C2003/4389, Transcript of Proceedings [2003] AIRCTrans 3750 (26 August 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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TRANSCRIPT OF PROCEEDINGS

O/N 10507
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER EAMES

C2003/4389

NATIONAL UNION OF WORKERS

and

COLES MYER LOGISTICS PTY LIMITED

Application under section 170LW of the Act
for settlement of dispute re the employer
allegedly changing the rostering pattern for
RDOs without the agreement of employees

MELBOURNE

10.02 AM, TUESDAY, 12 AUGUST 2003

Continued from 14.7.03 (Not Transcribed)

PN1

MR T. LYONS: I appear on behalf of the National Union of Workers.

PN2

MS H. KAINEDER: I appear on behalf of Coles Myer Logistics, together with MR P. ATHANS.

PN3

THE COMMISSIONER: Thank you. Mr Lyons.

PN4

MR LYONS: Thank you, Commissioner. In relation to this matter, and further to the directions issued by the Commission at the last hearing of the matter, the parties had some discussions about exactly what was between them in relation to the issue, and formed the view that it may be productive, particularly to obviate the need for long and involved witness evidence, for an agreed statement of facts to be prepared for the benefit of the Commission. Because it became clear, I think, to both sides, in preparing a case, that much of the facts surrounding the matter were not actually at issue. So the Commission should have on its file a document titled, Agreed Statement of Facts, signed by Mr Howe for the employer, and by myself for the union. Does the Commission have that?

PN5

THE COMMISSIONER: Yes, I do.

PN6

MR LYONS: Those 16 numbered paragraphs set out an agreed matrix of the facts and the circumstances which the parties are happy for the Commission to rely on in determining the matter. In terms of the other material that is before the Commission, there is also - perhaps I should say, is it your practice to mark those documents?

EXHIBIT #NUW1 AGREED STATEMENT OF FACTS

PN7

MR LYONS: There is also an NUW outline of contentions in brief point form, which also was filed pursuant to the directions.

PN8

THE COMMISSIONER: Yes.

PN9

MR LYONS: A similar document has been filed for the employer. There is one witness statement filed by the union, Commissioner, which is a statement of Mr Greg Blair with two attachments, which you also have. I understand that there is no cross-examination required of Mr Blair. So in the circumstances we don't propose to call him unless the Commissioner requires us to call him to swear his statement.

PN10

THE COMMISSIONER: Thank you. No, that is fine.

PN11

MR LYONS: We would hand up a signed copy of the statement that is in identical terms to that which has been provided to my friend, and is already on the file of the Commission.

PN12

THE COMMISSIONER: Thank you.

EXHIBIT #NUW2 STATEMENT OF G. BLAIR

PN13

MR LYONS: The only other material, Commissioner, on which we would propose to rely, is obviously the current enterprise agreement. The parties have extracted the relevant provision of the current agreement. I do propose to hand up, and I will refer to them very briefly, the predecessor EBAs which are set out in exhibit NUW1, if I can provide those to the Commission.

PN14

THE COMMISSIONER: Thank you. I won't mark those individually - - -

PN15

MR LYONS: No.

PN16

THE COMMISSIONER: But simply attached to the file and refer to them.

PN17

MR LYONS: And those documents, sir, are the '93, '95, '97 and 2001 agreements respectively, which is set out at paragraph 4 of exhibit NUW1. Perhaps if before I then turn to submissions, Commissioner, I can just confirm that that is - if we can get all the material on at the start perhaps. If I can just confirm with my friend that - - -

PN18

MS KAINEDER: Yes.

PN19

MR LYONS: That is the sum total of the material on which - - -

PN20

THE COMMISSIONER: You don't happen to have an outline of the decision?

PN21

MR LYONS: Fifteen minute adjournment, Commissioner, I will provide you with one. Commissioner, I would propose to start very briefly by running through the agreed statement of facts and extracting from it certain issues concerning the factual circumstance under which this dispute comes before you, and I am aware that given the benefit of the earlier proceedings and some discussion in conference, you are reasonably well aware of most of this material. But for the purposes of the union's submission, we do seek to bring attention to a number of issues. I probably should say at the start that the parties jointly accept that the Commission has jurisdiction to determine this dispute in accordance with the disputes procedure.

PN22

THE COMMISSIONER: Good, thank you for that.

PN23

MR LYONS: Commissioner, this dispute concerns 28 of 166 permanent employees at the Distribution Centre. All of those 28 employees are long term employees; that is they were all employed prior to the 18 October 1993. The significance of that date being that it is the operative date of the first of the enterprise agreements I handed up, and therefore those employees have some grandfathered benefits in respect of the span of hours provided for working of ordinary hours under the agreements.

