C2002/2592, Transcript of Proceedings [2003] AIRCTrans 3097 (18 July 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
DX1344 Sydney Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT CARTWRIGHT

C2002/2592

GLASS INDUSTRY - GLASS PRODUCTION
- AWARD 1998

Application under section 113 of the Act
by The Australian Workers' Union to vary
the above award by deleting the contents
of clause 13.4

SYDNEY

10.10 AM, TUESDAY, 17 JUNE 2003

Continued from 22.5.03

Hearing continuing

PN129

THE SENIOR DEPUTY PRESIDENT: Good morning, ladies and gentlemen, I will take the appearances, please. I notice we have one change.

PN130

MS M. PIERCY: If the Commission pleases, I appear for the Australian Workers Union and with me today is MR P. CURRIE, the Branch Secretary of the Glass and Container Industry branch of the union.

PN131

MS L. BROOKS: If the Commission pleases, I appear for respondent members of Australian Business Industrial.

PN132

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, this was the programming of the hearing that was adjourned the last time we were together, I had also sent out directions in connection with today's proceedings, so over to you, Ms Piercy, I turn to you first.

PN133

MS PIERCY: Thank you, your Honour. Further to the hearing of 22 May 2003 the parties have had several discussions and we can now report that we have reached an agreed position. It is section 3 of the Workplace Relations Act that the parties rely on today where it states that the principal object of the Act is to provide a framework for co-operative workplace relations and to promote agreement between the parties in industrial matters.

PN134

The parties have agreed to increase the casual loading from 20 to 25 per cent and have opted not to include the provision relating to casual employees converting to full-time employees. I have an amended draft order to hand up to your Honour, as well as a schedule which I will go through with you once you have reviewed it.

PN135

THE SENIOR DEPUTY PRESIDENT: The schedule being casual entitlements decisions.

PN136

MS PIERCY: Casual entitlements decisions, that's correct. It outlines awards that have had the casual loading increase, the award provision, to 25 per cent or 23 per cent if it applies in Queensland. You will notice that the awards are from a variety of industries and what we propose today is that this evidence supports our application to increase the Glass Industry Award to 25 per cent. There are like awards in manufacturing, for instance Hunter Douglas. These awards have been varied by a variety of the members from the Commission from Full Bench to single members, Vice Presidents as well as Commissioners.

PN137

THE SENIOR DEPUTY PRESIDENT: I understand that, but referring back to the directions that were sent out on 12 May, you will recall that I was obliged under the principles to refer this matter to the President to allow him to decide whether to constitute a Full Bench and the President having decided that I should continue to deal with the application, I sent out directions on 12 May and said:

PN138

Noting that this is an application to vary the award for wages and conditions above the safety net, the parties are directed to address at this hearing the reasons for the changes sought to this award in this industry and provide appropriate evidence supporting those reasons.

PN139

MS PIERCY: Yes, that's correct, your Honour, we did receive those directions.

PN140

THE SENIOR DEPUTY PRESIDENT: I note with interest what has been done in other awards but we focus today on the Glass Award.

PN141

MS PIERCY: That's correct, yes. In relation to the directions, your Honour, the union has tried to comply with the directions issued but unfortunately it has proved to be a very difficult task, an enormous task, having to visit every company and every site within the industry to obtain the information and inspect their time and wages records. The union has discussed the matter with the parties and has sought assistance from Australian Business and no response has been received to date. The union will rely on our previous evidence given on 22 May and the evidence provided here today by Mr Currie. If the Commission pleases.

PN142

THE SENIOR DEPUTY PRESIDENT: Thank you, so what you are proposing is that you want to call Mr Currie to give evidence.

PN143

MS PIERCY: Yes, that's correct.

PN144

THE SENIOR DEPUTY PRESIDENT: Essentially you are saying that apart from what Mr Currie will cover in his evidence you haven't been able to deal with the issues that were covered in directions of 22 May.

PN145

MS PIERCY: Yes, that's correct, your Honour.

PN146

THE SENIOR DEPUTY PRESIDENT: Although I take it you would be able to make submissions on items 8 and 9 in those directions which were the relevant full-time employees subject to the comparison with the casual employee and nine submissions as to how one-off benefits available to full-time employees should be treated.

PN147

MS PIERCY: Mr Currie could provide that evidence for your Honour to the best of his ability.

PN148

THE SENIOR DEPUTY PRESIDENT: Well, I identify that in directions as a matter for submissions. Do I understand you to be saying you would make submissions after Mr Curry has given his evidence?

PN149

MS PIERCY: I am not fully understanding what your Honour is saying - you want me to confirm basically what Mr Currie - - -

PN150

THE SENIOR DEPUTY PRESIDENT: No, I am wanting you to comply with the directions which said at (8) and (9) that you were to make submissions on two matters and I am requiring you to make submissions on those two matters.

