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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 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N 3817
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT KAUFMAN
C2003/1975
AG2003/5362
WOOLWORTHS LTD (TRADING AS
SAFEWAY)
and
AUSTRALASIAN MEAT INDUSTRY
EMPLOYEES UNION
Application under section 170LW of the Act
for settlement of dispute re the correct pay
for employees working on a public holiday
which falls on a weekend
APPLICATION TO VARY CERTIFIED AGREEMENT
Application under section 170MD(6) of the
Act by Woolworths Ltd to vary the Woolworths
Ltd (trading as Safeway) and Australasian
Meat Industry Employees Union Agreement 2002
to remove ambiguity
MELBOURNE
10.44 AM, WEDNESDAY, 23 JULY 2003
Continued from 22.7.03
PN1141
THE SENIOR DEPUTY PRESIDENT: Yes, I apologise for the delay but it was due to circumstances beyond my control. Dr Smith, do you have any more evidence to lead?
PN1142
DR SMITH: No, your Honour. I have got the material that you requested about the break-up of the costings.
PN1143
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1144
DR SMITH: And I can provide that to the Commission. These have been prepared by Mr Packer, at your request - - -
PN1145
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1146
DR SMITH: - - - showing that of the $216,000 savings per annum referred to in his statement, 80,000 was referable to the reduction in the penalty from 300 per cent to 250 per cent with the balance being the removal of the weekend penalties.
PN1147
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1148
DR SMITH: And over three - you have got the three year figures as well on the page.
PN1149
THE SENIOR DEPUTY PRESIDENT: So the balance was the removal of the weekend penalties, was it?
PN1150
DR SMITH: Yes.
PN1151
THE SENIOR DEPUTY PRESIDENT: That is not the penalty on the penalty.
PN1152
DR SMITH: No. Well, it is the - they are one and the same.
PN1153
THE SENIOR DEPUTY PRESIDENT: Yes, sorry, they are because weekend penalties remain, but there wasn't a penalty on the penalty, yes. Yes, thank you for that. Do you accept that, Mr Cooney?
PN1154
MR COONEY: Well, your Honour, can we just have a bit of time to work it out perhaps?
PN1155
THE SENIOR DEPUTY PRESIDENT: Yes, of course.
PN1156
MR COONEY: Could somebody have a talk to, I don't know, the assistant secretary or something like that.
PN1157
DR SMITH: To explain or - - -
PN1158
MR COONEY: Yes, to explain it. Your Honour, while I am on my feet, I mentioned this to Dr Smith before, I am going to ask, your Honour, for leave for Mr Bird to explain why Mr Pearce hasn't been called. I don't know anything turns upon this but this is in respect to the meeting of 23 September. And I was just saying, before my learned friend closes his case, whether that would make any difference to who he would call or not call. I would simply give you an explanation as to why Mr Pearce has not been called, but I didn't want to make that application after my learned friend had closed his case, your Honour. And I have no - whatever he wants to do, I have got no objection to it.
PN1159
DR SMITH: Well, yes, your Honour, we have no difficulty with Mr Pearce not being called. I mean, perhaps I should explain why we haven't called Mr Carr and Janine Duggan who were at the meeting on the 23rd. We didn't think it was appropriate or helpful to the Commission to call every possible witness. So long as you won't infer the rule in Jones v Dunkel against us for their not being called, we won't do the same in relation to Mr Pearce.
PN1160
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN1161
MR COONEY: Well, your Honour, I think that the - I didn't want to put it in terms of, you know, sort of legal tactics, as it were but what would help the Commission who after all I think is - it is our duty to do it, so it is just put in that context, your Honour. The other thing while I am on my feet, and we haven't - I don't know whether we have shown you this. There are some minutes taken by Mr Davey, and we have had those typed up in the same way as Dr Smith had his typed up. And, your Honour, I tender - well, don't tender it at this stage because Mr Davey hasn't been called. So they are the issues anyway. There is another issue I think my learned friend wanted to raise.
PN1162
DR SMITH: I wonder whether - in looking at this typed up version, if Mr Cooney has Mr Davey's original notes.
PN1163
MR COONEY: Yes.
PN1164
DR SMITH: It is very hard to read the photocopy. And I can then just ask someone to just compare these typed up notes with that original.
PN1165
MR COONEY: They are out there talking now.
PN1166
THE SENIOR DEPUTY PRESIDENT: Yes. Well, they will be provided to you, as I understand it, Dr Smith.
PN1167
DR SMITH: Yes. Your Honour, the other matter relates to the objections we made to certain of the material in the union's witness statements.
PN1168
THE SENIOR DEPUTY PRESIDENT: Yes. Have you closed your case? Have you concluded your evidence?
PN1169
DR SMITH: I have. Yes, I have closed my case.
PN1170
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1171
DR SMITH: Mr Cooney and I have had a discussion about how we would handle those objections.
PN1172
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1173
DR SMITH: The agreement that we have reached is that our objections would be noted. I do not propose in cross-examination to take the witnesses to any of that material, and he is not proposing to take them to that material in re-examination.
PN1174
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1175
DR SMITH: The material will simply go in, with our objections noted, as background material for the benefit of the Commission.
PN1176
THE SENIOR DEPUTY PRESIDENT: Yes, thank you.
PN1177
MR COONEY: These are the dates from Mr Davey. I will perhaps give them to my learned friend.
PN1178
THE SENIOR DEPUTY PRESIDENT: Are we ready to proceed, gentlemen?
PN1179
PN1180
MR COONEY: Mr Bird, is your full name Eric Graham Bird?---It is, yes.
PN1181
And you live at 27 Victoria Street, Williamstown?---I do.
PN1182
And are you a union secretary and, in fact, the Secretary of the Victorian Branch of the Australasian Meat Industry Employees Union?---I am,
PN1183
And there is a statement that has been put in. Have you read that statement, by your good self?---I have.
PN1184
And what do you say about it; is it true and correct?---It is.
PN1185
And there is just one other matter, you heard me asking his Honour for leave. Could you just tell us about Pat Pearce who I think was at this meeting on the 23rd and had something to do with the negotiations?---Well, Pat Pearce has been off work now for about 12 or 13 weeks I think. He has had a - on a workers compensation matter, he has got a stress related claim.
PN1186
All right. Perhaps leave it at that?---So he is not around.
PN1187
Yes, okay. All right, thanks.
PN1188
THE SENIOR DEPUTY PRESIDENT: Are you tendering Mr Bird's witness statement?
PN1189
**** ERIC GRAHAM BIRD XN MR COONEY
PN1190
THE SENIOR DEPUTY PRESIDENT: Yes, Dr Smith.
PN1191
PN1192
DR SMITH: Mr Bird, you are the State Secretary of the AMIEU?---I am.
PN1193
And under the rules of the union, do you have the authority to enter into enterprise agreements on behalf of the union?---I do.
PN1194
If I can take you to the proceedings before Commissioner Frawley in 1999; you recall those, do you?---I do, yes.
PN1195
Now, you were a representative of the union in those proceedings?---I was.
PN1196
And during those proceedings, do you recall, there were a number of conferences between the parties and the Commission?---I don't recall exactly what happened but I understand that was the - there was a conference and people coming in - people going in and out, yes.
PN1197
And do you recall that after some period of time Commissioner Frawley issued a recommendation?---I do.
PN1198
And that the parties indicated that they would accept it?---That is right.
**** ERIC GRAHAM BIRD XXN DR SMITH
PN1199
Now, if I put it to you that the outcome as encapsulated in those recommendations reflected the compromise position that Coles had already adopted instead of the advice the union had received from Gill Kane and Brophy in relation to the Sunday penalty, that - you would accept that, would you?---No. I wouldn't accept that that was a compromise. I would argue that the recommendation of Commissioner Frawley was in line with the decision of Northrop J, and was in line with the union's belief as to what should be paid.
PN1200
Well, then it was a settlement that the union was prepared to accept, even though that it was less than the advice it had received from its lawyers?---It was less than the advice we received from our lawyers, that is right, but - - -
PN1201
Yes, thank you?---That advice from the lawyers was not the opinion of the union.
PN1202
I will leave it at that then, Mr Bird. If I can take you to the negotiations for the - what I call the 2002 enterprise agreement: you represented the union in those negotiations?---I did.
PN1203
In fact, I think you say in your statement at paragraph 3 that you led those negotiations?---That is correct.
PN1204
And during those negotiations the union put out some newsletters to its members?---It did.
PN1205
And did you authorise each of those newsletters?---I did.
PN1206
Now, during the negotiations with Safeway two key issues on the table were weekend penalty rates; is that correct?---That is right.
**** ERIC GRAHAM BIRD XXN DR SMITH
PN1207
And the public holiday penalty issue?---I wouldn't have thought that that was a key issue. As far as the union was concerned, the other key issue was the meat slicer.
PN1208
Well, at least from the point of view of Safeway they were two key issues; would you agree with that?---Well, they were among a number of issues that they put on the table, yes.
PN1209
Yes. Now, Safeway initially wanted to remove Saturday penalties entirely; is that correct?---Yes.
PN1210
And to reduce the Sunday penalty to a 50 per cent penalty?---I think that is right, yes.
PN1211
Yes, and in the case of the public holidays, Safeway wanted to pay a maximum of 250 per cent in any circumstance; is that correct?---That is correct.
PN1212
Now, if I take you to the union newsletter number 2 which is - have you got your statement there?---Yes.
PN1213
If you go to attachment B, if you go to the first page of newsletter number 2?---Yes.
PN1214
And down at item number 3, does that set out accurately the position of the respective parties at that time?---It does, yes.
PN1215
Thank you. Now, apart from this issue of public holidays, Safeway was proposing a savings clause, wasn't it, in relation to weekend penalty rates?---That is right, yes.
**** ERIC GRAHAM BIRD XXN DR SMITH
PN1216
And this was so that the reductions in the weekend penalty rates would only apply to new employees employed after 1 July 2002?---Well, that is the way Safeway tried to put it, yes.
PN1217
Yes?---We didn't agree that that was the case but that was the way they put it.
PN1218
Right. If I can take you to newsletter number 3 which is the next document in attachment B. I will give you a moment to have a look at it but I will ask you this question first. Would you agree with me that the newsletter does not specifically deal with the issue of public holiday penalties, apart from the issue of - the broad issue of penalties in item 4 which deals with the savings clause?---That looks to be right, yes.
PN1219
If I can then take you to newsletter number 4. Now, starting at the first page near the bottom it sets out what appears to be Safeway's response to the union proposal of 1 August; is that correct?---That is correct, yes.
PN1220
And if we go to item 5, there is an express reference, isn't there, to Safeway's desire to cap public holiday penalties at 250 per cent?---That is correct.
PN1221
What do you understand the reference to the word "cap" to mean there?---I understand it to mean that what Safeway were after was to pay no more than 250 per cent for a public holiday.
PN1222
Right, okay. Now, if I can take you to the next box headed: Union proposal. It states that the union negotiating committee would be prepared to recommend that Safeway members accept certain things as a settlement of the new agreement; do you see that?---I do.
PN1223
And then if you go to item 4?---Yes.
**** ERIC GRAHAM BIRD XXN DR SMITH
PN1224
You see that, it says:
PN1225
Public holidays capped at 300 per cent.
PN1226
?---Yes.
PN1227
The union was prepared to accept that proposition?---Well - - -
PN1228
As part of a package, of course?---As part of our proposal, yes.
PN1229
Now, if I take you to paragraph 5 on the next page under the heading: Public holidays, it is clear there, isn't it, that the union is offering to Safeway and it is telling its members that it has offered a compromise of 300 per cent maximum giving up the penalty if the public holiday falls on the weekend; it is telling its members?---That is right, yes.
PN1230
So I just want to be clear about this, the issue of quantum of weekend penalties generally and Safeway's desire to reduce those was a separate issue from its desire to cap public holiday penalties?---Well, clearly there - if the penalties go on a weekend which was what Safeway wanted, and what we understood to be Safeway's number one issue, well, the matter of public holiday payments on a Sunday becomes irrelevant. There is no penalty on a Saturday. There is no penalty on a Sunday. Therefore, you will only obviously get whatever the public holiday percentage is.
PN1231
Yes?---So one - if they get what their number one desire was, well, then the other one is cancelled out.
PN1232
Yes, of course there is a relationship between the two, but I am trying to establish in your mind as to whether they are two discrete issues?---Well, as I say, they are all discrete issues.
**** ERIC GRAHAM BIRD XXN DR SMITH
PN1233
Thank you?---They are put as a package.
PN1234
Yes?---But obviously at the end of the day you can agree to whatever you finally arrive at.
PN1235
Thank you. Yes, that is correct. Now, if I can take you to newsletter number 5, and there is a box starting on the first page going over to the second page under the heading: Proposal endorsed by the negotiating committee. And I think you have said in your statement that what is put in that box was essentially taken by you from a tax that you received from Alec Burton; is that correct?---That is right, that is right.
PN1236
And the - otherwise there is a reference in there to public holidays?---There is.
PN1237
250 per cent for public holidays to be worked on a voluntary basis?---That is right.
PN1238
And there is no other reference to public holidays in that newsletter?---No.
PN1239
Actually I correct - I should point out to you the fifth point in the issues you have rejected, there is a reference to reduced minimum working hours on a public holiday from four to three but, apart from that, there is no reference to public holidays?---No, not as such, no.
PN1240
Now, there is nothing there to say that the union has rejected Safeway's proposal to cap public holidays, is there?---Yes.
PN1241
So - - -?---There is.
**** ERIC GRAHAM BIRD XXN DR SMITH
PN1242
Where?---Well, on page one of the newsletter we set out the end of the negotiations, what happened in the agreement that has been reached. And the fact is that what we say, that the company has dropped off their proposals to take away penalties on Saturday, and we are basically left with the current arrangement.
PN1243
But - - -?---We then - - -
PN1244
Well, if I can just stop - - -?---We then - - -
PN1245
If I can just stop you there, Mr Bird, you accepted earlier that the issue of the Safeway desire to reduce Saturday penalties, weekend penalties, was a discrete issue, related but discrete issue. I am putting to you that there is nothing in this document to suggest to your members that the union has rejected Safeway's proposal to cap public holiday penalties?---Well, I say to you that, in my view, it is absolutely clear that that is the case.
PN1246
Well, tell me - - -?---The 75 per cent penalty that the company wished to remove has been retained. The current arrangement was that public holidays were paid at 300 per cent. This says that current - the new arrangement will be that public holidays will be paid at 250 per cent and there is no - there is no indication that that is going to be capped.
PN1247
Mr Bird, the capping related to Sunday penalties as well, didn't it, not just the Saturday penalties?---It did, it did.
PN1248
Well, there is no reference to a rejection to cap public holiday penalties on a Sunday, is there?---Well, I mean, what you have got is a situation where the current arrangements that people were working under when they came to vote for the new ones had a system where you got paid 300 per cent for a public holiday, and then the penalties at the weekend applied on top. What this document says is, the new arrangement will be 250 per cent that will be paid for a public holiday and it is quite clear that the penalties apply on the weekend.
