follow that path, because there are additional hours that are not being worked and that are not being remunerated on that 12 hour base. We have to say that with respect to argument, and at this point unsubstantiated by evidence so far as the CFMEU is concerned, in respect of cost and flow on, we don't have a direct issue with respect to the cost statement, although we note that it is widely varied between the 650 and $800,000. But we do note, as we noted in the outline of submission, that there is no - that we did not understand there was likely to be, and we do not understand that there is an incapacity to pay argument being put.
PN662
Can I say with respect to flow on, that we believe that we have adequately addressed that matter with Mr Johnson by way of his evidence and his final statement in respect of that part of cross-examination, where he commented that he could not see a basis for Maryvale maintenance workers to make a claim of this nature regardless of the outcome of this matter on the basis that they have a fully annualised wage. And with respect to flow ons in that respect, it seems that there is no evidence that a flow on is potentially likely, despite the, you know, perhaps natural scare mongering that has been put before the Commission in respect of this.
PN663
Obviously every matter that would be dealt with by the Commission in any event on its merits, and arguments have merit or not in respect of these matters. The statement made by Mr Dalton with respect to, well, the other mills, well, perhaps they have these payments included. If the arguments about flow on are to have no relevance, then perhaps Mr Dalton is correct, and arguments about other mills have no relevance. But we do make the assertion and continue the assertion that was agreed, and that is that at other mills this public holidays payment is currently made, in the same way no doubt that the company will continue to pursue the potential flow ons argument.
PN664
As we stated at the outset, Commissioner, in this matter, we didn't believe that there was particular assistance in the construction of the agreement, except by way of the reserved matter, the dispute settlement and grievance procedure present here today in respect of 170LW. There are a number of reasons for that. Of course, principally among them is that there are contradictory provisions in respect of the large, I think someone described it before, but vast enterprise agreement.
PN665
Those contradictions, while perhaps not intended, do lead to either one of two conclusions. One that says that the hours of work are as they are described, and that they haven't changed, albeit that there is a change in the number of public holidays that would be worked on an eight or a 12 hour basis, and the other that says that regardless of what is contained in that mill appendix, there is an obligation to make payments in respect of public holidays based on the actual hours that are worked.
PN666
So we have been of the view that no assistance was provided ultimately to the Commission via that construction of the agreement, because one of those has to give, and which one of those has to give when, for example, that 39.6 applies across all four of this company's mills, where that Maryvale appendix applies only at one of those mills. There are various tensions between them. Of course, as I commented, the agreement provides us the capacity to pursue this matter as we have done, but otherwise is broadly contradictory.
PN667
We have commented and submitted that the merits relates specifically, merits of the CFMEUs claim as outlined ultimately in respect of the draft determination or order, relates specifically to unfairness on the three fronts, and to this extent will follow through Mr Dalton's line on this. What is the basis of payment to be for public holidays? And we say on the one hand that it is directly supposed to be related to clause 39.6, and if you are working a particular roster you get paid your public holidays on that basis.
PN668
And that suggests that all arguments about calculation are then secondary and become answers to that primary question, what is the basis for payment for public holidays? In respect of Easter Saturday, the application of that prior agreement by the company, the 1994 agreement about no extra costs in respect of public holidays, is, in our view, clearly overridden (a) by the principles of industrial fairness, and (b) by the application of clause 39.7 of the enterprise agreement.
PN669
And with respect to deductions, as we have commented previously, the response from the company in respect of the 12 hour shifts remains a significant industrial unfairness. It is uncommon in the extreme for more to be deducted from a person's pay than would have been paid into it. And we make the further point that it is agreed by evidence that that was never the case under eight hours, has only been the case under 12 hours, and the assertion that in the company's outlines of submission, that this was in some way a penalty upon employees agreed to ensure that they would arrive on 12 hour shifts, has absolutely never been the agreement of the CFMEU or its members, not particularly raised here in any great detail, and would be a bizarre view in our consideration of what a penalty ought to be.
PN670
Those three matters go to make up what the CFMEU and its members have considered a significant unfairness in respect of the application of public holidays, and in particular at what base public holidays ought to be paid on. Regardless of calculations matters that have been raised, the CFMEU obviously drafted its draft determinations and orders with a view to that critical question that I outlined before being addressed through them, and that is, what is the basis to be for payment for public holidays? And on that basis we do commend our draft determination and orders to you, on the basis that from our perspective that question still remains. If it pleases.
PN671
THE COMMISSIONER: Thank you. Yes, Mr Dalton?