PN151

MS PIERCY: Very well, I will provide submissions, your Honour.

PN152

THE SENIOR DEPUTY PRESIDENT: Thank you, and essentially you are saying that you haven't been able to provide any evidence on items (1) to (7) and therefore you are reliant on whatever Mr Currie is able to cover today and also the evidence that was previously supplied.

PN153

MS PIERCY: Yes, that's correct, your Honour.

PN154

THE SENIOR DEPUTY PRESIDENT: Yes, that's helpful. Well, Ms Brooks, before we hear from Mr Currie perhaps I might get an update from you on how you see the story.

PN155

MS BROOKS: Your Honour, I am able to confirm what Ms Piercy has said so far and that is that we are in a position today to consent to the application that has been made by the union to increase the casual loading to 25 per cent. That position has come following discussions with our members that are respondent to the award and been provided with authorities to act by two of those companies, which I can provide to the Commission if that is suitable.

PN156

THE SENIOR DEPUTY PRESIDENT: What do you say this is?

PN157

MS BROOKS: This is an authority for Australian Business Industrial to act on behalf of those two members, World Kitchens Australia Pty Limited and Pharmaglass Pty Limited in relation to this application that is before the Commission.

PN158

THE SENIOR DEPUTY PRESIDENT: Are you suggesting that these should be marked?

PN159

MS BROOKS: If it's suitable, your Honour, for them to be marked on the file or for your information, whatever is most appropriate.

PN160

THE SENIOR DEPUTY PRESIDENT: We will take them for my information at this stage. They are named respondents to the award, are they?

PN161

MS BROOKS: They are, yes. At this stage, your Honour, I have no further submissions to make, perhaps there may be something more for me to say following Mr Currie's evidence.

PN162

THE SENIOR DEPUTY PRESIDENT: Can you just help me on one thing: this authority says, to act for and represent the undermentioned company in all matters arising. Isn't that what you normally do when you appear? In other words, how is that different - - -

PN163

MS BROOKS: To any other time?

PN164

THE SENIOR DEPUTY PRESIDENT: Yes, that's right. I take it that when you appear on behalf of the respondents to the award you are appearing to act for and represent the respondents to the award, so how does this do something different to what you normally do?

PN165

MS BROOKS: It doesn't, your Honour. Normally when we appear, because we are not a federally registered organisation ourselves, more recently either members of the Commission or unions have requested that we provide them with an authority of those members that we say we are actually acting for as opposed to a general statement that we are acting on behalf of our respondent members because the respondent members may range in number from 2 to 50.

PN166

In this circumstance it is my understanding that our members make up the bulk of the respondency list. The authorities that I have received from those members have come from World Kitchens and Pharmaglass. The other companies that are members of ours have chosen not to provide us with an authority to act on their behalf in relation to these proceedings. That doesn't say whether or not they consent or don't consent or whatever else but it does say that these are companies that we are acting for and they have provided their consent to the application.

PN167

THE SENIOR DEPUTY PRESIDENT: Thank you. Could I also mention to you that as I understand it, while the consent of the parties is clearly very relevant here my understanding under the Act is that it actually falls to the Commission to be accountable for maintenance of the safety net and given this is a safety net and an application to increase the safety net, my understanding is that it is the Commission's responsibility to make the decision as opposed to the parties' responsibility. That's not putting it very well but it seems to me that consent is relevant but not determinative.

PN168

MS BROOKS: I think that's true, your Honour, that is certainly the way I have seen it applied in other matters, this is not the first time that whilst consent is a big factor in matters it is not the only factor in matters before this Commission.

PN169

THE SENIOR DEPUTY PRESIDENT: Thank you for that clarification. Ms Piercy, I will turn back to you. Is there any comment, by the way, you want to make on that last matter, the issue as to whether consent is determinative?

PN170

MS PIERCY: No, your Honour.

PN171

THE SENIOR DEPUTY PRESIDENT: Well, back to what you want to do by way of evidence.

PN172

MS PIERCY: If you would like to question Mr Currie as to anything that you feel relevant your Honour I would leave it to you.

PN173

THE SENIOR DEPUTY PRESIDENT: Well, I suppose I took the view that the direction set out things that appeared relevant from the discussion that we had at the last hearing. I've re-read the transcript of that and in that exchange there were quite a few matters raised and the directions were then intended to flash those out so I would be grateful to you in presenting your case for why the safety net should be increased to establish on evidence the matters that are covered by directions.

PN174

MS PIERCY: Well, your Honour, the reason why Mr Currie is here with us today is to answer those questions or any other questions that you may feel relevant in supporting our application.

PN175

THE SENIOR DEPUTY PRESIDENT: So you're proposing to swear Mr Currie as a witness and then leave the examination of Mr Currie to me?

PN176

MS PIERCY: That's correct your Honour.