**** ERIC GRAHAM BIRD XXN DR SMITH
PN1249
But, Mr Bird, your newsletter to members which would be read by them in the context of the previous newsletters specifically sets out the other Safeway changes that have been rejected, and it makes no reference to the rejection of capping of public holidays, does it; I simply want you to answer yes or no?---Well, it says that all other Safeway changes - - -
PN1250
If you could just answer yes or no?---Well, you can't answer yes or no to that because it actually says - - -
PN1251
Well - - -?---Well, the answer is yes. It says:
PN1252
All other Safeway changes have been rejected.
PN1253
It doesn't make any reference, does it - - -
PN1254
THE SENIOR DEPUTY PRESIDENT: Yes, then it goes on to say what Safeway wanted, and there is nothing about Safeway wanting to cap the public holiday payments on weekends there, is there?---Well, it is my belief that that is - that is covered by the proposal which is endorsed, and the proposal which is endorsed is for 250 per cent: a reduction from 300 to 250, that nothing else changes.
PN1255
Yes. Well, the document speaks for itself?---Yes.
PN1256
Thank you.
PN1257
DR SMITH: Mr Bird, if I can take you to paragraph 31 of your statement.
PN1258
THE SENIOR DEPUTY PRESIDENT: Paragraph?
**** ERIC GRAHAM BIRD XXN DR SMITH
PN1259
DR SMITH: Thirty-one. You say in the first sentence of the statement that:
PN1260
At the meeting on 23 September consensus was reached between Woolworths and the union in the terms of the agreement.
PN1261
?---That is right.
PN1262
Is that correct?---That is correct.
PN1263
So that was when the agreement was reached?---That is right.
PN1264
And you say in your statement that the agreement was that the public holiday loading was not to be capped when the public holiday fell on the weekend, don't you?---That is right.
PN1265
And you say that, in fact, both at paragraph 31 and 34; I think 34 might just be repetition. And you say at paragraph 41:
PN1266
This issue was clearly understood by Woolworths.
PN1267
?---Well, that is my understanding.
PN1268
Well, that is what you say?---That is right.
PN1269
Who at Woolworths, do you say, clearly understood that?---Those that were at the meeting on the 23rd.
**** ERIC GRAHAM BIRD XXN DR SMITH
PN1270
Including Mr Burton?---Including Mr Burton.
PN1271
Okay, and including Mr Packer?---Including Mr Packer.
PN1272
Okay. Well, you have heard Mr Burton and Mr Packer say the opposite, haven't you?---I have heard them say the opposite, yes.
PN1273
Are you saying that your statement is still correct at paragraph 41?---I do, yes.
PN1274
So you are saying that Mr Burton and Mr Packer, their evidence shouldn't be accepted by this Commission, are you?---Well, I am saying that my - that what I say I believe to be correct. We put a proposition, they accepted it.
PN1275
Do you still now say that they understood clearly?---Well, I believed on the day that they understood what was put and what was agreed upon, yes.
PN1276
THE SENIOR DEPUTY PRESIDENT: Mr Bird, can I ask you what proposition did you put that you say they understood; how was the proposition worded?---We put a proposition that we would accept a proposal at the end of the day of no change to the current arrangements of the current agreement other than there would be a 3-1/2 per cent increase per annum, the public holiday loading would go from 300 to 250 per cent, and I think there was an agreement about tidying up the wording of the agreement.
PN1277
Yes, thank you.
PN1278
DR SMITH: If I can take you now to the notes taken by Mr Packer at that meeting on the 23rd. I have only got one copy of the typed version. If we could find another one perhaps and give it to the witness.
**** ERIC GRAHAM BIRD XXN DR SMITH
PN1279
MR COONEY: Sorry, your Honour, we will see - we have got one, and if you can just - - -
PN1280
DR SMITH: Here we are, we have got one.
PN1281
THE SENIOR DEPUTY PRESIDENT: Yes, it is exhibit W5 we are looking at, is it?
PN1282
DR SMITH: I think, yes, that is right, yes. Now, Mr Bird, you accept that Mr Packer was present at that meeting?---I do.
PN1283
And that he took some notes?---Yes.
PN1284
If we start at page one - - -?---Well, I - well, when I say that, I can't recall him writing them but I presume that he did, yes.
PN1285
Okay. If we start on page one, those noted as being correct are Alec Burton, Gerry Carr, Janine Duggan and Evan Packer for the company.
PN1286
THE SENIOR DEPUTY PRESIDENT: As being present rather than being correct.
PN1287
DR SMITH: I am sorry. What did I say?
PN1288
THE SENIOR DEPUTY PRESIDENT: As being correct.
PN1289
DR SMITH: Yes, being present, yes. And Graham Bird, Lawrie Burley, Pat Pearce and Paul Davey for the union; is that correct?---That is right.
**** ERIC GRAHAM BIRD XXN DR SMITH
PN1290
Does that fit with your recollection of the attendees?---Yes.
PN1291
Yes. Now, it appears from the notes that the discussion started with the issue of the savings clause, and that you expressed some concerns about the savings clause?---That is right.
PN1292
Do you recall saying that at the meeting?---Yes, yes, I do.
PN1293
And if we go to the bottom of the second page, the notes record you as having said:
PN1294
Public holidays, would give it to fix it up.
PN1295
Do you see that?---I do.
PN1296
Yes. Then the notes appear to record on the next page a discussion about wage increases; do you see that on page - on the next page?
PN1297
THE SENIOR DEPUTY PRESIDENT: Well, just before you go there, did you say that you would give up public holidays to fix it up?---Well, I certainly didn't say we would give up the public holidays, including the penalties on the weekends, to fix it up. What I would have said is that the union would be prepared to look at the public holidays clause, to fix it up. If that was what was required to reach agreement with the company dropping off everything else, the union was prepared to look at the public holiday clause.
PN1298
Yes, thank you.
[11.12am]
**** ERIC GRAHAM BIRD XXN DR SMITH
PN1299
DR SMITH: Then if we, as I said, to the next page, it seems to deal with issues relating to wage increases, and I don't ask you to comment on that. Then on the next page, Mr Burton is recorded as stating that what - stating what the company would be prepared to do. Do you see that?---Yes.
PN1300
Page 4?---Yes.
PN1301
And it appears to amount to a series of propositions; do you see that?---Yes.
PN1302
It appears that the company is saying it is prepared to offer a three year agreement, with three lots of three and a half per cent wage increases?---Yes.
PN1303
That it might be able to negotiate these to be front loaded?---Yes.
PN1304
Does that fit with your recollection?---Yes.
PN1305
And that it might be able to negotiate, or give up the meat slicer claim; was that correct?---Yes. Yes.
PN1306
If the union agreed to public holidays at 250 per cent? Does that fit with your recollection?---Probably, yes.
PN1307
And to a reduction in Saturday penalties?---That is probably right, yes.
PN1308
And then there was a 15 minute break, and it looks as if there were four components of your response. Do you recall making that response?---It seems in line with - yes, that would be about right, I would think. Three year agreement, wage increase, public holidays at 250 per cent, and they drop off the penalties.
**** ERIC GRAHAM BIRD XXN DR SMITH
PN1309
Okay. If I take you to the next page, there is a discussion about how many meat department employees work on the Saturday, and some - but there is no reference, is there, to the issue of weekend penalties on public holidays on the next page?---No, doesn't look to be.
PN1310
Then if we go to the next page, which I think is page 6, under the heading, 15 Minute Break; do you see that?---I do.
PN1311
It looks like a counter offer by Mr Burton; is that your recollection of what happened?---Well, it is an offer, yes.
PN1312
And he is recorded as saying, public holidays at 250 per cent capped. Do you recall him saying that?---No.
PN1313
You don't recall?---No. Well, I recall him not saying that. In fact, I don't believe the word, cap, was used.
PN1314
Did you take at the meeting yourself?---I didn't take notes, no, Mr Davey took notes.
PN1315
Do you have a perfect recollection of what was said at the meeting?---Well, I wouldn't guarantee every word that was said at the meeting, but it is my recollection that the word, cap, wasn't used.
PN1316
But you could be wrong about that, couldn't you?---Well, I don't think I was - I am wrong, but - - -
PN1317
But you could be wrong?---I have been wrong in the past.
**** ERIC GRAHAM BIRD XXN DR SMITH
PN1318
Okay. Well moving on, the notes record you as questioning a lack of up-front loading in the wage increase?---Mm.
PN1319
Could that be what you said?---It could be, yes.
PN1320
THE SENIOR DEPUTY PRESIDENT: Sorry, could you repeat that?---Sorry, it could - - -
PN1321
I didn't hear the question.
PN1322
DR SMITH: After the proposition that has been put by Mr Burton, Mr Bird is recorded as saying that you would - or saying to Mr Burton, you said you would look at an up-front loading, and I am asking Mr Bird whether he might have said that, and he said yes.
PN1323
THE SENIOR DEPUTY PRESIDENT: Yes, thank you.
PN1324
DR SMITH: And Mr Burton gave an explanation as to why there wasn't up-front loading. Do you recall that?---Sorry, as to why there wasn't?
PN1325
As to why there wasn't an up-front loading as part of that counter offer?---Yes, yes, yes.
PN1326
Do you recall that?---Yes.
PN1327
If we go to the next page, there appears to be a discussion about a bargaining agent's clause. Do you recall that?---Yes.
**** ERIC GRAHAM BIRD XXN DR SMITH
PN1328
But nothing on that page about public holiday penalties?---No.
PN1329
Then there was a 15 minute break?---Yes.
PN1330
Then you are recorded as saying:
PN1331
Prepared to accept proposition.
PN1332
Do you recall saying that?---Well, I can recall that - by the time we got to this stage, that we were putting a position that was hopefully going to be the last one, yes.
PN1333
Yes, and what proposition were you accepting?---We were putting a proposition of three and a half, three and a half, three and a half. Reduction in the public holidays from 300 to 250, and re-write of the agreement.
PN1334
But you weren't putting a proposition, you were accepting a proposition, according to the notes?---Well, we were prepared to accept that proposition, three and a half, three and a half, three and a half, public holidays reduced from 300 to 250, and they have the agreement patched up to wherever there was a few difficulties.
PN1335
Well, Mr Bird, unless those notes are inaccurate, it looks like you are accepting a proposition of public holidays at 250 per cent capped, doesn't it?---Well, you may say that but - - -
**** ERIC GRAHAM BIRD XXN DR SMITH
PN1336
MR COONEY: Your Honour, I object - oh, well that is the question - - -?---You may say that but what I am telling you is, that we weren't accepting anything of the sort. We were accepting a position that I believed was agreed between the parties, that we would fix this problem up as a compromise situation, form where we both started, three and a half, three and a half, three and a half, public holidays reduce from 300 to 250, and the bits and pieces of the agreement being fixed in a situation where the company had dropped off all of their other proposals.
PN1337
DR SMITH: Well, I put it to you, Mr Bird, if the notes are accurate, and Mr Burton did use the word, capped, it would be reasonable for him to take - to have formed the opinion that when you came back and said, accept the proposition that he was accepting a deal of 250 per cent capped?---Well, what I am saying to you is that that wasn't the position that we arrived at at the end of the day. We arrived at a situation where both sides agreed that there would be a wage increase, three and a half, three and a half, three and a half. That the public holidays would reduce from 300 to 250, and there was no mention of the word, capped, and that we would re-write the agreement.
PN1338
Well, that is not what I put to you. I put to you that if the notes are accurate, and Mr Burton - - -
PN1339
MR COONEY: Your Honour, I object - - -
PN1340
DR SMITH: Well, it is - - -
PN1341
MR COONEY: No, hold on. I object because - well, if you see if the notes are accurate, what GB is accepting, according to these notes, is three and a half, three and a half, three and a half, PH, and the word, capped, just doesn't appear. So for my learned friend to say that is there is not quite accurate, your Honour.
PN1342
THE SENIOR DEPUTY PRESIDENT: Well, I have another difficulty with that question, Dr Smith. The witness has said that the notes aren't accurate, in that on page 6, the word, capped, was not used. So I don't know where it gets you, saying if the notes are accurate, he doesn't accept that they are accurate.
**** ERIC GRAHAM BIRD XXN DR SMITH
PN1343
DR SMITH: Yes, all right, okay, I will move on.
PN1344
If I can take you to paragraph 35 of your statement. It refers to what you say union officials told relevant employees and that you say that the officials of the union told the relevant employees that the proposed agreement would allow them to keep their entitlements to the formula by which the wages they were then receiving on a public holiday, which fell on a weekend was calculated. Do you see that?---Yes.
PN1345
Now, that is what you say you have been told by officials about what they told people; is that right?---That is right.
PN1346
Yes. And are you referring to material such as what is in Mr Burley's statement at paragraph 31. Perhaps you might want to have a look at that?---I don't have it with me. Thank you.
PN1347
MR COONEY: Was that 31?
PN1348
DR SMITH: Para 31. So you are essentially relying on what they have told you along those lines; is that correct?---That is right. And clearly on what was explained to people as what Mr Burley understood was agreed at the meeting, and what we explained to the committee the next day, as to what the basis of the agreement was.
PN1349
But you don't have direct knowledge of what they said to those employees, do you?---I wasn't there, no.
**** ERIC GRAHAM BIRD XXN DR SMITH
PN1350
No. Now, coming back to this issue of capping of public holiday penalties, you are aware, aren't you, that during the negotiations, as I have said, Safeway had a claim to cap public holidays, and that it was an important issue for them?---Well, I must confess, I didn't see it as a particularly important issue for them. We certainly didn't regard it as a particularly important issue as far as we were concerned. The important issues as far as we were concerned were the - obviously the wage increase, but particularly the attempt to take away the penalty on Saturday. And the introduction of the meat slicer, and early on, the attempt to introduce junior rates of pay for meat - for cabinet attendants.
PN1351
Yes, well, notwithstanding what you say about that, there are frequent references to the issue of capping of public holidays in your newsletters to members and - - -?---There are. We have mentioned it in a couple of newsletters, when we are outlining what the company has proposed.
PN1352
And at various stages you have used, in your newsletters, the words, "capped" or the words, "in any circumstance" or "fixed" - - -?---That is right.
PN1353
Or "maximum payable"?---That is right.
PN1354
Yes, all of those references I have taken from your newsletters?---Yes.
PN1355
In relation to public holidays. And looking at newsletter number 4, if you want to have another look at that?---Yes.
PN1356
That was put out by the union only a month before the negotiations concluded. Is that correct?---That is correct.
PN1357
And at that time the only gap between the parties was the issue of quantum, not whether it should be capped or not, at that time?---On public holidays you are talking about?
**** ERIC GRAHAM BIRD XXN DR SMITH
PN1358
Yes. Yes?---There is a fair gap between the union and the company on the issues - - -
PN1359
I am talking about the public holidays, Mr Bird?---Well, I mean you can't just take one issue out and say that you were nearly agreed.
PN1360
THE SENIOR DEPUTY PRESIDENT: Well, that is what you are being asked about, Mr Bird?---Sorry?