PN672
MR DALTON: Just by leave, if I could just quickly address you in relation to some matters that have been raised in reply that I don't think were raised at the outset. They are just in relation to the main body of the agreement, clause 39, and how that can be reconciled with the Maryvale mill annexure.
PN673
THE COMMISSIONER: Right.
PN674
MR DALTON: Clause 39.1.1, I don't know, Commissioner, whether you have got a full set of the agreements.
PN675
THE COMMISSIONER: No, I don't think I have.
PN676
MR DALTON: Perhaps we can arrange for a set to be provided to you.
PN677
MR WOODS: We have at least got clause 39.
PN678
THE COMMISSIONER: That is the prescribed holidays?
PN679
MR DALTON: Yes.
PN680
THE COMMISSIONER: I have got that, yes.
PN681
MR DALTON: Thanks, Commissioner. 39.1.1, that is the provision I referred you to in the context of item 1 of the calculations. That talks about without loss of pay.
PN682
THE COMMISSIONER: Yes.
PN683
MR DALTON: For public holidays whether or not you are rostered. I don't see anything in 39.6 that requires the company to pay people another rate of single time for holidays on which they aren't rostered. And in relation to the inconsistency, alleged inconsistency, which I don't believe is there, clause 7.3 deals with it. It talks about the structure of the agreement, Commissioner, and it says - you have got the main body plus you have got appendices for each mill. And 7.3 says:
PN684
Nothing in the general provisions shall prevent individual sites from reaching agreement on the averaging or annualising of wage rates and other entitlements such as allowances, overtime and shift penalties, or from entering into new arrangements regarding the treatment of sick leave entitlements.
PN685
And the proviso is, it says:
PN686
Provided that such agreement does not disadvantage employees in relation to their terms and conditions of employment.
PN687
So provided that when one has regard to section 39, the without loss of pay, the two and a half penalty rates that are paid if you work on the public holiday, and the fact that there is no entitlement to any additional payments if you are not rostered on a public holiday, provided that the annexure, Maryvale mill annexure and the attachment A to that, the calculations for the annualised wage, do not erode that, then in my submission clause 7.3 makes it very clear that the annualised wage as set out in attachment A to the Maryvale mill annexure remains well and truly intact.
PN688
THE COMMISSIONER: Thank you. Mr Woods, the outline of submissions by the CFMEU weren't tendered, so I will mark those CFMEU2, and your supplementary response to the respondent's submission will be CFMEU3.
EXHIBIT #CFMEU2 OUTLINE OF CFMEU SUBMISSIONS
EXHIBIT #CFMEU3 SUPPLEMENTARY RESPONSE TO RESPONDENT'S SUBMISSION
PN689
THE COMMISSIONER: All right. The Commission will reserve its decision, and notes that the parties would like to have it as quickly as possible. The Commission will stand adjourned.
ADJOURNED INDEFINITELY [1.12pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
IAN LAWRENCE MOULE, SWORN PN131
EXAMINATION-IN-CHIEF BY MR WOODS PN131
EXHIBIT #CFMEU1 STATEMENT OF IAN MOULE PN147
CROSS-EXAMINATION BY MR DALTON PN149
RE-EXAMINATION BY MR WOODS PN219
WITNESS WITHDREW PN236
EXHIBIT #D1 OUTLINE OF RESPONDENT'S SUBMISSIONS PN326
TONY JOHN PURDY, SWORN PN334
EXAMINATION-IN-CHIEF BY MR DALTON PN334
EXHIBIT #D2 STATEMENT OF TONY PURDY PN342
CROSS-EXAMINATION BY MR WOODS PN384
WITNESS WITHDREW PN433
DAVID WILLIAM JOHNSON, SWORN PN435
EXAMINATION-IN-CHIEF BY MR DALTON PN435
EXHIBIT #D3 STATEMENT OF DAVID JOHNSON DATED 30/05/2003 PN464
EXHIBIT #D4 SUPPLEMENTARY STATEMENT OF DAVID JOHNSON DATED 05/06/2003 PN471
CROSS-EXAMINATION BY MR WOODS PN558
CROSS-EXAMINATION BY MR CULLINAN PN581
WITNESS WITHDREW PN596
EXHIBIT #CFMEU2 OUTLINE OF CFMEU SUBMISSIONS PN689
EXHIBIT #CFMEU3 SUPPLEMENTARY RESPONSE TO RESPONDENT'S SUBMISSION PN689
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