PN177

THE SENIOR DEPUTY PRESIDENT: I see, that's an unusual proposition. Are you sure you want to go that way in the sense that the onus is on you to provide the evidence and I think the directions make that clear. When I say you, I mean the parties, I'm not just talking about the union, it's also on the employers also. They have the equal responsibility to comply with the directions and just while Ms Piercy is thinking about that, can I turn back to you Ms Brooks and I neglected to ask you, so what's the employer's response to the directions? How are you able to help us this morning?

PN178

MS BROOKS: Well, your Honour, to be perfectly honest following the issuing of the directions on 22 May we spoke to the members that I've referred to previously in attempting to find or provide the Commission with the detail that it requested on the last occasion and essentially the companies were in a position where the figures, essentially they weren't prepared to provide us with the figures that the directions requested of us and the reasoning behind it was essentially that the application is that of the unions. The companies do not oppose the application, they consent to the application and in many respects the reasoning behind that is because it has little, if any, impact on those companies because of the lack of or very few numbers of casual employees engaged by those companies and essentially it's those reasons that have brought us here today in a position of consent.

PN179

The application has little or not impact on those companies and essentially that's the reasoning behind our lack of assistance to the Commission in this regard in relation to the evidence that we were directed to provide the Commission with. Now, that response from those companies doesn't deal with every one of the points raised by the Commission as being required to be put to the Commission to support the application but that's the position we find ourselves in having had significant discussions with those companies.

PN180

THE SENIOR DEPUTY PRESIDENT: So what's your position then in actually running a case to convince the Commission that the consent position you've reached is the one that ought to apply?

PN181

MS BROOKS: Well, your Honour, it's not our intention to run a case or make a case, it's our intention to inform the Commission that following consultation with those companies that are respondent to the award whose authorities we've provided to the Commission today, they have informed us and instructed us that they're in a position to consent because it has little or no impact beyond that in terms of making a case or putting forward a case to convince the Commission it's our submission that that essentially falls to the applicant.

PN182

THE SENIOR DEPUTY PRESIDENT: So essentially you're saying that the employer's position is you don't oppose the case being put by the unions? You consent to the proposition and you don't oppose the case being put?

PN183

MS BROOKS: Yes, that's it your Honour yes, because of the impact or limited impact that it has on those companies that we represent here today.

PN184

THE SENIOR DEPUTY PRESIDENT: Regardless of whether the case might be right or wrong?

PN185

MS BROOKS: Yes because in order to provide the Commission with the type of evidence or the type of case that is required in accordance with these directions we're not able to do that because of the companies that we're representing, they don't have the detail of that evidence because they don't engage the number of casual employees that are going to provide the Commission with the assistance to answer the questions that it has in relation to the impact of an increase to the casual loading across the industry because they don't engage large numbers of casuals or in some cases casuals at all.

PN186

THE SENIOR DEPUTY PRESIDENT: What you're really putting is the employers are prepared to look the other way on the basis that it's of no real impact.

PN187

MS BROOKS: Yes.

PN188

THE SENIOR DEPUTY PRESIDENT: Not a very good argument, okay, thanks very much. Ms Piercy, you've been able to think about what you want to do, back to you?

PN189

MS PIERCY: Yes your Honour, thank you. In regard to the directions at point 1 Mr Currie is prepared to provide evidence in regard to point 1 for us. In regard to points 2 to 7 the union felt that the employer would support us in gaining that evidence and upon seeking that assistance from the employer it was declined. Therefore, we were unable to provide anything in regard to those points and in regard to point 8 and 9 the union is prepared to submit that after Mr Currie has given his evidence.

PN190

THE SENIOR DEPUTY PRESIDENT: Thank you. Can I indicate before we ask Mr Currie to give evidence that my preference would be that since essentially it falls on the parties to make the case for the increase in the safety net while I have some things that are on my mind the primary responsibility ought fall to you to elucidate the evidence that in your judgment supports the case you want to put. So I'm going to ask you first of all to examine Mr Currie and give Ms Brooks the opportunity to cross-examine and along the way I will ask questions as well but the primary responsibility to make the case falls on you. With that introduction I think Mr Currie you're on.

<PAUL JONATHON CURRIE, AFFIRMED [10.30am]

<EXAMINATION-IN-CHIEF BY MS PIERCY

PN191

MS PIERCY: Mr Currie, the directions issued by his Honour on 22 May require certain questions answered in support of our application so I will provide you with the questions if you may provide us with the answers if possible. His Honour requests evidence as to what occurs at the employer's site on public holidays. In other words, do the sites still open for business and if so what type of employees work on those public holidays, full time, part time and/or casual?---Your Honour, as you're aware the award covers the industry pretty much as a whole. Generally speaking those industries that are in full time manufacture which is seven days a week twenty four hours a day fifty two weeks of the year generally stay open. It would generally affect full time employees but if casual were working shift work at the time they would probably also be required to work on those public holidays. To be more specific ACI operations would be staying open. Pilkington Australia operations generally stays open apart from their processing areas which are generally not continuous work but from time to time depending on demand in the market place they might also be required to work. As far as Crown Scientific and Pharmaglass generally speaking they would not work on public holidays but again from time to time depending on demand they might do. Insulation Solutions would generally work on a public holiday and Regina Glass Fibre and Corning Australia in the main probably would not.