PN1361
You are being asked about that?---Yes, well, there was. We said, capped at 300, they said capped at 250.
PN1362
DR SMITH: So the difference between you on that issue was quantum, was it? The percentage?---That is right, yes.
PN1363
Yes. Now, Mr Bird, do you accept that senior union officials such as yourself have a duty to be fair and transparent in negotiations for enterprise agreements?---Of course.
PN1364
And that union officials, just as managers of the companies, have ethical responsibilities in those negotiations?---Indeed.
PN1365
Yes. That is, they should conduct themselves in good faith?---They should indeed, yes.
PN1366
And if during negotiations they are reaching agreement on issues, it is incumbent on both sides to be clear about what the agreement is. Do you accept that?---I do, yes.
**** ERIC GRAHAM BIRD XXN DR SMITH
PN1367
Yes?---I do.
PN1368
Well, let us go back to the facts of this case. You were aware weren't you, that it was an issue. You say it wasn't the most important issue, but an issue of substance that - for Safeway, that public holiday penalties be capped? You were aware of that?---That is right, yes.
PN1369
And the evidence of the Safeway witnesses is that at no stage during the negotiations, after newsletter number 4 was put out, or at any time, did any union representative use words such as, uncapped. Do you recall that?---No, we wouldn't have used, uncapped.
PN1370
You don't - but did you ever say to the Safeway representatives after newsletter number 4 was put out, well, we are not accepting capping?---Well, we said it. See, it is the other way around, I suppose. We were - we put a position up at 300 per cent, capped, but the company knocked that off. They had rejected our proposal to try and fix this thing up, that we put sometime at the end of August. You then had no negotiations at all with the company until 23 September. Now what you had in fact was some industrial action. We had some industrial action and the company engage din locking out people.
PN1371
All right, well, look that is not what my question was about. I asked you whether any representative of the union, to your knowledge, said to Safeway, we are doing this deal, but it is not capped, it is uncapped?---Well, what we said, and we go back to, you know, when it was mentioned on the 23 September, we put to them that we will accept a proposition of reducing the public holidays form 300 to 250 per cent. Now, given that they weren't capped at that time, we didn't see any necessity to say that what we were putting meant uncapped. They were uncapped at the time. We were reducing the quantum currently uncapped from 300 to 250 per cent. In our view - - -
PN1372
But Mr Bird - - -?---In our view, if the company had meant capped, they would have said it.
**** ERIC GRAHAM BIRD XXN DR SMITH
PN1373
Well, Mr Bird, you knew the company wanted capped public holidays? It wasn't incumbent on you - - -?---It was - - -
PN1374
- - - to tell them, we are putting back this proposal but it is not capped?---Well, what we - well, we believe we did do that. We put back a proposal to them - - -
PN1375
Well, how did you do it?--- - - - that didn't mention the word, capped. We said, we will reduce the public holidays quantum from 300 to 250 in - at a time when those public holidays provisions weren't capped.
PN1376
Well, Mr Bird, I put it to you that your conduct in doing that was not conduct in good faith. You knew full well that Safeway had been talking about capped and wanted capped. That you had an obligation, having regard to good faith negotiations, to tell Mr Burton that your proposition was uncapped?---Well, I believe that was conveyed to Safeways on the day where we reached agreement on the 23rd. The word, capped, wasn't used on that day. We put a proposition to them that we would accept a dropping of the quantum from 300 to 250 per cent. We understood that they knew what we were talking about.
PN1377
Well, the evidence is, on Safeway's point - side - that they did use the word, capped.
PN1378
THE SENIOR DEPUTY PRESIDENT: Well, we have been there, Dr Smith.
PN1379
DR SMITH: Well, even if it wasn't, I put it to you that the union should not now be able to come along and take advantage of the conduct that you engaged in, to gain an advantage for its members?---Well, I can't quite understand what you say is the conduct that we engaged in. We attempted to fix a problem in reaching agreement with this company, as I just said to you. We had had some industrial dispute. There were some protests going on outside various Safeway stores. We - Safeway ultimately agreed to come down and talk to us. Now, they agreed to come down to talk to us, only because - - -
**** ERIC GRAHAM BIRD XXN DR SMITH
PN1380
Mr Bird, if I could stop you there. That is not the question I asked you. Thank you. You are an experienced union official, aren't you, Mr Bird? You have been state secretary of the union for a long period of time?---Well, it is not very long, five years or six years.
PN1381
Well, that is a fairly lengthy period of time. And you have been involved in many negotiations for certified agreements, have you?---I have.
PN1382
Including under the Workplace Relations Act?---Yes.
PN1383
And through that process you have become familiar with the provisions of the Act about certifying agreements, have you?---I have.
PN1384
And you are aware, aren't you, that one of the requirements of the Act for certifying an agreement with the union is that the employer must take reasonable steps to inform the employees about the agreement? You are aware of that?---Yes.
PN1385
And you were aware of that last year?---Yes.
PN1386
Now, you have heard Mr Burton's evidence that you told him that the union would take responsibility for explaining the agreement to the employees? Did you hear that?---I heard him say that, yes.
PN1387
Is that correct?---Well, it is a - it is correct as far as it goes.
PN1388
Okay?---What was said was, that we had had, as I say, an industrial dispute. There was a fair bit of bitterness around.
**** ERIC GRAHAM BIRD XXN DR SMITH
PN1389
That is not the question I asked you, Mr Bird?---Well, if you want me to answer the question, I have to be able to answer it. You say - - -
PN1390
THE SENIOR DEPUTY PRESIDENT: Yes. I will allow Mr Bird to continue?---There was a fair bit of industrial - there was a fair bit of bitterness around. One of the things we raised with the company after that - we had reached agreement on the 23rd, was that some of our members had been told that they would be in strife once they came back to work, some of the managers were going to do this and that to them. What we said to Mr Burton was that, we had better let things calm down. We don't want this to flair up again. We want the thing fixed. Let us put the first newsletter out, to tell our people what had been agreed. That is as far as it went. There was nothing about, you can't go and tell anyone what has been agreed to. It to allow the thing to settle down, let us get the first newsletter out.
PN1391
DR SMITH: I will put this last question to you, and I want you to think very carefully before you answer it. In the circumstances that you knew that Safeway was pressing for the capping of public holiday penalties, and you did a deal with them where they dropped off on their claim to reduce Saturday penalties generally, and in return you agreed to a different arrangement about public holidays, and on your evidence you didn't put to them that this was uncapped, don't you bear some responsibility for us being here today?---No, I don't think I bear any responsibility whatsoever for us being here today.
PN1392
All right, thank you. No further questions.
PN1393
PN1394
MR COONEY: If I may.
**** ERIC GRAHAM BIRD RXN MR COONEY
PN1395
You have been asked about page 6 of these notes that Mr Packard wrote. On page 6 at the top there you say:
PN1396
Re-write of agreement.
PN1397
Could you tell his Honour what the significant of re-writing the agreement was, there you have got there?---Sorry, that is at the top of page?
PN1398
Six - 8, sorry. I can't read properly, 8?---That was to fix up some matters that were agreed had been - you know, there were full stops in the wrong place, or commas in the wrong place, and so on.
PN1399
But what agreement were you talking about?---The 2000 - the existing agreement.
PN1400
Right. Now, could you tell his Honour, there was a 2000 agreement, and can you tell us whether that 2000 agreement had any part in the negotiations, in terms of reference to that agreement, or otherwise?---Ye,s we referred to the 2000 agreement.
PN1401
Well, can you just sort of perhaps face over to his Honour and tell him what part that 2000 agreement played in the whole - - -?---Well - - -
PN1402
THE SENIOR DEPUTY PRESIDENT: Does that arise from cross-examination, Mr Cooney?
**** ERIC GRAHAM BIRD RXN MR COONEY
PN1403
MR COONEY: No, it doesn't. Right, okay. Perhaps then jus tone more question. You have been asked about negotiations. And you have been asked whether you have negotiated over the years. Can you tell us how you see negotiations in terms of packages and whether ne item can be extrapolated. I am not sure whether I am getting the message across here, but can you tell us about the pattern of negotiations over the years as to whether or not - if somebody offered you something, you feel that you can cling on to it thereafter, or otherwise?---Well, I mean, you start - either side will start with a set of proposals. You will meet, you will discuss those proposals as you go along. And the normal turn of events is that during the course of the negotiations, the proposals change. We may put something up. They reject it. It is therefore gone, and then you start again. So there is backwards and forwards during the course of this - of negotiations. You are not bound by anything that may be put that is subsequently rejected. You start again, and try and reach final agreement.
PN1404
Now, I don't think in any sort of nasty fashion, but nevertheless it has been put, about your ethical position. At the end of all this, what agreement was put to you for your consensus?---Well - - -
PN1405
The written agreement, I am talking about?---Well, having reached agreement at 23 September, the company then undertook to change the 2000 agreement to reflect the agreement that had been reached on the 23rd.
PN1406
DR SMITH: Your Honour, I didn't take the witness to this issue in cross-examination.
PN1407
MR COONEY: No, except, your Honour, it is put this way.
PN1408
THE SENIOR DEPUTY PRESIDENT: Yes, I think it does arise.
**** ERIC GRAHAM BIRD RXN MR COONEY
PN1409
MR COONEY: What I am worried about, your Honour, and I don't in any way - - -
PN1410
THE SENIOR DEPUTY PRESIDENT: Mr Bird can continue with his answer, Mr cooney.
PN1411
MR COONEY: Yes, if he can, your Honour. I am not accusing him - but he did raise that question of ethics and perhaps - - -
PN1412
THE SENIOR DEPUTY PRESIDENT: Yes, I will allowance the question.
PN1413
MR COONEY: Thank you?---The company undertook the re-write the agreement or to change the agreement to bring it into line with what had been agreed.
PN1414
THE SENIOR DEPUTY PRESIDENT: That is the 2000 agreement?---The 2000 agreement. There were various drafts of that that were sent. There were a number of issues that they put in that we didn't agree reflected what had been agreed. Eventually after two or three drafts we got to the position that both sides agreed that was a true reflection of the agreement reached on the 23 September. And that is the agreement that was then ratified.
PN1415
Do you want to say anything about whether or not you took advantage of any of those circumstances, in terms of your ethical conduct?---Took advantage of nothing. We reached agreement on the 23rd, and the agreement that we reached was reflected in the document that was ratified in the Commission. We didn't take any advantage of anyone.
PN1416
MR COONEY: That is all.
**** ERIC GRAHAM BIRD RXN MR COONEY
PN1417
PN1418
MR COONEY: Mr Davey. This is the assistant secretary, your Honour. It just goes to the issue of the notes he took, and I call him now. Mr Davey.
PN1419
THE SENIOR DEPUTY PRESIDENT: There was no witness statement of Mr Davey, is there?
PN1420
MR BIRD: Yes.
PN1421
MR COONEY: Your Honour, I will give you - - -
PN1422
THE SENIOR DEPUTY PRESIDENT: Yes, I just don't seem to have ne in my folder, but that doesn't - - -
PN1423
MR COONEY: Your Honour, I would say - - -
PN1424
THE SENIOR DEPUTY PRESIDENT: That doesn't mean I didn't get one at some stage.
PN1425
MR COONEY: It may not have been, your Honour, I know myself - - -
PN1426
PN1427
MR COONEY: Well, Mr Davey, your name, Paul Davey, and you live at 38 Peel Street, Newport?---That is correct.
PN1428
And you are assistant secretary to the Australasian Meat Industry Employees Union?---That is correct.
PN1429
Yes. And you have made a statement in this matter?---I have.
PN1430
PN1431
THE SENIOR DEPUTY PRESIDENT: I might indicate that there is apparently an attachment to the statement. There isn't one in the document you have just handed me, Mr Cooney.
PN1432
MR COONEY: Yes. And your Honour, this is the - well, perhaps, have you got that book? Did we give you the book with his notes in? And your Honour, this is the one where we typed it up.
PN1433
THE SENIOR DEPUTY PRESIDENT: Yes, that has been handed to me. Well, at the moment exhibit U2, is Mr Davey's statement with the handwritten note that is apparently something that is removed from his or photocopied from his book. That is exhibit U2.
PN1434
MR COONEY: But perhaps just - perhaps your Honour, I will tender the book. Is there any problem tendering the book, Mr Davey?---I guess not.
**** PAUL DAVEY XN MR COONEY
PN1435
THE SENIOR DEPUTY PRESIDENT: I will accept as the tender the relevant page in the book.
PN1436
PN1437
PN1438
DR SMITH: Mr Davey, you are aware that the negotiations between the AMIEU and Safeway for the 2002 agreement extended over quite a few months aren't you?---Yes.
PN1439
In fact it was from May right through till September. Is that correct? Last year?---Probably, yes.
PN1440
And would it be fair to say that you hadn't been directly involved in those meetings till, or in those negotiations, till the meeting of 23 September?---The negotiations were always subject to review by the executive of which, obviously, I am a senior member. But as far as being directly involved in the meetings I think that the meeting of the 23rd was the only one I was at.
PN1441
Yes, and you say that at paragraph two of your statement that that was the first of the meetings you had attended?---That is correct. Yes.
PN1442
Now at paragraph three of your statement, you say that:
**** PAUL DAVEY XXN MR DAVEY
PN1443
The final position reached between the union and Woolworths about payment on public holidays was that the loading to be paid on public holidays was to be reduced from 300 per cent to 250 percent.
PN1444
And then you go on to say:
PN1445
There was to be no other changes.
PN1446
Is that correct? Have you got the statement in front of you?---Yes, I have got it in my bag here.
PN1447
I wouldn't want to misrepresent you?---Yes, that is correct.
PN1448
Then at paragraph four you say:
PN1449
I took some notes at this meeting and they reflect what I have written above.
PN1450
Can you see that?---Yes.
PN1451
Now those notes don't reflect what you wrote in paragraph three, do they?---Well, I believe they do.
PN1452
Well, show me where in the notes it says, there was to be no other changes?---In the - - -
PN1453
In your notes for me?---Yes.
**** PAUL DAVEY XXN MR DAVEY
PN1454
THE SENIOR DEPUTY PRESIDENT: Well, I will give Mr Davey back exhibit U3.
PN1455
DR SMITH: I think he has the typed up version. Do you, Mr Davey?---Yes, I do.
PN1456
PN1457
DR SMITH: Yes?---In two areas where we say no change to the Saturday penalty and then when the company returned "drop off Saturday penalty".
PN1458
DR SMITH: But it doesn't say that there would be no other changes, generally, does it?---Well, it says no changes. It doesn't say no other changes. It says, no change.
PN1459
But that is a reference to the Saturday penalty, isn't it?---It could be.
PN1460
There is no reference to note change or no other changes when the company returned with its offer at the bottom, is there?---Well, it goes without saying there would be no other changes.
PN1461
So you are implying that it doesn't - it is not actually in the notes. Is that correct?---It is not in the notes. No.
**** PAUL DAVEY XXN MR DAVEY
PN1462
Now the words, 250 per cent public hols, as is set out at the bottom under the heading, company return offer, do you see that?---Yes.