PN192

THE SENIOR DEPUTY PRESIDENT: And you say that if casuals were working shift in those operations that were working they would work on the public holidays?---Yes.

PN193

And be paid for the public holidays?---Yes.

PN194

Be paid for working on the public holidays?---Yes at the rate of double time whereas if you're a full time employee you get the public holiday and double time. So effectively as a casual you actually miss out on the eight hours public holiday.

PN195

So a full time employee gets paid double time and gets the public holiday, how does that work? You referred to operations running seven days a week twenty four hours a day, presumably there's a rotating shift?---Correct.

**** PAUL JONATHON CURRIE XN MS PIERCY

PN196

And in one of the plants that I recall there's a twelve hour shift, is there not?---That's also correct, ACI at Penrith.

PN197

So people would be on a roster?---Yes your Honour.

PN198

And the shift loadings - - -?---On the public holiday there's actually no shift loadings, the way that it works is that if you're rostered to work you effectively get triple time which is made up of eight hours public holiday money and double time for working the public holiday. If you're not rostered on you generally get if you're on a RDO in effect you get eight hours public holiday money. If you're a casual if you're rostered on to work you would only get double time and if you were rostered off to work you would get nothing.

PN199

Right and in the operations where they would not work on a public holiday how does the comparison between a full time employee and a casual take effect?---Again your Honour, if they were rostered to work on that public holiday and the company said, look we're actually shutting down that section they would receive the eight hours public holiday money and not work whereas if you're a casual you wouldn't work and wouldn't get paid anything. Again if you were rostered off on your RDO effectively the company would give you another paid day in lieu from the public holiday, whereas if you were a casual you wouldn't receive that.

PN200

Run that last one by me again?---If it was your rostered day off when the public holiday fell and the company didn't require you to work and you were not a continuous shift worker they would actually give you another day off in lieu whereas if you were a casual you obviously wouldn't receive that because you're paid by the hour.

**** PAUL JONATHON CURRIE XN MS PIERCY

PN201

If in those companies that were not going to work would the public holiday be included or excluded from the roster if you see what I mean?---Generally your Honour those companies or those sections of companies that don't work on public holidays are generally either day workers or non continuous shift workers. We have a fair amount of people that would work day and afternoons on a rotating basis Monday to Friday so if the public holiday for instance fell on the Wednesday when the majority of them were actually due to work if they shut the factory down they would then just pay them the eighth hours public holiday money. If you were a casual then obviously you would receive nothing. There are occasions where we have a rotating day/afternoon/night shift, the only company that I know that has that on a fairly continuous basis is some parts of Pilkington Australia and maybe some part of ACI and some part of Crown Scientific. So in the unusual circumstance where that did occur if your roster were say that week, Monday to Thursday and the public holiday actually fell on the Friday they would generally then get the Monday off as well as compensation for having the public holiday fall on their RDO.

PN202

That's where it falls on an RDO?---Yes.

PN203

What about where it doesn't fall on an RDO?---Where it doesn't fall on an RDO if they weren't required to work they would just get the eight hours public holiday money.

PN204

Let's take Easter as an example where in advance of the - put it this way, you know in a long way in advance when Good Friday is going to fall, how would the rosters handle Good Friday, would that be a rostered day or not a rostered day?---Your Honour, in our award we actually get Easter Friday, Easter Saturday and Easter Monday as public holidays. in the main those workers who are working non continuous shifts generally the company would shut down for that period, so it would only be the continuous shift workers that would work through that period. So, for instance, if you were a casual working days or day/afternoons generally what most of the companies do which shut down for that period, their full time employees would obviously gain three days public holiday, if you're a casual you would receive nothing, if you were a continuous shift worker if you were rostered on you would receive triple time for all of those days. As a casual you would only receive double time. If you were rostered off the full time employees would still receive the eight hours public holiday money and the casuals would receive nothing.

**** PAUL JONATHON CURRIE XN MS PIERCY

PN205

Ms Piercy, I realise I jumped straight in and started asking questions but I will pass back to you.

PN206

MS PIERCY: Mr Currie, we will continue with the directions of his Honour, at point two it's required to provide evidence as to the usage of full time employees sick leave benefit?---Again your Honour I find it very difficult to answer this question. Under our award all full time employees receive sixty four hours a year sick leave of which they can access all of that. I suppose the question is how much of that is used in the industry. All I can say is that generally because the majority of the industry works twenty four hours a day seven days a week the six leave is generally reasonably high. Of the top of my head I would be surprised if the average sick leave usage didn't come out to at least four or five days per year on the industry as an average but I don't have any evidence to support that apart from obviously in my position I'm aware of what goes on.

PN207

Mr Currie, at point (3) there is required evidence as to the usage of full-time employees' personal leave, that is carers and bereavement leave, benefits?---Again, I would say it is probably very similar to (2). I am not aware of many instances of people using carers leave but there obviously would be some instances. A lot of the companies that we are dealing with are very lenient with regard to the use of annual leave and in fact a lot of our certified agreements, we can take up to five or seven days a year, single days, annual leave.

PN208

THE SENIOR DEPUTY PRESIDENT: Just before you go on from that, to what extent under the award are these categories, carers, bereavement leave and sick leave, interchangeable as elements of personal leave?---Your Honour, my understanding of the way that it works is that they are entitled to eight days sick leave, I think it's five days carers leave and three days bereavement leave.

PN209

MS PIERCY: Mr Currie, point (4) requires evidence as to the length of service of full-time employees to whom the award applies?---Again, your Honour, it would be very difficult really for us to be able to get this information but in general terms I would say that the average length across the whole industry would be at least 10 years service.

**** PAUL JONATHON CURRIE XN MS PIERCY

PN210

THE SENIOR DEPUTY PRESIDENT: That's the average length?---That is what I would say would be the average length of service of the full-time employees. In some of the companies it would probably be higher than that, ACI and Pilkingtons I think would probably be higher, I think Insulation would probably be a bit higher, in fact Crown Scientific would be higher too. ACI Minerals, which is now actually - - -

PN211

When you say higher, you mean longer?---Would be longer, so because the industry has been fairly stable, although there have been a lot of client closures and line closures, the majority of people seem to like the industry and generally stay there very much on a full-time basis for long periods of time.

PN212

So in your view it is an industry characterised by a low turnover?---In the main, yes, your Honour.

PN213

MS PIERCY: Mr Currie, point 5 requires evidence as to the distribution of casual employees across the eight jurisdictions in Australia?---Your Honour, I can probably try and break those eight jurisdictions up. ACI Operations generally only use casuals to fill in positions particularly for long-term sick leave, long-term workers comp, and in some instances for annual leave and long service leave and also from time to time if they have recalls where there's a lot of re-sorts and things like that to do they might get a whole lot of casuals in for a short period of time, generally no longer than three months, then once that work has finished we go back. Pilkington Australia has a very limited use of casuals, the extra labour they generally employ as temporaries rather than as casuals but on the odd occasions -

PN214

THE SENIOR DEPUTY PRESIDENT: What's the difference?---Temporaries are actually paid by the week, your Honour, and have all the benefits of the award.

PN215

Is that a separate category of employment in the award?---Yes, your Honour.

**** PAUL JONATHON CURRIE XN MS PIERCY

PN216

So there's full time, part time, casual, temporary?---Temporary.

PN217

A temporary is paid by the week for some block of time?---Yes, they either have a fixed term contract or effectively a job contract. Pilkingtons generally use temporaries much more than casuals because we man the industry to pretty much on a balance, because the industry always has peaks and troughs so obviously when it starts to peak in a business like Pilkingtons they know pretty much for how long for what particular job and therefore they generally tend to employ more temporaries than casuals.

PN218

So to back to what you were saying about temporaries before I asked the questions?---So as I said Pilkington's record is if they require extra labour they would generally employ them as temporaries rather than casuals but they do from time to time also employ a few casuals. Crown Scientific and Pharmaglass do employ from time to time a few casuals, generally the same thing, if they have a particularly busy period, they require people for short periods of time. Insulation Solutions also do employ a few casuals, again from time to time, either to cover for absences or for peak periods. ACI Industrial Minerals, which has now been taken over by a company called Unimin, they do use casuals on their sites from time to time and on some sites we actually do have some long-term casuals at Unimin because of the way the business operates. Corning Australia also from time to time has casuals working. Corning is really just a warehouse so again it generally depends on the work load that is going through, very often around the Christmas period they put on another shift which is generally run by casuals just for that period.

PN219

MS PIERCY: Mr Currie, point 6, the directions - - -

PN220

THE SENIOR DEPUTY PRESIDENT: Just before you pass on. I think that was directed to the state location of where the casuals work?---That's in all of the sites across Australia, your Honour.

PN221

Yes, but the directions related to distribution of casual employees to whom the award applies across the eight jurisdictions in Australia. In other words, you've just run through a company split - - -?---Yes.