PN1463
Now that could also mean, if you wanted to read words into it, that that is all employees were going to get for working on public holidays, couldn't it?---No, but I knew that that is not what it meant.
PN1464
No, but I am putting to you that is what it could mean. It is capable of that meaning?---Well, not when immediately after it, it has got drop off Saturday penalty.
PN1465
But Saturday penalties was a different issue, wasn't it?---No, the issue was that there is, in addition to the payment for a public holiday, there is a penalty rate that is paid on the Saturday and the Sunday of 75 per cent on Saturday, for memory, and 100 per cent on the Sunday. And we retained those penalty rates. We agreed to the 250 per cent to be paid upon the public holiday.
PN1466
No, but the company's proposal, in the offer at the top of your notes, was a reduction in Saturday penalties generally. That is not about public holidays. It is about a reduction in Saturday public holidays, generally, isn't it. For new starters?---Yes. But that is a different issue. But they dropped off that. They gave that away in the negotiations.
PN1467
Yes, that is right. They dropped off on that but they didn't drop off on their demand for a capping of public holiday penalties did they?---Yes, they did.
PN1468
When did they drop off on that?---When they came back. On the final occasion when they came back it was made - I don't know if it was an answer to a question or whether they just made a statement. It wasn't in response to a question but it was made quite clear that they were dropping off their position of wanting to get rid of those 70 per cent and 100 per cent on the Sunday.
**** PAUL DAVEY XXN MR DAVEY
PN1469
On public holidays too?---Yes.
PN1470
They said that, did they?---Well, I don't know whether it was, it was certainly, whether it was put to them and they said yes in answer to a question or whether they came back and volunteered it. I am not clear in my mind but what I am clear about is that they dropped off it because we were quite elated about that at the time.
PN1471
And that was the dropping off of the claim for a reduction in Saturday penalties, generally, wasn't it?---No. No. The dropping off of the 75 per cent, the dropping off of their attempt to remove the 75 per cent and the 100 percent.
PN1472
On public holidays?---Yes.
PN1473
You say they actually came back and said that, do you?---I answered that question before. I said I am not sure whether they actually volunteered it or whether they said, yes, in answer to a question from either Lawrie or Graham.
PN1474
You are not really clear about it at all, are you?---I am clear as to what the net result was. I am not clear as to the exact words that were used.
PN1475
Okay. So you are only clear about what, in your mind, was the net result?---Yes.
PN1476
Now if I take you to the statement of Lawrie Burley, at paragraph 28. You will need to be taken to that. Now he says there, he refers to changes that needed to be made and says that a memo prepared by Alec Burton was used as the basis for discussion and attachment J to his statement. Do you see that?---Attachment J or paragraph 28?
**** PAUL DAVEY XXN MR DAVEY
PN1477
Well, look at both?---I have got paragraph 28 but I don't have attachment J.
PN1478
Now do you see points D and E in attachment J?---Did you want me to read through 28 first?
PN1479
Well, perhaps ..... . Just tell me when you are ready? Now if you could look at points D and E, they relate to shift allowances and changes to spread of hours. Do you see that?---Yes.
PN1480
And they were part of the deal?---I think so. Yes.
PN1481
Now have another look at your notes at the meeting. Where are they mentioned?---Well, they are not.
PN1482
So your statement that there were no other changes is incorrect, isn't it, because there were other changes?---Well, perhaps it should have been no other significant changes.
PN1483
You said no other changes?---Well, I have never, never maintained that the notes were a verbatim account of what took place.
PN1484
There were pretty complete, weren't they?---There were over the critical issues about which we didn't have agreement about.
PN1485
They are pretty much incomplete aren't they?---Well, I say they are a reflection of the critical agreements that were in dispute between the company and ourselves. I mean there were other issues such as the ones you have just mentioned that we reached agreement about and obviously there wasn't any great necessity to record that because everyone knew we were au fait with that.
**** PAUL DAVEY XXN MR DAVEY
PN1486
Well, if I put it to you that Mr Burton, who was at the meeting and Mr Packer, who was at the meeting on 23 September, both say that the final position agreed was that the public holiday penalty was to be capped, what would you say about that?---That expression was never ever used at the meeting I was at. And that was never ever put to us.
PN1487
And you are basing that on your recollection, are you?---Yes.
PN1488
I have no further questions.
PN1489
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Cooney.
PN1490
MR COONEY: I have no re-examination, sir.
PN1491
PN1492
PN1493
MR COONEY: Mr Brittain, I had James Crosby Brittain. You haven't got that in your statement, but, do you live at 17 Lears Street, Timboon?---Lay Street.
PN1494
Lay Street, sorry. And a union organiser?---That is right.
PN1495
And have you made a statement in this matter. Perhaps have a look at it?---I have.
PN1496
And is that statement 26 June 2003 which you have signed? And what do you say about the accuracy of that statement?---The statements are true and correct.
PN1497
PN1498
PN1499
DR SMITH: Thank you. Mr Brittain, you are an organiser with the AMIEU. Is that correct?---That is correct.
PN1500
And you are aware, are you, that there was a meeting between officials of the union and Safeway about a proposed agreement on 23 September last year?---I am.
**** JAMES CROSBY BRITTAIN XXN DR SMITH
PN1501
Did you attend that meeting?---No, I didn't.
PN1502
So other than what you have been told by the people, you don't know what was said at the meeting, do you?---That is correct.
PN1503
Okay. Now after the meeting, and according to your statement, Lawrie Burley sent you a copy of proposals that had been agreed at the meeting?---That is right.
PN1504
And you have attached those to your statement. Is that true?---That is right.
PN1505
Now when you explained the terms of the agreement to employees as you describe in your statement, you used that attachment and its contents to explain the agreement to them, didn't you?---That is right.
PN1506
Thank you. I have no further questions.
PN1507
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Cooney.
PN1508
MR COONEY: I have no re-examination.
PN1509
PN1510
THE SENIOR DEPUTY PRESIDENT: You call the witnesses in whatever order you want to call them Mr Cooney.
PN1511
PN1512
MR COONEY: Mr Burley, is your full name Lawrence Joseph Burley?---That is correct.
PN1513
And you live at 11 Brenda Court, Croydon?---Yes.
PN1514
And are you a union organiser?---Yes.
PN1515
And have you made a statement in this matter that you have signed, but I don't think it is dated?---Yes, I have.
PN1516
And perhaps if, do you have a copy of that?---Yes, I have.
PN1517
Your Honour, you have got a copy there. All right. That is a copy of your statement?---That is right.
PN1518
And what do you say about that statement. Is it - - - ?---It is a record of the events.
PN1519
Yes, I know, but do you say it is true and correct?---Yes.
PN1520
PN1521
**** LAWRENCE JOSEPH BURLEY XXN DR SMITH
PN1522
DR SMITH: Mr Burley, you are an organiser with the AMEIU?---That is right.
PN1523
Correct. And you have known Mr Burton, who is a witness in these proceedings, for a long time, haven't you?---25, 27 years I suppose.
PN1524
In fact you worked at a meat department when he was manager of the store, didn't you?---Eastlands.
PN1525
Yes. Are you aware that his evidence in these proceedings is that at a meeting on 23 September last year, between officials of the union that you were at, is that the parties agreed to change the enterprise agreement to cap public holiday penalties at 250 per cent for all purposes?
PN1526
MR COONEY: Your Honour, can I just object. I think - I don't mind it being put that that was his suggestion but I don't think that that is the evidence of what he actually said. I think the closest he came was to say it is highly probably that he mentioned the word capped but before that he said he hadn't mentioned that so I don't mind you putting it that that is what he thought but I do object if you are saying that is what he actually said.
PN1527
THE SENIOR DEPUTY PRESIDENT: Yes. Well, I think that is a well founded objection, Dr Smith.
PN1528
DR SMITH: Well, that is - - -
PN1529
THE SENIOR DEPUTY PRESIDENT: The effect of what Mr Burton said is - - -
PN1530
DR SMITH: He believes that that was the agreement. You are aware that that is his evidence in these proceedings?---Yes.
**** LAWRENCE JOSEPH BURLEY XXN DR SMITH
PN1531
And you are aware that Mr Packer was at the meeting as well?---Yes.
PN1532
And that he took some notes of the meeting?---Yes.
PN1533
Have you got any reason to believe Mr Packer wouldn't have taken accurate notes?---It was a heated meeting. There were a few breaks. Anything could have happened.
PN1534
But you are not aware of any reason why he wouldn't have tried as accurately as possible to record the meeting?---Well, without being sinister. I am saying that he has written them after the event. No, not relevant.
PN1535
Yes, that is the answer. Now if I can have someone provide you with a copy of those notes?---I have one.
PN1536
The typed up notes.
PN1537
THE SENIOR DEPUTY PRESIDENT: Exhibit U5.
PN1538
DR SMITH: Yes, U5.
PN1539
MR COONEY: These are mine. They are a bit - wait until I just get them in order. Take mine. Six, seven, eight. Some of mine. I have put some, just scribbling on them. That is all right.
PN1540
DR SMITH: I think we gave you a clean copy before.
PN1541
THE SENIOR DEPUTY PRESIDENT: These exchanges when they appear on the transcript are going to look very odd and it certainly won't help me with writing a decision.
**** LAWRENCE JOSEPH BURLEY XXN DR SMITH
PN1542
DR SMITH: If I can take you to page six of the notes, Mr Burley?---Yes.
PN1543
Can you see the letters AB, after the heading, 15 minute break, on page six, halfway down it says 15 minute break?---Yes. There it is. Yes.
PN1544
And it says AB?---Yes.
PN1545
Which is a reference to Mr Burton?---Yes.
PN1546
Put back. And then three years, three and a half, three and a half, three and a half. You see that?---Mm.
PN1547
Below that, public holidays at 250 per cent capped?---Yes.
PN1548
Now in the context of the negotiations for this agreement, what do you think the word capped meant?---Earlier on it was to do with the public holidays being capped at 250 but that had all disappeared. Can I explain to you how the meetings went? It started off where they arrived at - Burton was as arrogant as all hell. We negotiated for a number of weeks, reasonably well. Our committee were being flexible. Burton then got up one day and said that he had found a mistake in the agreement and if we didn't negotiate properly they would give up the Saturday. He would take it himself. At that stage our committee rose to their feet and had a go at him. He had to leave the room because it got so exciting and from then on negotiations went down hill. Everything that was being spoken about prior to that with a bit of flexibility disappeared. It was all gone.
PN1549
I asked you a fairly simple question. In the context of these negotiations and public holiday penalties, what do you think the word capped meant?---In the beginning it was top rate. That was it.
**** LAWRENCE JOSEPH BURLEY XXN DR SMITH
PN1550
Okay. No more. That is all you got on the public holiday?---That is all they wanted.
PN1551
Okay. Now I put it to you that everyone in the room at that meeting knew what the word capped meant?---Well, we knew it.
PN1552
In that negotiation on 23 September - - - ?---Well, it wasn't mentioned. It wasn't brought up. So, we all know lots of things but the word capped wasn't being used.
PN1553
Well, if it had been used, everyone knew what it meant?---If somebody said it we would have understood what they meant. Yes.
PN1554
And you see that it is in these, recorded by Mr Packer, in these notes?---Yes.
PN1555
Now if I can take you to union newsletters given to members during the negotiations. You have seen those, haven't you?---Mm.
PN1556
I can take you to newsletter number four which is, you will need to be shown it. It is in attachment B to Mr Burton's statement.
PN1557
THE SENIOR DEPUTY PRESIDENT: Which newsletter Dr Smith?
PN1558
DR SMITH: If you look at - - -
PN1559
THE SENIOR DEPUTY PRESIDENT: Is it number four, is it?
PN1560
DR SMITH: Yes, number four. Look at page two?---Yes.
**** LAWRENCE JOSEPH BURLEY XXN DR SMITH
PN1561
And under the heading, union proposal, go down to item three. See that. It says:
PN1562
Public holidays capped at 300 per cent.
PN1563
?---Item four. Yes.
PN1564
Yes, you are right. Item four. Mr Burley can you point to or provide the Commission with any evidence that you are aware of that after that newsletter went out to members, the union subsequently rejected the concept of capping of public holiday penalties?---As I said prior, that after we had that run in with Burton - - -
PN1565
This is after this newsletter. Look at the date of the newsletter?---Yes.
PN1566
This is August. Well, into August?---This talks about 300 per cent. There were some other issues.
PN1567
Yes, I asked you - - - ?---We offered a number of things.
PN1568
I will put the question again?---Okay.
PN1569
Can you point to any evidence that you are aware of that after that newsletter went out, the union at any time rejected the concept of capping of public holiday penalties?---Well, in my talking to people. I told them.
PN1570
Who did you tell?---Safeway employees. Safeway managers.
**** LAWRENCE JOSEPH BURLEY XXN DR SMITH
PN1571
No, I am talking about the Safeway negotiators?---Well, I played second fiddle to this. I was there part of the meeting. I wasn't at the major part. I was there whispering advice to my boss.
PN1572
THE SENIOR DEPUTY PRESIDENT: No, you are being asked, what, if any evidence, you can point to that can be something that Mr Bird said, or something that was written. It doesn't have to be something that you said?---Well, just that our negotiating committee shied away from the word capped and they wouldn't agree to it.
PN1573
DR SMITH: But did they tell Safeway?---Not directly as far as I know.
PN1574
Thank you. Now if we can have a look at newsletter number five. I will take that back?---There were two number fives. Which one do you want?
PN1575
I will withdraw that. If I can take you to another question. If I take you to paragraph 31, 33 and 35 of your statement?---31. Yes.
PN1576
Now in those paragraphs you say that you used Mr Burton's memorandum summarising the agreement - - - ?---I use all Safeway's as paperwork.
PN1577
- - - and gave it to Mr Brittain - how do you pronounce that Psingh?---Psingh.
PN1578
Psingh and Pat Pearce?---Yes.
PN1579
To use your words:
PN1580
To enable them to tell their meetings of the agreement.
**** LAWRENCE JOSEPH BURLEY XXN DR SMITH
PN1581
That is correct, is it?---Mm.
PN1582
So that document reflects the agreement, you believe, that is Mr Burton's memorandum reflects the agreement?---Yes.
PN1583
So if on a proper reading of that document, in the context of the negotiations, it was found that it meant public holidays were to be capped at 250 per cent, the organisers who you refer to, either mistakenly or deliberately misrepresented what was agreed, haven't they?---No. It went from 300 to 250.
PN1584
No, but I am saying, if on a proper reading of that document, in the context of the negotiations and the newsletters, it was found to mean 250 per cent capped, then your organisers have been mistaken or otherwise misrepresented what was agreed?---No, no, because the attack on the Saturday and Sunday penalty rates by this date had gone. They weren't - - -
PN1585
That is not my question?---But that is what it was, there was no attack on the Saturday and Sunday penalty rates. It had finished by then.
PN1586
Well, I am saying if it was found by this Commission that those words meant 250 per cent capped, that that was the agreement, then your organisers have misrepresented what was agreed?---Well, the Commission - I don't know how the Commission can find that.