**** PAUL JONATHON CURRIE XN MS PIERCY

PN222

- - - which is helpful but I suppose you then overlay on top of that where the operations of those companies are actually located to work out, well, where are the casuals employed in Australia, is it Queensland, New South Wales, Victoria or what have you?---But I thought I'd be stopped, but it's purpose is Western Australia, in Western Australia ACI Operations has a plant in Perth, there is approximately a hundred production workers that work there. From time to time, particularly for re-sort reasons or long term absences of one thing or another from time to time ACI does employ casuals or contractors is probably more the correct word through a labour hire firm. To the best of my knowledge I don't know if there have ever been more than four or five casuals there at any one time for short periods of time. We also have a warehouse of Insulation Solutions where we have approximately three to four employees there. Generally we use full time employees but again from time to time to cover particularly holidays they would employ one or two casuals. In South Australia ACI have a plant in Adelaide. Again my information is from time to time there are a few casuals that do work there and again it is mainly to cover for absences and that sort of thing. Pilkingtons also have a plant in Adelaide and from time to time they also have a few casuals, my understanding is not on a long term basis, either for peak production or to cover some absences. There is also a small warehouse of Insulation Solutions and I'm not aware apart from covering for holidays that there are more than one or two casuals ever there. On top of that we have four Unimin sand mine sites, all of them are reasonably small, no more than four to six employees at each of the sites and again from time to time there would obviously be some need for casuals to cover either for production or for holidays.

PN223

In Victoria, ACI Operations has a big site in Melbourne, there is no casual use in Melbourne at all. Pilkington also have a big site in Melbourne and from time to time there are up to three or four casuals that again I think for peak periods ought to cover for absences. Insulation Solutions also have their main plant in Melbourne and I'm aware that from time to time they also usual casuals for the same thing, either peak production or to cover for leave. Unimin then have I think three or four plants also current and again I think they do have a few casuals from time to time that work in those plants and there is also Regina Glass Fibre which is actually a very small niche fibre glass maker working out of Ballarat. They only have I think a maximum of a dozen employees. I am aware that they do have one or two casuals working there

**** PAUL JONATHON CURRIE XN MS PIERCY

from time to time. In New South Wales ACI has a big plant in Penrith, they do employ casuals from time to time in the main generally for re-sort reasons. Pilkington have two plants in Sydney, a small one at Alexandria where from time to time they do have a few casuals either to cover for peak productions or leave and also at Ingleburn where there were no casuals. Crown Scientific and Pharmaglass are actually two registered companies but work out of the same premises. I don't know of them ever employing more than two or three casuals at any one time and Corning Australia is a small warehouse in Sydney where I'm not aware of there ever being more than about eight employees working there and I'm certainly aware that over Christmas time there are casuals employed for their peak period. We also have a sand mine near Newcastle at Unimin that currently employs I think about eight people. They are on a 12-hour roster and I am aware that there are currently three long-term casuals that have been working there to everyone's satisfaction, the casuals at the company and the union, because of their roster, the way that it works. In Queensland, ACI have a plant in Brisbane, they do have casuals from time to time working there predominantly to cover annual leave or long-term absences. There is also a big Unimin sand mine at Stradbroke Island where I think 20 to 25 employees work, and I am aware that from time to time there are also casuals working there. We also have a small Insulation Solutions warehouse in Queensland and I would presume that from time to time there would also be some casuals working there to cover annual leave.

PN224

Looking at that run-through, where is the predominant instance of casual employment?---Are you talking by state or by company?

PN225

By state, looking at that matrix of operations distributed across the states?---I would say in New South Wales and Victoria, because that's where the big manufacturing sites are. By company, my guess would be that Unimin on a day in day out basis would probably use more casuals than any other single company.

PN226

The Unimin operations are significant, the one near Newcastle, and also Stradbroke?---And Stradbroke Island, which has about 25. I don't think there are around Australia any more than about 60 employees working on sand mines in total.

**** PAUL JONATHON CURRIE XN MS PIERCY

PN227

So relevant to casuals, that's Stradbroke Island operation is where we would find a few casuals as well?---Yes, and Saltash. As I said, I am certainly aware that at Saltash we have three long-term casuals. I would also say that in Victoria we have three or four sites, there would be some use of casuals there, and also in South Australia.

PN228

What do you deduce from that about the state by state incidence of casual employment?---Well, in summary I would say that casual employment in the main the industry uses to either cover for peak periods for production mistakes that need to be rectified and for long-term absences, it's generally the way the industry uses casuals. There are very few companies that actually employ casuals direct, they generally go through a labour hire firm.

PN229

What is the significance of that?---I suppose the only significance is that it probably suits them because it's generally only for short periods of time, where probably 10 years ago most of the companies would employ people directly they find I think that they get a higher quality of people through labour hire firms rather than trying to recruit them themselves for short periods of time.

PN230

Does that mean they are covered by the award or not covered by the award?---Technically they are probably not covered by the award and in fact we don't have labour hire companies roped in but because we have certified agreements on top of the award we always have agreements with companies that the going rate on that site is what the casuals will be paid, whether they are employed directly by the company or through labour hire firms.

PN231

But the mechanism by which that is done is the enterprise agreement rather than the award coverage?---Yes, your Honour, because the problem as you are aware is trying to track labour hire companies and the major companies can change who they use and we would be for ever and a year trying to rope labour hire companies in.

PN232

Thank you.

**** PAUL JONATHON CURRIE XN MS PIERCY

PN233

MS PIERCY: Mr Currie, point (6) of the directions requires evidence as to the estimated probability that a particular full-time employee may be made redundant and the methodology used in calculating this probability?---Again, your Honour, from the union point of view it's very hard to answer that question without getting information from the employers. Certainly in the last 10 years the industry has had huge amounts of redundancies through technology and new work practices. Right at this moment the industry is fairly stable, so I don't think there's a great probability that there's going to be a lot of redundancies, certainly within the next few years. Certainly as I said, in the past the industry has probably shrunk to about a third of what it was 10 years ago.

PN234

Mr Currie, point (7) requires evidence as to estimated probability that a particular full-time employee will be terminated at the initiative of the employer other than by way of redundancy and the methodology used in calculating this probability?---Again, it's very difficult to answer this in any great detail without the employers giving us access, but certainly I don't know of any particular year within the whole industry where we would maybe get 10 people dismissed outside of redundancy for misconduct or not performing or something along those lines.

PN235

THE SENIOR DEPUTY PRESIDENT: That's 10 out of about 1500?---About 1500, your Honour.

PN236

Based on your stapled - - -?---Yes.

PN237

MS PIERCY: Thank you, your Honour, and thank you, Mr Currie.

PN238

THE SENIOR DEPUTY PRESIDENT: Now, Ms Brooks, are there any questions you would like to ask Mr Currie?

PN239

MS BROOKS: Your Honour, no, the only questions I had related to the spread of the casual membership and Mr Currie has dealt with that pretty clearly, so I have nothing further.

**** PAUL JONATHON CURRIE XN MS PIERCY

PN240

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Brooks. Thank you, Mr Currie, you have been most helpful. As Ms Brooks has not asked any questions you have no follow-up, I presume that's the case, Ms Piercy?

PN241

MS PIERCY: That's correct, your Honour.

PN242

THE SENIOR DEPUTY PRESIDENT: Thank you for your help, you may be excused as a witness, Mr Currie.

<THE WITNESS WITHDREW [11.04am]

PN243

THE SENIOR DEPUTY PRESIDENT: How would you like to proceed from here, Ms Piercy, do you want to address (8) and (9) by way of submissions and any other submissions you wish to make and then turn to Ms Brooks?

PN244

MS PIERCY: That will be fine, your Honour.

PN245

THE SENIOR DEPUTY PRESIDENT: All right.

PN246

MS PIERCY: In relation to point (8), submissions to the relevant full-time employees subject to the comparison with the casual employees, in other words, what length of service and other characteristics are attributed to the full-time employees, this would be based on one year's service which is stated in the award. Most of the provisions that are in the award in relation to leave, etcetera, are on an annual basis, your Honour.

PN247

In relation to point (9), submissions as to how one-off benefits available to full-time employees should be treated, that is, termination of employment and severance, basically it should be treated as a benefit to full-time employees as it is not available to casual employees.

PN248

THE SENIOR DEPUTY PRESIDENT: Can I take you back to your table which was attached to A2 which you handed up at the last hearing. Essentially the points (8) and (9) relate to elements of that table and you will recall that at the last hearing there was some discussion about, well, if you look at long service leave, an employee only achieves a benefit under the long service leave provisions - I think we used Queensland as an example - after 10 years and they only achieve the full benefit after 15 years, that is, you get X number of weeks after 15 years service but if you leave before 15 years and after 10 years, you are paid out on termination for pro rata long service leave but if you leave before 10 years you don't get anything.

PN249

MS PIERCY: That's true.

PN250

THE SENIOR DEPUTY PRESIDENT: So just looking at long service leave, that was one of the elements on which there was some discussion between us, implicit in your table is that you are making the comparison with an employee of 15 years service based on the fact that you have used a 4.3 long service leave figure. Point (8) seeks submissions as to, well, is that the appropriate employee for the purpose of the comparison and if so, why?

PN251

MS PIERCY: What the union has done is taken the table as was presented in the metals case and provided the information from the award into the table as was the metals case and how the calculation was provided I have no idea, your Honour, just that it was approved by the Full Bench and the union sought to use this as evidence in support of our application.

PN252

THE SENIOR DEPUTY PRESIDENT: There's an interesting point, isn't there, in relation to these sorts of issues. If, for example, you are going to take the 15-year full-time employee as the appropriate comparator, then what do you do with the notice of termination? Just remind me, what does the award provide for someone of 15 years service who is terminated? I think it's four weeks, isn't it?