PN1587
It is a yes or no?---Well, no, we haven't misrepresented, that is what it was, it was 250. It went from 300 to 250.
PN1588
You are saying that because you say it was 250, but I am saying that if in fact it was found to mean something else they have misrepresented it, haven't they?---No, because it doesn't mean anything else. I just - I can't, you know - - -
**** LAWRENCE JOSEPH BURLEY XXN DR SMITH
PN1589
I won't take it any further.
PN1590
THE SENIOR DEPUTY PRESIDENT: It is probably a matter more for submissions, Dr Smith.
PN1591
DR SMITH: It probably is. Now, Mr Burley, at the meeting on 23 September last year when the deal was finally done at the end of the meeting, you recall Mr Bird saying to Mr Burton that the Union would take on the job of explaining the agreement to employees?---We would take on the job of formulating the voting paper, explain it and send the voting slips out, yes.
PN1592
So you would tackle the job of telling the employees what the agreement was all about. And are you aware of section l(3) of the Workplace Relations Act?---I am now, yes.
PN1593
And what does that say?---It says the employer has a responsibility to inform their workers. The Company did do a newsletter to inform their workers after the 23rd, so we informed them, they informed them.
PN1594
That newsletter, the company newsletter, you knew wasn't intended to fully inform employees about all the terms of the agreement, you know that?---No, no. I took that as - I looked at the bottom part of that, took the bottom part as the major part, not the pay rise. It just said there were - people were being harassed who had been on strike, they had been harassed. It was sort of a kiss and make up letter.
PN1595
Perhaps we should have a look at that last Safeway newsletter. It is, I think, in attachment B to - maybe it is actually attachment A to Mr Bird's statement. Sorry, number 8, attachment A. That doesn't set out everything that was agreed, does it?---No. It talks about the main things which was the pay rise. Well, it was a bit hard for the Company to say much else because they had given us this huge list and they had boasted amongst themselves and amongst their store managers how they were going to get these things and they didn't get anything.
**** LAWRENCE JOSEPH BURLEY XXN DR SMITH
PN1596
Well, what I am putting to you is a fairly simple proposition, that the Company put that out because the Union had agreed to put out information which explained the agreement to the employees?---To formulate the vote, yes.
PN1597
Yes, that is right. So the Union was a party to an arrangement where it took on that responsibility?---I wouldn't say we took it on. In the past we have always, in all our agreements, we formulate the voting paper.
PN1598
The practice was the same as had previously occurred?---Mm.
PN1599
So you were aware that by doing this you were helping or being a party to the Company abdicating its responsibility under the Act, weren't you?---No, as I said a minute ago, I wasn't aware. I have recently become aware of actually how it works.
PN1600
Thank you. I have no further questions.
PN1601
PN1602
MR COONEY: Perhaps just one question about the Safeway Meat Enterprise Agreement Update Number 8, what happens, do you know, does Woolworths or Safeway leave these in the shops for their members - for their employees or do they send them out or what have you?---There are a lot of them still in the meat departments on the walls. Their instructions were, at the beginning of this, they received a large number of these. They were handed out by the meat manager/store manager who would talk on it, explain the company's slant, and then they were stuck on the wall and the instructions were, with the covering fax sheet, they were to be put somewhere where the customers couldn't see them because there were a lot of them still stuck on the walls.
**** LAWRENCE JOSEPH BURLEY RXN MR COONEY
PN1603
Thanks.
PN1604
PN1605
PN1606
MR COONEY: Mr Ware, what is your full name? Is it Michael Ware?---It is Michael John Ware
PN1607
I wonder if you - you are sort of facing me. I don't know whether you could face over to his Honour so he can see how things go. And you live at 31 Cleveland Road, Ashwood?---That is correct.
PN1608
And are you a butcher?---I am a butcher with Ashwood Safeway.
PN1609
All right. And have you made a statement in this matter?---Yes, I have.
PN1610
Just have a look at that. Is that in fact your statement?---That is my statement.
PN1611
Perhaps if I could just change it back and give you that one. And is that your statement too?---Yes.
PN1612
And is that true and correct?---Yes, it is.
PN1613
PN1614
PN1615
DR SMITH: So, Mr Ware, you are an employee of Safeway at the Ashwood Store, is that correct?---Yes.
**** MICHAEL WARE XXN DR SMITH
PN1616
Now, in your statement in paragraph 6, you refer to the fact that you were given a copy of the proposals put forward by Woolworths. Is that correct?---That is correct.
PN1617
And you have attached that document to your statement?---It was on the - my original statement, yes. It is not on this one.
PN1618
Perhaps the attachment should be - wait on - - -
PN1619
THE SENIOR DEPUTY PRESIDENT: Yes, I don't have the attachment.
PN1620
MR COONEY: Your Honour, that is the statement, call it the Burton statement.
PN1621
THE SENIOR DEPUTY PRESIDENT: Should that form part of exhibit U7? It should, shouldn't it?
PN1622
MR COONEY: Yes, your Honour, that is the attachment.
PN1623
THE SENIOR DEPUTY PRESIDENT: Yes, well, I will attach that to exhibit U7. I know it is the Burton statement but for the file I think the exhibit should be complete.
PN1624
MR COONEY: Yes, your Honour.
PN1625
DR SMITH: Now, that attachment, is that - is it your understanding that the attachment is basically the agreement that was reached between Safeway and the Union?---Pretty much so, yes.
**** MICHAEL WARE XXN DR SMITH
PN1626
And in paragraph 7 of your statement, you refer to a meeting on 24 September at which it was agreed to recommend to members proposals put forward by Woolworths. Do you see that?---Yes, I see that.
PN1627
Is that a reference to the proposals in the document which is the attachment to your statement?---Yes.
PN1628
At the meeting on 24 September that you attended, the agreement which was recommended to members was indeed that document, I just want to confirm that?---Pretty much so.
PN1629
Well, pretty much or what - it was that?---Yes.
PN1630
And that document formed the basis of your discussions with members who you refer to in paragraph 8 of your statement?---Yes.
PN1631
Now, employees were also asked to vote for the agreement on the basis of another document, weren't they, that is the AMIU newsletter number 5? Have you seen that?---I saw it.
PN1632
Perhaps I could have it shown to you - if I can find it.
PN1633
THE SENIOR DEPUTY PRESIDENT: What are you showing the witness?
PN1634
DR SMITH: Newsletter number 5, your Honour, the Union newsletter. Perhaps if you would like just to read it for a minute. Now, you see at the bottom of the second page, on the back of it, it says:
PN1635
Please indicate whether or not you are prepared to accept this proposal by ticking the appropriate box on the enclosed ballot paper and returning it to the union office in the envelope provided by Friday, 18 October 2002.
**** MICHAEL WARE XXN DR SMITH
PN1636
Do you seem that?---Yes, I do.
PN1637
So when employees were informed about the agreement and what it was the information they had before them was that newsletter with the proposal set out in the box, together with Mr Burton's summary. That is what they had?---That is what they had.
PN1638
Now, if you turn to the top of page 2 of the newsletter, so the top of page 2 of newsletter number 2, it says under the heading - - -
PN1639
MR COONEY: Sorry, number 2 or number 5?
PN1640
DR SMITH: That is number 5, my apologies. It says under the heading "Public Holidays" 250 per cent for public holidays to be worked on a voluntary basis. Do you see that ?---Yes, I do.
PN1641
Now, it doesn't say words to the effect the current 300 per cent public holiday penalty is to be reduced to 250 per cent, does it? It doesn't actually say that?---It doesn't say it there, no.
PN1642
No. It says 250 per cent for public holidays?---Well, that is what it says.
PN1643
Yes. So the second sentence in paragraph 8 of your statement, which uses the word "reduce" isn't a word that is in that material, is it? It is not in Mr Burton's attachment?---No.
PN1644
Nor is it in what was given to the members in newsletter number 5?---Well, I can't see it.
**** MICHAEL WARE XXN DR SMITH
PN1645
No. Thank you, Mr Ware. No further questions.
PN1646
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Cooney?
PN1647
MR COONEY: I have no re-examination, your Honour.
PN1648
PN1649
PN1650
MR COONEY: Mr Stevens, can you just - instead of facing me, I know it is a bit hard, but could you face over to his Honour rather than towards me if that is all right. Is your full name Edward Stevens?---Yes, it is.
PN1651
And are you a butcher who lives at 3 Heather Avenue, Ashwood?---I am, yes.
PN1652
And did you make a statement in this matter and did you sign it?---Yes, I did.
PN1653
And have you got a copy of it there?---Yes, that is it.
PN1654
Just check it. You know, don't - does that look - is that it?---Yes, that is it.
PN1655
And is that true and correct?---That is true and correct.
PN1656
PN1657
PN1658
DR SMITH: Yes, just a couple of quick questions, Mr Stevens. You are employed at the Mount Waverley store. That is right, isn't it?--Yes, I am the 2IC there.
**** EDWARD STEVENS XXN DR SMITH
PN1659
Yes. Now, in paragraphs 9, 10 and 11 of your statement you say that you voted for an agreement on the understanding that there was to be a 50 per cent reduction in the loading for public holidays, that you were to retain the 75 per cent loading for the Saturday?---Correct.
PN1660
And you say that you relied on Mr - is it Ware or how do you pronounce it?---Ware.
PN1661
Ware - in coming to that understanding?---Well, he told me.
PN1662
So that is what you relied on?---Well, because he was on the committee.
PN1663
Yes?---I found out through him because he had to come up and work at Mount Waverley.
PN1664
Yes. So in forming that conclusion you relied on what he told you?---Well, I also got the newsletters.
PN1665
Yes, okay, and the Union newsletters?---Yes.
PN1666
Thank you. I have no further questions.
PN1667
THE SENIOR DEPUTY PRESIDENT: Yes, thank you.
PN1668
MR COONEY: Thank you, I have no re-examinations.
PN1669
PN1670
MR COONEY: I call Duncan McKay.
PN1671
PN1672
MR COONEY: I will dodge the issue, your Honour.
PN1673
Could you tell us your full name please?---Yes, Duncan McKay.
PN1674
Can you just face over to - - -?---Yes, Duncan McKay.
PN1675
And you live at 3/24 Tennyson Street, Elwood?---That is right.
PN1676
And are you a butcher that works at Safeways Prahran?---That is correct.
PN1677
All right. And did you make a statement in this matter?---Yes.
PN1678
And is that it there?---Yes.
PN1679
And what do you say, is that true and correct?---Yes.
PN1680
PN1681
PN1682
DR SMITH: It is Mr McKay, is that how you pronounce it?---That is right, McKay.
**** DUNCAN McKAY XXN DR SMITH
PN1683
McKay?---Yes.
PN1684
With the great twang?---Yes, that is right.
PN1685
Now, in paragraph 7 of your statement you say that it was your understanding of what you voted for insofar as penalty rates were concerned is that you were to get 250 per cent rather than 300 per cent for public holidays and that an additional - you would get an additional 75 per cent if that public holiday fell on a Saturday. That is correct, isn't it?---Yes, no change to what we have before, that is right.
PN1686
And that is what you understood from having read the final AMIU newsletter?---Yes, we had been informed by the Union and the Union delegate, Mick Ware, had been in contact with most of the stores in his area, that is right.
PN1687
So a combination of Mr Ware and the newsletter is what led you, you say, to believe that?---That is right.
PN1688
Can I ask the witness be shown newsletter number 5. Now, if you look at the last page, yes, it is on the second page, it says under the heading public holidays:
PN1689
250 per cent for public holidays to be worked on a voluntary basis.
PN1690
Do you see that?---Mm.
PN1691
It doesn't use the word "reduce" does it?---I was under the impression - - -
PN1692
I was just asking you to say yes or no?---No, it doesn't, no.
**** DUNCAN McKAY XXN DR SMITH
PN1693
No. Now, you were aware that in earlier negotiations Safeway had asked for a capping of public holidays, were you?---No.
PN1694
You weren't aware of that?---No.
PN1695
You weren't aware that the Union had agreed - - - ?---Never been mentioned, no.
PN1696
- - - at one stage to capping public holidays?---No, no.
PN1697
I wonder if the witness could be shown newsletter number 4. Mr McKay, have you seen newsletter number 4 before?---No.
PN1698
So you don't receive all of the Union newsletters?---No.
PN1699
You are a member of the Union, paid up?---That is right.
PN1700
Okay. I won't ask any more questions?---Thank you.
PN1701
I have no further questions.
PN1702
MR COONEY: I have no re-examination, your Honour.
PN1703
PN1704
PN1705
MR COONEY: What is your full name? Could you just tell - just face over there. I am sorry but could you - - - ?---Yes, that is okay. Kathleen Elizabeth Haddock.
PN1706
Right. And do you live at 22 Richardson Street, Narre Warren?---Yes.
PN1707
And are you a meat packer and wrapper?---Yes.
PN1708
And have you made a statement in these proceedings?---Yes.
PN1709
Could you just have a look at this? Is that the statement?---Yes, it is.
PN1710
And is that true and correct?---Yes.
PN1711
PN1712
PN1713
DR SMITH: Ms Haddock, you are an employee of Safeway at the Fountain Gate Store. Is that correct?---Yes.
PN1714
Now, can I take you to paragraph 12 of your statement. Can you see that?---Yes.
**** KATHLEEN ELIZABETH HADDOCK XXN DR SMITH
PN1715
You say that your recollection is the only time the negotiators for Woolworths pressed for a capping of weekend penalty rates and public holidays was at the first meeting you attended and that Union representatives resisted that proposal?---That is right.
PN1716
Was that meeting very early on in the negotiations?---Yes.
PN1717
About which month? They started in May, didn't they?---I - well, it would have been in the first couple of meetings, either the first or second meeting that they did all this.
PN1718
Right. That would have been before August, wouldn't it?---I would say so, yes.
PN1719
Now, if I could ask if the witness could be shown newsletter number 4. I will just let you take your time to have a look at that. That is a newsletter that was put out by the Union towards the end of the negotiations on 21 August?---Yes.
PN1720
Can I take you to page 2 under the heading "Union Proposal"?---Yes.
PN1721
Paragraph 4 in the box, can you see that?---Yes.
PN1722
It says:
PN1723
Public holidays capped at 300 per cent.
PN1724
Can you see that?---Yes.
PN1725
Now, that was a Union proposal, wasn't it?---That is right, yes.
**** KATHLEEN ELIZABETH HADDOCK XXN DR SMITH
PN1726
Well, how does that square with your statement that Union representatives resisted capping of public holidays?---No, what it was at the beginning when Safeway put the proposal they had it capped and then after that we didn't talk about it for the next couple of meetings.
PN1727
But subsequently - - - ?---It was just dismissed.
PN1728
But subsequently the Union must have talked about it because they put a proposal - - - ?---Well, that was, yes, in the later meetings they did, that they had talked about it and they wanted it capped - they offered to cap it at 300 not at 250 and Safeway didn't want that so we just dismissed it altogether.