PN253

MR CURRIE: Four weeks notice, unless they're over 45, then it's five weeks notice.

PN254

THE SENIOR DEPUTY PRESIDENT: Yes, so for the purpose of calculating the long service leave the comparison is a long-serving employee of 15 years service, when you therefore come to do the calculation of the termination benefit you would divide four weeks by 15, wouldn't you, on the basis that the comparison is with someone of 15 years seniority and if you then say, what's the probability that someone is ever going to receive that benefit of termination pay, on the evidence that Mr Currie has given this morning it is an extraordinarily low probability. In other words, in providing this table in A2 essentially as the case in the safety net you are seeking, I am looking for submissions as to how that table all hangs together and produces this figure which on your figures is 23.5 per cent versus the loading of 25 per cent which you are seeking.

PN255

MS PIERCY: Your Honour, to further provide submissions I would need more time to review the table and make further submissions at a later date.

PN256

THE SENIOR DEPUTY PRESIDENT: Well, these directions were sent out on 22 May following the last hearing where most of those issues were raised from the bench and you were on notice that they were the sorts of things that I was raising.

PN257

MS PIERCY: Yes, I understand, your Honour.

PN258

THE SENIOR DEPUTY PRESIDENT: So what exactly are you proposing now?

PN259

MS PIERCY: Well, if your Honour is not satisfied with the submissions provided today and you require further details as to the calculation of the comparison of the full time employees and the casual employees, I can only point out that I've done a comparison as to what was done in the metals casuals application. Also, if your Honour, there are a lot of casuals at the glass industry sites that work side by side with the metal industry casuals who are gaining that benefit at the moment. This is the reasoning behind our application to bring that difference up to the same benefit as the other casuals are receiving.

PN260

THE SENIOR DEPUTY PRESIDENT: Yes, I think you mentioned that last time. Ms Brooks, do you have any comment you want to make on the request for further time to make additional submissions?

PN261

MS BROOKS: No, if your Honour, really we're in the Commission's hands in relation to that, particularly given the difficulty that the union has faced in providing the Commission with answers to points two to seven given our inability to assist in that regard. We're really in the Commission's hands in relation to the request for further time to deal with the particulars of the comparison table.

PN262

THE SENIOR DEPUTY PRESIDENT: It does appear from the interchange this morning that perhaps there hasn't been the understanding of exactly what the issues were and what input the Commission was seeking, particularly in relation to matters eight and nine. So in that context, I am happy for you to take some extra time to make further submissions. Is there a particular time frame that you had in mind?

PN263

MS PIERCY: Perhaps two weeks would be appropriate, if your Honour.

PN264

THE SENIOR DEPUTY PRESIDENT: All right. Now, if we look at the calendar two weeks out, that would be 1 July. Any issues if we said 10am on 1 July?

PN265

MS BROOKS: Not from my point of view, if your Honour, no, that's fine.

PN266

THE SENIOR DEPUTY PRESIDENT: By the way, I'm not contemplating written submissions here. I'm happy for it to be a hearing and for it to be oral submissions. So I'm not seeking to increase your workload by having to prepare written submissions in advance of 1 July.

PN267

MS PIERCY: 1 July is all right with the union.

PN268

THE SENIOR DEPUTY PRESIDENT: Well, we'll say 10am on 1 July. I'll list another hearing to provide the opportunity for further oral submissions addressing the - well, it's really the opportunity for you to address any of the points that you want to make in support of the case that you're putting forward and particularly you'd focussed last time on document A2 which was the comparison table and it was that comparison table and the discussion we had last time that essentially gave rise to the directions.

PN269

So in making your submissions on 1 July, you're able to address any of the matters that you want to press in relation to the material at A2 or any other element of your case and particularly matters that are dealt with in the directions of 22 May which you want to - or from today. That's probably as clear as mud but do you feel that you understand what we're going to do on 1 July or perhaps it might be better if you play back to me what you understand we're going to do on 1 July.

PN270

MS PIERCY: Your Honour, you require clarification on points 8 and 9 of the directions and a further explanation of the comparison of the full time employees to casual employees schedule.

PN271

THE SENIOR DEPUTY PRESIDENT: Yes, that's a fair summary of it and to make sure we're all on the same sheet of music, I'll encapsulate that in some written directions so that we're trying to make sure we're all talking about the same thing. Thank you very much. Thank you, Mr Currie, you've been most helpful this morning and I thank you for your forbearance. On that basis, we'll adjourn until 1 July.

ADJOURNED UNTIL TUESDAY, 1 JULY 2003 [11.20am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

PAUL JONATHON CURRIE, AFFIRMED PN191
EXAMINATION-IN-CHIEF BY MS PIERCY PN191
WITNESS WITHDREW PN243