PN1729
Right. And then in the end the Union did a deal with the Company where it agreed to cap public holidays at 250 per cent in return for Safeway dropping its claims on public holiday penalties, isn't it?---Sorry, I - - -
PN1730
Well, in the end there was agreement to cap public holidays at 250 per cent in return for Safeway giving up its claim to reduce - - - ?---They didn't agree to cap it.
PN1731
- - - Saturday penalties?---They didn't agree to cap it.
PN1732
When did they did not agree to that?---Well, it would have been at the - at the very - well, towards the end of the meetings.
PN1733
Okay. You weren't at the last meeting?---At the very last meeting because Safeway didn't want us there.
**** KATHLEEN ELIZABETH HADDOCK XXN DR SMITH
PN1734
No. So you don't know, do you?---Well, I don't know what was said on that meeting but I know on the previous meetings when we had everything down and we went through - and we spoke about every item as we went through, some things were dismissed on the day, other things were carried over and discussed and all of that but when it got to the penalty rates they didn't cap it at 250. They said - all they said on the public holidays was 250, that was it. No capping, no nothing.
PN1735
They said no - they did?---It was public holidays was 250 per cent and that is what we agreed on and that is what we put to our members to vote on because a public holiday isn't just Monday to Friday, it is still on a Saturday and Sunday and that is when the penalties come in. And I mean we were having industrial action to stop - well, to keep our penalties.
PN1736
All right. But at the last meeting which you didn't attend you don't - - - ?---That is right.
PN1737
You don't know what was said?---No.
PN1738
No?---Because we weren't allowed to be there.
PN1739
Okay, thank you. I have no further questions.
PN1740
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Cooney?
PN1741
MR COONEY: I have no re-examination, your Honour. That is our case.
PN1742
PN1743
MR COONEY: Well, that is evidence.
PN1744
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1745
MR COONEY: I don't know how you want to - - -
PN1746
THE SENIOR DEPUTY PRESIDENT: I thought that given that it is close to the luncheon adjournment it might be sensible to adjourn a bit earlier and resume a bit earlier. How long do the parties think their submissions will take?
PN1747
MR COONEY: Well, your Honour, I don't think I will be long. What I will be saying is pretty much that you should be looking at the words in the agreement, that I suppose in anticipation of what Dr Smith says, I will say, look there is these previous - - -
PN1748
THE SENIOR DEPUTY PRESIDENT: Just give an idea of how long you are going to be?
PN1749
MR COONEY: Well, your Honour, I was just trying to think aloud. You know, I wouldn't have thought I would go for more than about half an hour or so.
PN1750
THE SENIOR DEPUTY PRESIDENT: Yes. Dr Smith?
PN1751
DR SMITH: Yes, no more than half an hour.
PN1752
THE SENIOR DEPUTY PRESIDENT: Well, we can take the normal sort of luncheon adjournment. We will adjourn until a quarter to 2.
LUNCHEON ADJOURNMENT [12.36pm]
RESUMED [1.48pm]
PN1753
THE SENIOR DEPUTY PRESIDENT: Yes, Dr Smith.
PN1754
DR SMITH: Thank you, your Honour. I am going to make my final submissions very brief. This is because I think at the end of the day this is a fairly simple case, and also because some of the submissions that we rely on are detailed in our written contentions in reply. I anticipate that my learned friend will spend a lot of time taking you through some of the cases, but at the end of the day I don't believe that many authorities are of great assistance in this case either way. This is a case which turns primarily on the facts and on discretion.
PN1755
You have before you two separate applications. One is for an arbitration under section 170LW and the other is to remove ambiguity and uncertainty under 170MD(6) of the Act. In relation to the application under section 170LW we say that there clearly is jurisdiction for the Commission. There is clearly a dispute arising over the application of the agreement. It is not a case simply of a dispute between the union and the company. Even, we say, if that was what it is, it is still a dispute between the union as representative of employees and the employer within the meaning of the disputes procedure in the agreement.
PN1756
To take the approach that has been put in the union's written contentions, to try and say that it is just a dispute between the union and the company, and that, therefore, it is outside the disputes procedure, is to artificially narrow the true nature of the dispute and in fact if it was found to be such a dispute and outside power, it would be - it would rob both the disputes procedure and the provision in the Act of any real meaning. I mean I take, for example, a case where an employee might be in dispute with the employer, but wished to only have the union take up that matter confidentially between the union and the company, would that then be outside the disputes procedure? I would suggest clearly not.
PN1757
At the end of the day, including the evidence of Mr Hibberd, that he is aware that employees are dissatisfied about the way in which the employer is applying the public holiday penalty provisions in the Act, and that is why we are here. We rely, your Honour, primarily in terms of statement of principle on the statement of the Full Bench in the Big W decision in which your Honour was a member, where at paragraph 23 the Bench said:
PN1758
That although the referral of a dispute over the application of the agreement is narrower than the referral ...(reads)... during the operation of the agreement.
PN1759
So, your Honour, we say that having found jurisdiction your Honour then has a very wide discretion to resolve this dispute by arbitration. Your Honour is not to be confined merely to interpreting the agreement and whilst the principles in the High Court decision in - I think it is pronounced Cadalfa - which is relied on in the union contentions - whilst they may be of some assistance there are other considerations which should guide the Commission in this case. We rely particularly on the Full Bench decision in Tenix Defence Systems, which is print PR917548, and at paragraph 54 the Full Bench said that"
PN1760
In a case such as this the Commission should have primary regard to the mutual intention of the parties at the time the agreement was made.
PN1761
Now, to the extent that that - - -
PN1762
THE SENIOR DEPUTY PRESIDENT: There may not be mutual intentions thought, might there, Dr Smith? One of the possibilities in this case is that there was no consensus arrived at between the parties.
PN1763
DR SMITH: It is a conclusion which may well be open to the Commission.
PN1764
THE SENIOR DEPUTY PRESIDENT: In which case Tenix wouldn't assist, would it?
PN1765
DR SMITH: No, no. I am not sure what would assist the Commission in that circumstance.
PN1766
THE SENIOR DEPUTY PRESIDENT: No. Well, while I have got you interrupted, it is something that was exercising my mind. What do you submit I should do if I find that the union believed that the agreement was that there would be a reduction from 300 per cent to 250 per cent simpliciter, and that was the agreement, and the company for its part believed that it was to be 250 per cent capped.
PN1767
DR SMITH: Yes.
PN1768
THE SENIOR DEPUTY PRESIDENT: And they both went away with their beliefs, no malafides, no - and no question of one party misleading the other - - -
PN1769
DR SMITH: Yes.
PN1770
THE SENIOR DEPUTY PRESIDENT: - - - but they just hadn't come to a real consensus on that issue.
PN1771
DR SMITH: Yes.
PN1772
THE SENIOR DEPUTY PRESIDENT: What should I do in those circumstances?
PN1773
DR SMITH: Well, in our submission the Commission still has a duty to resolve this dispute.
PN1774
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1775
DR SMITH: To arbitrate it.
PN1776
THE SENIOR DEPUTY PRESIDENT: I can't shirk that and won't.
PN1777
DR SMITH: But, your Honour, although there is not much guidance in the cases your Honour has the opportunity to impose quite creative solutions, one which might be considered to be fair and just in the circumstances which might be some kind of halfway house. I mean that is the nature of an arbitration.
PN1778
THE SENIOR DEPUTY PRESIDENT: Yes. You submit I am not confined to finding that the agreement means one thing or another, construing it and then applying it, that I would be truly arbitrating under section - under the provisions of the Act as - - -
PN1779
DR SMITH: Not at all. In fact, we would say that if you were just to confine yourself to interpretation you would not be properly exercising your powers.
PN1780
THE SENIOR DEPUTY PRESIDENT: Yes. And that view would be consistent, I think, would it not, with the recent decision of Vice President Lawler in the Telstra case?
PN1781
DR SMITH: It would indeed, yes, yes.
PN1782
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1783
DR SMITH: So that is our answer to that?
PN1784
THE SENIOR DEPUTY PRESIDENT: Yes, thank you.
PN1785
DR SMITH: Now, you will note in the Tenix Defence Systems case towards the conclusion of the case that there were some facts and circumstances which draw some analogy with this case, and that is that it was also a case where the employer had, if you like, abdicated responsibility for explaining the agreement to the union.
PN1786
THE SENIOR DEPUTY PRESIDENT: Yes, you make that concession but perhaps a little readily. The employer's responsibility is to ensure that the terms are explained.
PN1787
DR SMITH: Yes. Well, delegated perhaps I should - - -
PN1788
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1789
DR SMITH: Perhaps I will withdraw that.
PN1790
THE SENIOR DEPUTY PRESIDENT: Yes, perhaps if you - you might be being a bit harsh on your client.
PN1791
DR SMITH: I will withdraw that and say delegated it.
PN1792
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1793
DR SMITH: In a way which might be considered to be appropriate. But the facts are analogous and in that case the Bench did have some regard to that. But I want to make the point, when you have a careful look at that case it didn't say that the mere fact that it had been explained to the employees in one way took away the primary principle that one should have regard to the intention of the parties when they made the agreement, and I don't think there is any suggestion in the case that if they found it meant one thing in terms of what was the mutual intentions of the parties when it was made, and it had been explained in a different way, that they should somehow or other go with the way in which it had been explained. I just want to make that point.
PN1794
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1795
DR SMITH: Now, if your Honour - you have before you here clearly conflicting evidence about what was the mutual intention of the parties at the time the agreement was made. You might find that the agreement was in accordance with the evidence of the Safeway witnesses, you might find alternatively that it is as contended by the union witnesses. We say that if you make a finding in favour of the Safeway witnesses your Honour ought to arbitrate in favour of Safeway. Now, on the evidence - we don't have the benefit of transcript and your Honour will need to carefully look through the transcript in coming to a conclusion in this matter.
PN1796
But what we say clearly should tip the balance in Safeway is the notes made by Mr Packer. They are surest and most reliable guide for the Commission as to what was said and agreed at the time, and we say that they should be relied on - if all else is equal your Honour should be guided by those notes. And we say those notes quite clearly show that the agreement was a Safeway, or Woolworths says it was, that there was a final proposal or proposition put by Mr Burton which included the public holidays at 250 per cent capped and that Mr Bird came back and accepted that proposition.
PN1797
Now, moving on to the question of discretion, although the union has asserted that the Safeway representatives who took responsibility for drafting the agreement did not properly reflect the terms of the agreement in the document, on the other hand that might weigh in one direction and it is certainly true. But on the other hand we say that on the evidence it is clear that the union failed in its duty to clarify what the terms of the agreement were and on one view it is certainly my submission a finding should be made that they knew what the agreement was but took advantage of Safeway's failure to properly reflect the terms of the agreement in the document.
PN1798
THE SENIOR DEPUTY PRESIDENT: Well, even if that be so, the document was drafted by Safeway; the very important issue of capping the payment on public holidays was not made clear in the agreement. There is no reference to capping. The agreement is in the same term relevantly - terms relevantly as was the 2000 agreement and the 1997 agreement. The employees voted in favour of the agreement as written. Why in the exercise of my discretion shouldn't I find that having regard to the actions of the company in not properly drafting the agreement, the understanding that it pertained for a number of years, and the understanding for which the union contends, ought not be given effect to? It is not an estoppel.
PN1799
DR SMITH: No.
PN1800
THE SENIOR DEPUTY PRESIDENT: But it is akin to an estoppel.
PN1801
DR SMITH: Well, because first of all we rely on Tenix that one should decide an arbitration such as this according to the principle in Tenix and what we are saying is whilst there are some issues of discretion about that they cut both ways, so we rely on that. In terms of the document itself we say that the employees voted on the basis - it appears on the evidence, not so much on the words in the agreement itself, but on what was put out in the newsletters, and we submit that on one view what was put out in the newsletters is capable of being interpreted according to the meaning that we attribute it to.
PN1802
It says public holiday - on public holidays the payments will be 250 per cent. It doesn't say they are capped or not capped, but it is capable of - and could be read by employees as meaning that is what they get when they get on a public holiday.
PN1803
THE SENIOR DEPUTY PRESIDENT: And I suppose you point to that newsletter - I think it is number 4 - where the union proposal was for 300 per cent capped.
PN1804
DR SMITH: That is correct. So we - - -
PN1805
THE SENIOR DEPUTY PRESIDENT: And the inference being that when a reduction to 250 per cent was agreed to it was merely a reduction in the quantum of what the union had proposed as 300 per cent.
PN1806
DR SMITH: That is the proper context in which to interpret the words upon which employees voted.
PN1807
THE SENIOR DEPUTY PRESIDENT: Yes. I understand how that is put, yes.
PN1808
DR SMITH: So that is how I respond to your question. So on the discretion we say although - that one needs to balance the fact that the union also had some responsibility in this matter and should not be rewarded for its conduct, we say. Now, the remedy that we seek is in truth in the nature of rectification. The principle of rectification is that where parties set out the terms of an agreement in a written instrument by which - which by mistake does not embody the true agreement between the parties, equity will allow rectification of the document. I don't think it is necessary to go to the cases. That is a statement of principle taken from the text.
PN1809
THE SENIOR DEPUTY PRESIDENT: What is the leading case? It is a while since I have had to look at rectification I confess.
PN1810
DR SMITH: If you would bear with me. I did bring them with me, but I don't have it with me.
PN1811
MR COONEY: You put them into the - I find these days you put them into the - you get all your law from computers. That is putting the word rectification.
PN1812
DR SMITH: Yes. I took those words from a leading text, your Honour.
PN1813
THE SENIOR DEPUTY PRESIDENT: Yes. What text was it?
PN1814
DR SMITH: I left it in the office.
PN1815
THE SENIOR DEPUTY PRESIDENT: Well, perhaps you might just let my associate know.
PN1816
DR SMITH: Yes.
PN1817
THE SENIOR DEPUTY PRESIDENT: Don't trouble yourself with it now.
PN1818
DR SMITH: I can supply you with it in due course.
PN1819
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1820
DR SMITH: Yes.
PN1821
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. I think the principle is probably well know.
PN1822
DR SMITH: Yes.
PN1823
THE SENIOR DEPUTY PRESIDENT: But it might be as well if I have it.
PN1824
DR SMITH: Yes.
PN1825
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN1826
DR SMITH: No, I will - if it is not an issue with Mr Cooney I will send the reference to your Honour.
PN1827
MR COONEY: No, that is - of course, of course.
PN1828
DR SMITH: Yes. Now, in his contentions the union - and I assume Mr Cooney wrote the contentions - has put it that there is no ambiguity or uncertainty here. Now, in terms of principle we rely on the statement of the Full Bench in the PTC case which is referred to in, I think, both of our contentions. At page 4 - it does not appear to be a case that is paragraphed - where the Full Bench says that:
PN1829
In our view the approach adopted by his Honour Gray J in the PKIU case is a sensible one and should be applied by the Commission ...(reads)... and an arguable case can be made out for more than one contention.
PN1830
Now, in this case we say there are clearly rival contentions about what the agreement itself, even as varied and as the current agreement is - when one has regard to whether there is an arguable case for each of the rival contentions, we would say you have to look at the context in which this agreement was made. The history and the context here is that you have an agreement which at clause 4.4.7 states in quite simple terms that:
PN1831
All employees working on a public holiday shall be paid at the rate of 250 per cent of the ordinary time rate.
PN1832
That is 4.4.7, your Honour. It says:
PN1833
All employees working on a public holiday shall be paid at the rate of 250 per cent of the ordinary time rate.
PN1834
Clause 2.71(e) says that:
PN1835
For ordinary rostered weekly hours worked between 6 am and 5 pm on Saturday the loading of 75 per cent in addition to the ordinary rate shall apply.
PN1836
You have actually got it different already. You have got in the public holiday provision a reference to the term ordinary time rate, then in 2.7.1(e) a reference to the ordinary rate. There is no definition of the term ordinary rate, nor of the term ordinary time rate. Then there is a definition though of ordinary time earnings in clause 1.7.10. That - - -
PN1837
THE SENIOR DEPUTY PRESIDENT: Sorry, what is the penalty for working on a Sunday?
PN1838
DR SMITH: It is in a different - it is in the overtime provision, your Honour. It just says you get double time.
PN1839
THE SENIOR DEPUTY PRESIDENT: Yes, I knew it was double time; I just didn't know where it was.
PN1840
DR SMITH: Yes.
PN1841
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1842
DR SMITH: Now, the definition of ordinary time earnings says that a payment is based on the stipulated - it is a payment based on the stipulated weekly wage rate for the appropriate classification as defined in clause 3 of the agreement. Now, if you take the view that ordinary time earnings should mean the same thing as the ordinary time rate, or that there should be some convergence between the two terms, we would say that you apply the normal industrial principle that one should not get a penalty on a penalty. And in this case when an employee receives the 250 per cent public holiday penalty the Saturday penalty provision is satisfied because the employee is already getting more than the 75 per cent ordinary time rate.
PN1843
They are being paid 250 per cent. There is nothing that impels a conclusion that you should get both. Now, against that there are two decisions of Northrop J in the Federal Court. I have read those decisions many times now and they are somewhat difficult to fathom.
PN1844
THE SENIOR DEPUTY PRESIDENT: I have read them once and I must say I tend to agree with you with respect to his Honour.
PN1845
DR SMITH: Yes. I have made some comments on the outcome in my written contentions, but it is important to note also apart from that, that the Coles Agreement that he was interpreting is different. It had no effective definition of the term ordinary time earnings. It also used in the equivalent provision to the Safeway Saturday penalty provision - it didn't use the term ordinary time rate. It did use the term ordinary time earnings. So that there are differences between the provisions in any event. In any event you will notice from reading the two decisions of Northrop J that he makes it quite clear that his decision is not legally binding on anybody.
PN1846
So it is not, we say, a case which would in any way bind this Commission in any event, and it is possible, we say, to read the decision of Northrop J as supporting our interpretation of the agreement. So all of this makes me put a submission which I say is made out, that the rival contentions here are clearly arguable; there is ambiguity and uncertainty and the Commission has jurisdiction. There is also the context of the Commissioner Frawley recommendation which is in evidence. This leads us to the question of what should the Commission do. It is clear, we say, having regard to the Full Bench decision in ANF v South Australia, print S6299 at paragraphs 30 to 33, that the Commission in these cases is not to confine itself strictly to issues of interpretation, but must take account of the merits of the case.
PN1847
That is what the Full Bench said in that case and it was an MD(6) case. Now, we say that on the merits the agreement should be varied. Now, there are, of course, a number of options open to the Commission and I have canvassed this in answer to your questions a little earlier. But if the Commission finds the agreement is contended by Safeway, then the Commission should make the variation that Safeway has asked for and retrospectively to when the agreement is certified, and in our contentions - I think our reply, we have referred your Honour to a decision of the Commission which says that you can do that retrospectively.
PN1848
Now, if the Commission finds that the union's version of the agreement is correct, then we say it would at least be prudent for the Commission to vary the agreement to reflect the recommendation of Commissioner Frawley, that on a public holiday which falls on a Sunday the appropriate rate is 400 per cent rather than 500 per cent, which is certainly something that is still out there. And I think that at the very least should be remedied. Now, if the Commission finds that there is in fact no agreement, or was no agreement between the parties on the critical question, we say the Commission has the discretion to exercise a number of different creative options.
PN1849
That is the nature of this kind of arbitration and we think it is probably inappropriate for us to put to you what they should be. Those are matters that your Honour would have to turn your mind to. So those are our submissions. I said I would be brief. Thank you.
PN1850
THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Dr Smith. Mr Cooney.
PN1851
MR COONEY: Your Honour, I just want to make the point of decisions by Northrop J; may I come to his defence, your Honour. Northrop J, I think, has been a most eminent judge and very lucid and I think he was lucid on this occasion - on the two occasions that he spoke about. And, your Honour, the history of all that - or the way the union saw it, is set out in attachment H to Mr Bird's statement and it - this is the one dated 10 May 1999. This came subsequent to the opinion from Gill Kane and Co and on page 3 of that statement under the heading Payment for Public Holidays, it sets out what the union position is and what the history of all this is and, your Honour, what has happened is that in - it has always been understood and indeed, I think, Safeway and Coles have paid according to the formula set out on page 3 of that publication - that newsletter.
PN1852
And, your Honour, that was the understanding. There was no doubt that people understood what the agreement meant and when it - when this agreement came to the fore in 2002 people understood what happened. When I say people - Woolworths and the union understood and it is Woolworths - this is a case, your Honour, where there is an agreement been made between Woolworths and the union, not between Mr Hibberd and the union. Now, your Honour, it is always dangerous for somebody for the other side to come to its defence, but I am going to come to Mr Hibberd's defence in this action because I think, your Honour, he is - - -
PN1853
THE SENIOR DEPUTY PRESIDENT: Is this a bit like damning with faint praise, is it, Mr Cooney?
PN1854
MR COONEY: Well, it is, your honour, but it just seems to me unfair that he wasn't at the meeting on the 23rd. He is then told to go away and prepare the agreement and other people prepared part of this agreement but not the - it was Mr Hibberd who prepared this part that has caused all the problems, your Honour. That is the evidence coming from Woolworths. Mr Carr, he has not got into the box. Mr Packer said, oh, look, I prepared part of it but not this part, and who else - - -
PN1855
DR SMITH: Mr Burton.
PN1856
MR COONEY: And Mr Burton, well, look, I had nothing to do with it, your Honour.
PN1857
THE SENIOR DEPUTY PRESIDENT: But he did accept, I think, coming from a question from me that he should have been more vigilante.
PN1858
MR COONEY: Yes, your Honour. Look, then you have got Mr Hibberd who hasn't - who doesn't know the history of all this, he has only been there, I think, about a year, and he is sent off to write the agreement. Now, your Honour, this is not a small company, it is a highly respected and very big company and you would have thought, your Honour, that they would have gone about their task more readily than they did. So I just say that on behalf of Mr Hibberd. And the other one I suppose - well, I spoke - not only do I suppose, but it is true - perhaps I ought to say something about the accusation made against Mr Bird by Dr Smith, but I don't think with any sort of viciousness or anything like that about it, your Honour, but, nevertheless, he has got out there on the record that somehow that - not only somehow - that Mr Bird acted unethically and it does come to that issue of negotiations.
PN1859
And, your Honour, this is an interesting case because it talks about how people are to negotiate because what the - what in effect Woolworths was saying was, look, once we attach the word capped to the loadings - penalty loadings for holidays, capped remained there forever on and it was up to the union to say it is uncapped. Now, your Honour, in my submission that is not how negotiations work and it would not be the way anybody at the bar table or yourself, your Honour, would have conducted negotiations over the years. But if an offer is rejected then it is at large again and - - -
PN1860
THE SENIOR DEPUTY PRESIDENT: Well, not necessarily, Mr Cooney in the current thrust of things, but I think there is evidence here to the contrary that when certain items were agreed they were dropped off and negotiations went on to matters that were still in contention.
PN1861
MR COONEY: Well, I suppose that is true, your Honour, but this issue of the capping was still very much alive.
PN1862
THE SENIOR DEPUTY PRESIDENT: But is it not open to me to find that once the union put in a counter proposal of 300 per cent capped the issue of capping was no longer alive. The quantum of the penalty payment was but there had been an agreement that it would be capped.
PN1863
MR COONEY: No.
PN1864
THE SENIOR DEPUTY PRESIDENT: Wasn't it then incumbent on the union to say, well, okay, if we are going to cop 205 per cent we will cop it uncapped?
PN1865
MR COONEY: Well, no, your Honour, I think that the rules of negotiation is once that was rejected, their offer of 300 per cent capped, it then became an issue at large again. And, you see, this is done in the context of an agreement and this is where we have some sympathy with Mr Hibberd if it is true. What Woolworths did was just to cross out 300 and put in 250 and it was quite clear, your Honour, that - and then sent it to the union and - not that we are going to conspiracy theories, your Honour. I suppose conspiracy by Woolworths is theoretically possible. A conspiracy by the union is theoretically possible, but I am one of those - of that school that always says if it is a contest between a conspiracy and a muck-up it is going to be the muck-up on each occasion. Well, I suggest that is what has happened here, your Honour. We say the muck up has been contributed by - very much to by Woolworths. I mean they sent this - - -
[2.20pm]
PN1866
THE SENIOR DEPUTY PRESIDENT: Well, that would then lead to the position that I put to Dr Smith that there was really no consensus on that issue, that there was really no agreement reached.
PN1867
MR COONEY: Well, if you accept - your Honour, if you - - -
PN1868
THE SENIOR DEPUTY PRESIDENT: Well, if I accept your muck up theory?
PN1869
MR COONEY: Yes, your Honour.
PN1870
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1871
MR COONEY: If you accept that the union is telling the truth and that the - and is honest its approach - well, what you put before I think, your Honour, is correct. But we would say, your Honour, that is not how your Honour ought to approach it and there is only - or one case that I want to take your Honour to and - because it seems to sum up the law as we say it should operate and that is the one I have put in more recently and it is the Royal Botanic Gardens and Domain Trust v South Sydney City Council. And that - - -
PN1872
THE SENIOR DEPUTY PRESIDENT: Is that one of the ones you handed up yesterday, is it?
PN1873
MR COONEY: Yes, your Honour. And it is - and I think it illustrates exactly why the task we have gone about or how the task we have gone about can be avoided. I go in for a bit of reading and I want to be short, as my learned friend was, but I will perhaps just read these parts of the judgment, this is paragraph 68. And it says this:
PN1874
Where parties reduce their agreement to writing, the orthodox approach to contractual constructions obliges the decision-maker to address attentions primarily to the document in which the rights of the party are stated.
PN1875
In this case that document was the deed of lease. This is contest between two public authorities as to a car park but the court which consisted - this is a judgment of Gleeson CJ and Gordon, McHugh, Gummow, Kirby and Haines JJ. They say:
PN1876
In statutory construction there is a tendency noted in several recent cases for judges and others to look first at a number of external sources for guidance including judicial generalities or ...(reads)... but the task itself remains that of finding the meaning of the legislation from the text not from other materials.
PN1877
And then goes on to say, at 70:
PN1878
The same point -
PN1879
paragraph 70 -
PN1880
The same point of principle is applicable where the function in hand is to construe the terms of a written contract.
PN1881
Which is the situation here, your Honour. The starting point must be the contract. Only later, if need be, may the decision-maker have resort to contextual materials and supplementary or exiguous evidence in the elaboration of the text. And so it goes on. And could I quote at page 71:
PN1882
In the case of a complex lease entered for a very long term in respect of a significant property development with high capital ...(reads)... advised by highly competent and experienced solicitors.
PN1883
Now, your Honour, Woolworths say they didn't go to their solicitor but they certainly had available to them some very highly competent people and in the end they could have come to Dr Smith and who better to advise in this area, your Honour.
PN1884
THE SENIOR DEPUTY PRESIDENT: No doubt if they had, we wouldn't be here, Mr Cooney.
PN1885
MR COONEY: That is exactly right, your Honour, and why they didn't do that, I have been wondering as to why they didn't do it but, your Honour, I just go to 102 - in fact does the contain the word "rectification" - come across it somewhere:
PN1886
In a sense such cases present even -
PN1887
he is talking about cases that went before -
PN1888
even stronger reasons for adhering to a text upon which the parties have agreed ...(reads)... equitable remedies are available -
PN1889
and this is your point your Honour was - turned his mind to -
PN1890
equitable remedies are available to modify the effects of the written text in a way that is not possible with legislation ...(reads)... or expectations of the maker's were.
PN1891
And if I can stop there, your Honour. Really what you have heard from Woolworths is what their subjective intentions and beliefs and expectations were and I think that becomes quite clear but what did they make clear to the union with whom they were dealing? But if I can go on quoting, your Honour:
PN1892
At a time of increasing international trade ...(reads)... the present parties to the language of the deed as executed.
PN1893
And it goes on, 103:
PN1894
Pre-contractual negotiations: Accepting that the law on the ...(reads)... the position remains in my view.
PN1895
And that is stated by Mason J. Now, your Honour, I think my learned friend has referred to Cadalfa and, your Honour, it just seems that this case is a succinct way of summing up the law in the area and, your Honour - - -
PN1896
THE SENIOR DEPUTY PRESIDENT: Do you not agree with Dr Smith then that the agreement is ambiguous or uncertain as to its meaning?
PN1897
MR COONEY: Well, in my submission to your Honour, the agreement wasn't in any way ambiguous because of the two previous agreements and what the parties had adhered to and this is where - - -
PN1898
THE SENIOR DEPUTY PRESIDENT: But that is asking me to look at the context.
PN1899
MR COONEY: Well, your Honour, in these circumstances - in the circumstances - - -
PN1900
THE SENIOR DEPUTY PRESIDENT: But you are then saying look at some extrinsic material and not at others.
PN1901
MR COONEY: Yes, your Honour, that is what I am saying and, your Honour - and what your Honour has got to do, and with respect this is what your Honour was saying before - this is an area of - where - absolutely essential for the running of our industrial system of unions and employers and making the wheels, if you like, of industry run better and that is a practical solution and your Honour was talking in terms of practicality. Well, you have got to look at the negotiations between the union and Woolworths in terms of what the practicalities are.
PN1902
Now, your Honour, the union came along negotiating on the basis of the previous contract - previous agreement, or the agreement as it was then extant, and they were entitled to expect that that is the way Woolworths had come along saying what changes are we going to make? And whatever else is said in this case what ended up happening was that Mr Bird was sent an agreement that he expected, on his evidence, to receive and, your Honour, it is a bit hard - and perhaps I will turn to the issue of where he was accused of acting unethically - but it is a bit rich, if I can put it that way, your Honour, to accuse him of not acting ethically when somebody else with whom he is dealing writes the agreement and he expects to get it - it wasn't him that wrote it - and expressed in that agreement exactly what his concept of things were.
PN1903
Now, your Honour, if - say the tragedy had happened, your Honour, and Mr Bird and Mr Burton and everybody else who was part of the negotiations were all going for a bus trip and the bus tumbled off the Great Ocean Road and they were all killed, your Honour, and then we came to interpret this agreement, the 2002 agreement. Your Honour would say, well, this is easily interpreted, I look at the agreement, it is a repeat of two previous agreements, one of which - the earlier one of which Northrop J had set out and in the light of those judgments and one visit to the Commission the parties followed and they paid pursuant to all this - we can see all that - then clearly this agreement means that.
PN1904
Your Honour, the only complication - when I say only, it is a big complication - but the only complication that has happened in this is that Mr Hibberd has come along in effect and said, oh, look, I have done what I now realise I shouldn't have done, but I did what I did because I was told to and that is a problem, and no doubt he has been along to Dr Smith - or the company has been along to Dr Smith and Dr Smith has said, well, let us see what is available within the law and so here we are. But, your Honour, the reality is that the union made an agreement which everybody - that Woolworths knew the meaning of and which the union knew the meaning of - people within the organisation might not have understood that, but Woolworths as an entity understood it and the union as an entity understood it as well.
PN1905
And, your Honour, say this had been reversed. There is young fellow up at the union now called Colin Ross, who has been there, I think - well, how long - eight months and say the position had been reversed - say the negotiations had taken place and Colin Ross had been directed - he had - not that he was at the vital negotiation that decided all things, but, nevertheless, even though he wasn't there he was sent off to prepare the document and he is told that there has been - there is a precedent to this, the outstanding - the extant agreement and he goes and he crosses it out and then he comes along and says, oh, look, nobody told me but I have made a mistake and, therefore, we want Woolworths to, as it were, abandon the agreement.
PN1906
Woolworths would be more than entitled to say, well, it is up to the union to ensure that the agreement is properly put together. And I just think - it is bad - and I just think it is very unfair actually on Mr Hibberd and as your Honour says it is probably damning with faint praise, but I don't - may I say to Mr Hibberd I don't damn him with faint praise, but I think it is - that is what has happened here and it is a - if I can use it, it is the - it is Woolworths - Woolworths has brought that around. Your Honour, I was going to quote McCrae's case that is put there. That is a case where the High Court of Dixon and - I think it was a Commonwealth Commission had acted carelessly - McCrae - in McCrae.
PN1907
And, your Honour, at page 409 it was Dixon and Fullagar JJ and what had happened there is that the Commonwealth body - well, the Commonwealth Disposals Commission had sent these people off on the basis there was a ship sunk and could be salvaged and in fact there wasn't such a ship. Now, what they said at page 409 is this that the Commonwealth Disposals Commission - and I can remember that organisation, your Honour, which is a bit unfortunate.
PN1908
They took no steps to verify what they were asserting and any mistake that existed was induced by their own culpable conduct ...(reads)... was that they believed what the Commission told them.
PN1909
PN1910
And then they sort of, your Honour, held that against them for - the Court held that against the Commission because of its actions. Now, I am not suggesting that Woolworths have gone and done it in quite as culpable as what happened in McCrae's case, but, nevertheless, there - why I want to quote that, your Honour, is there is this sense in the law that a party should take proper care in preparing its things and it would be my submission, your Honour - it is a matter for yourself - for the Commission - that really allowing this to get to the stage it did, mainly because they left it to Mr Hibberd, is not good contact on Woolworths' part and in addition to that they let it run amongst the employees.
PN1911
There were meat managers that according to Mr Burley - and I think that was backed up by Mr Packer I think it was, who said, yes, there is managers turned up to these meetings where they were told what they were told - store managers and, yes, meat managers. And they have just let it run. Nothing was done about it. So, your Honour, I don't want to get too exercised about it but if you look at Woolworths - and I am not sure that this was - this certainly probably wasn't there - the biggest issue that Woolworths had on their minds and I can follow that, they are busy people and they have got a lot of things to do and perhaps they didn't pay the time and attention that they might have to a bigger agreement such as an agreement with a suppliers of goods or something like that.
PN1912
But, nevertheless, your Honour, it is important to their employees and they - what I say, your Honour, is they should have been more careful. Your Honour, can I say something about the issue of jurisdiction. You always feel that - or at least I always feel - used to always feel - it is a long time since I have done much, but mean about taking the issue of jurisdiction. It is sort of - I always get the feeling something - - -
PN1913
THE SENIOR DEPUTY PRESIDENT: Don't feel at all embarrassed, Mr Cooney.
PN1914
MR COONEY: Just want to get the feeling that you are saying - you know - - -
PN1915
THE SENIOR DEPUTY PRESIDENT: I never felt embarrassed taking jurisdictional points.
PN1916
MR COONEY: Well, your Honour, I do, but what I want to say is this. If I can just go back - - -
PN1917
THE SENIOR DEPUTY PRESIDENT: I can't act without jurisdiction and if I don't have it I would be obliged to have that pointed out to me.
PN1918
MR COONEY: Well, it is an issue of fact. But if I could just go back to 69 of this - of the Royal Botanic Gardens and Domain Trust v South Sydney City Council, your Honour. It said - again, it comes back - that what it says that you have got to read the text and we as lawyers have not got to be like dentists who are happy to talk about the problem but loth to pull a tooth. Your Honour, it is a fairly dramatic statement, but there you are. But, your Honour, if you do look at section - well, look at section 170L(2)(viii), it says:
PN1919
The agreement -
PN1920
that is the agreement between the parties -
PN1921
must include procedures for bringing and settling disputes between the employer and the employees whose employment will be subject to the agreement about matters arising under the agreement.
PN1922
Now, your Honour, there is no dispute - in fact I notice that there is no dispute in this matter between the employers and employees in the sense that that is provided for in the agreement - clause 4.8 of the agreement. That talks about how an issue arises in the workplace. Now, we might agree or disagree with the - - -
PN1923
THE SENIOR DEPUTY PRESIDENT: Well, isn't there a dispute between the employer and Ms Haddock and Mr McKay?
PN1924
MR COONEY: Well, no, she didn't - she wasn't - if you look at what they say - I was looking at this, your Honour. They simply say, look, this is what happened. They were giving an account of a series of events.
PN1925
THE SENIOR DEPUTY PRESIDENT: They say this is what I expect to be paid if I work on a public holiday and the company says, this is not what we expect you to be paid. Surely that is a dispute between the company and the employees.
PN1926
MR COONEY: Your Honour, it is a matter for you, but they haven't said that and there is no dispute, and I - not that I have been able to look through all the authorities, but I couldn't find an authority which showed where this sort of issue was tried without arising from an actual incident in the workplace. But, anyhow, your Honour, that is the way I put it.
PN1927
THE SENIOR DEPUTY PRESIDENT: Yes, thank you.
PN1928
MR COONEY: And I won't dwell on it. And the other thing, my learned friend was quoting from the objects of the Act, and I did have the Act here somewhere. Here it is, your Honour. And he quoted a - but this - my learned friends talked about a penalty on a penalty and you and I might have views about what a penalty on a penalty - whether you should have penalties on penalties, but if that is the agreement, your Honour, that is the agreement and section 3 of the Act we have - 3B:
PN1929
The principle objectives of this Act are to provide a framework for the co-operative workplace relations ...(reads)... at the workplace or enterprise level.
PN1930
And C:
PN1931
Enabling employers and employees to choose the most appropriate form of agreement for their particular circumstances, whether or not that form is provided for.
PN1932
And so on. And, your Honour, this is - and I think there is a section which your Honour would know about which says that the matter of private - public interest is not a matter to take into account when these agreements are being made. And, your Honour, for my learned friend to sort of say, well, look, no matter what the parties agreed upon, if it is a penalty on a penalty nobody around here likes that and, therefore, you shouldn't give it, I think is a wrong invitation. So, your Honour, my submissions are that on the facts there is no jurisdiction for the reasons I have said and what has been set out.
PN1933
If your Honour finds there is, my submission is that your Honour ought to look at the agreement and the agreement only in accordance with what the High Court says. If your Honour says, well, I am going to look at it no matter what you say, your submission is wrong, and of course that is what your Honour is perfectly entitled to do, then your Honour ought to find that the negotiations were one that ended up with an agreement that the parties understood, and when I talk about the parties, I don't mean members of the union - or officers of the union, I should say, or officers of Woolworths, I am talking about the union and Woolworths, that they knew what the written agreement meant and that that is what your Honour should look at.
PN1934
If your Honour does look at the negotiations, your Honour would have taken into account that it was the company that was trying to change the agreement that everybody understood, and to throw the onus on to the union once they had used the word "capped", was not the appropriate course to take. In other words, what I am saying is the onus, I think, is on those people - or is on that party which wants to bring about the change to keep stressing that is what they want. They want that change made, so that if the union wanted more - - -
PN1935
THE SENIOR DEPUTY PRESIDENT: Or to put it another way, the onus is on the company to ensure that the agreement reflects the position that it was agitating for.
PN1936
MR COONEY: Yes, your Honour, yes. Your Honour, I put it all down; of course, everything I will be saying, your Honour, is something from now on is that if your Honour wants to exercise your discretion, it should be exercised in favour of the union and so I think that will be fairly self-evident, your Honour. Probably haven't been much help to your Honour already, but I do say I don't think I can help your Honour any more. Try to get the bar table cleaned up.
[2.44pm]
PN1937
THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Cooney. Dr Smith, anything in reply?
PN1938
DR SMITH: Just a couple of points in reply. In terms of this issue of onus, it is my submission that there is a mutual onus in agreement making under the Act and that if we were just to take the view that a party wanting to make a change bears the onus, that that is artificial in the context of the making of industrial agreements under this Act.
PN1939
The second point that I wanted to make is that I am somewhat surprised that the union seems to be suggesting that employers when they draft enterprise agreements should always go and get legal advice. It has not been my experience in this jurisdiction that parties do generally go and seek legal advice when they draft agreements. I mean, perhaps it might be better if they did, but that - - -
PN1940
THE SENIOR DEPUTY PRESIDENT: Perhaps Mr Cooney didn't put that on instructions, Dr Smith.
PN1941
DR SMITH: No. And I certainly - - -
PN1942
MR COONEY: That is right, your Honour, I didn't.
PN1943
DR SMITH: - - - would be interesting to, if the boot was on the other foot, to be putting a proposition that the union should always go and get legal advice about its agreements because my experience is the almost never do.
PN1944
MR COONEY: But you would have saved them from this, there would be no doubt about that; that is the issue.
PN1945
DR SMITH: And I say that from experience. So that is all I have in reply, your Honour.
PN1946
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Well, I am going to reserve my decision obviously. I just make these observations, that each side is at risk here, it seems to me. I have to come to a view and it seems to me that I can come to a view that the agreement was, as is propounded by Mr Cooney on behalf of the union, that it was 250 per cent and that is that, or I can come to the opposite view that the agreement was that it was 250 per cent capped as put forward by the company. It will require a careful analysis of the evidence for me to come to some conclusion as to what was and wasn't said.
PN1947
As I said at the outset to Dr Smith, I may also, it seems to me, to be open on the evidence for me to come to the view that there was just never a consensus reached, in which case I might then impose upon the parties a solution of my own making. So the risks to the parties are that I can find against the company entirely and say that the agreement should be read so that the penalty is a penalty on a penalty for the duration of the agreement, or conversely that there be no penalty on a penalty at all for the duration of the agreement or somewhere in between.
PN1948
While I am considering my position, it might be worth the parties' while considering their positions as well because neither of you may like what results from this decision. And also it seems to me that what we are dealing with here is a dispute about an agreement that was reached in the process of negotiation, in the process of settling an industrial dispute, and during which there was industrial action and acrimony, and it may well have a value to the parties beyond merely winning or losing this case to come to some sort of compromise for the remainder of the agreement that they have reached.
PN1949
So having said all of that, I will reserve my decision.
ADJOURNED INDEFINITELY [2.50pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
ERIC GRAHAM BIRD, AFFIRMED PN1180
EXAMINATION-IN-CHIEF BY MR COONEY PN1180
EXHIBIT #U1 WITNESS STATEMENT OF MR E.G. BIRD, SIGNED AND DATED 26/6/03, TOGETHER WITH ATTACHMENTS PN1190
CROSS-EXAMINATION BY DR SMITH PN1192
RE-EXAMINATION BY MR COONEY PN1394
WITNESS WITHDREW PN1418
PAUL DAVEY, SWORN PN1427
EXAMINATION-IN-CHIEF BY MR COONEY PN1427
EXHIBIT #U2 STATEMENT OF P. DAVEY PN1431
EXHIBIT #U3 RELEVANT PAGE FROM MR DAVEY'S NOTEBOOK THAT ENDS ON 28 OCTOBER 2002 PN1437
CROSS-EXAMINATION BY MR DAVEY PN1438
EXHIBIT #U4 TYPED VERSION OF NOTES OF MEETING HELD ON 23 SEPTEMBER PN1457
WITNESS WITHDREW PN1492
JAMES CROSBY BRITTAIN, SWORN PN1493
EXAMINATION-IN-CHIEF BY MR COONEY PN1493
EXHIBIT #U5 MR JAMES CROSBY BRITTAIN'S STATEMENT, TOGETHER WITH ATTACHMENT PN1498
CROSS-EXAMINATION BY DR SMITH PN1499
WITNESS WITHDREW PN1510
LAWRENCE JOSEPH BURLEY, SWORN PN1512
EXAMINATION-IN-CHIEF BY MR COONEY PN1512
EXHIBIT #U6 STATEMENT OF LAWRENCE JOSEPH BURLEY, TOGETHER WITH ITS ATTACHMENTS PN1521
CROSS-EXAMINATION BY DR SMITH PN1522
RE-EXAMINATION BY MR COONEY PN1602
WITNESS WITHDREW PN1605
MICHAEL WARE, SWORN PN1606
EXAMINATION-IN-CHIEF BY MR COONEY PN1606
EXHIBIT #U7 STATEMENT OF MICHAEL WARE PN1614
CROSS-EXAMINATION BY DR SMITH PN1615
WITNESS WITHDREW PN1649
EDWARD STEVENS, SWORN PN1650
EXAMINATION-IN-CHIEF BY MR COONEY PN1650
EXHIBIT #U8 STATEMENT OF EDWARD STEVENS PN1657
CROSS-EXAMINATION BY DR SMITH PN1658
WITNESS WITHDREW PN1670
DUNCAN McKAY, SWORN PN1672
EXAMINATION-IN-CHIEF BY MR COONEY PN1672
EXHIBIT #U9 STATEMENT OF DUNCAN McKAY PN1681
CROSS-EXAMINATION BY DR SMITH PN1682
WITNESS WITHDREW PN1704
KATHLEEN ELIZABETH HADDOCK, SWORN PN1705
EXAMINATION-IN-CHIEF BY MR COONEY PN1705
EXHIBIT #U10 STATEMENT OF ELIZABETH HADDOCK PN1712
CROSS-EXAMINATION BY DR SMITH PN1713
WITNESS WITHDREW PN1743
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