PN24

I am instructed that those employees work across a range of areas within the distribution centre. That is, that they are not a discrete department, and they also work across a variety of functions. The history of the hours of work and related arrangements at this facility, sir, goes back to the 1993 agreement, and in that agreement there were various flexibilities negotiated and agreed between the company and the union. Principally they have centred around an extension to the span of hours and the provision of Saturday work within the ordinary span of hours, not at ordinary time, but nevertheless within the ordinary span of hours.

PN25

As I have already indicated, pre-existing employees were grandfathered, or protected from being able to be rostered those hours. There was also extensive negotiations in respect to the issue of rostering. And the agreement provided that new agreed rosters would be developed between the company and the union and the employees, in the period in which the agreement was initially implemented. The 1993 agreement provides that in the first instance the agreed roster system would be filled by volunteers, and did provide for the replacement of the existing nine-day fortnight roster.

PN26

I am instructed, sir, that the traditional method of the hours of work was the very bog standard, if you like, nine day fortnight, where you have an RDO every second week. Although I understand there was some flexibility of the days of the week on which that occurred. The nature of the new rostering arrangements was that the RDOs were banked up over a longer period of time and the roster periods were extended from two weeks up to a period of 10 weeks. The 1993 agreement also provides that rosters of 10 weeks and above could only be implemented by agreement.

PN27

Part of the implementation of the 1993 agreement was that a 10 week rostering cycle was in fact introduced, and at the time that roster was introduced by agreement, all permanent employees were engaged on that roster, and this was, on my understanding, a request of the employer. This roster involved employees working a 10 week cycle, and taking two blocks of RDOs, one of three and one of two. The weeks in which those RDOs fell did not vary from 10 week period to 10 week period. And, Commissioner, it is that roster that the 38 employees are still engaged on and have been engaged on since 1993. And the details of that are set out at paragraph 7 of the agreed statement of facts.

PN28

Since 1993, as we say in paragraph 8, and I know this is an indistinct way of putting it, as in any time in the last 10 years, but my instructions, sir, are that over time, basically people have come off this roster either by new starters or volunteers. And so it has happened as a very gradual process, rather than any sort of big bang event. That roster, we say here, also involves a 10 week cycle. When I saw it, sir, I had some view that it was actually a five week roster, but I don't think anything turns on the fact. The roster involves one RDO each fortnight, but a variation as to which day in the fortnight, the day actually falls. So it is really a more - a variation on the old fashioned nine day fortnight system.

PN29

THE COMMISSIONER: Yes, I follow that.

PN30

MR LYONS: As I say, all of the 28 employees who are currently rostered on the consecutive RDO cycle were employed at the DC prior to 18 October 1993, and have been on that roster since the introduction point of the 1993 agreement. However that, on my instructions, was some point after its certification pursuant to its own terms. That is there was some discussion about how it would be implemented after its certification. What has occurred since 1993 is that the employer has asked employees who have been on the consecutive RDO cycle to move to the single RDO cycle on numerous occasions. That has been either by direct approach to the employees or by group discussion or via direct approaches to the National Union of Workers.

PN31

I am also instructed that on various occasions, individual employees have asked to move to the single RDO cycle because of their own personal arrangements, and from time to time this has been agreed by the company. There has been no occasion where an employee, since 1993, has been required to move off the consecutive RDO roster by the employer. In terms of the RDO arrangements at the site, Commissioner, at paragraph 11 we set out that what occurs is that an annual roster for the facility is published each year by the employer. My understanding is that that is developed over November and December of the preceding calendar year and published either late that year or first thing in the New Year.

PN32

And so employees are given a roster setting out for the calendar year, when their RDOs are to occur. In practice this means that the RDO roster which is currently in place, and I might say that this applies, whether or not you are on the consecutive or single RDO system, was published at the end of 2002 and runs to the end of the 2003 calendar year.

PN33

THE COMMISSIONER: Right.

PN34

MR LYONS: Essentially the only issue, Commissioner, for you to determine, is whether or not the employer can require a move from the consecutive to the single RDO system. That is essentially the only issue which is between the parties. At paragraph 13 we set out what the relevant provisions of the current enterprise agreement are, and in particularly I think clause 22 is relevant, and the union would bring your attention to four or five parts of that provision in particular.

PN35

The first is in 22.1, where you will see in the third paragraph the phrase:

PN36

All new and tenured employees employed after 18 October 1993 may be required to work rosters which incorporate the full span of hours.

PN37

I end the quote there. That is the grandfathering provision, Commissioner, to which I refer. The central issue, however, turns on the material contained in 22.3 entitled, General Principles of Rostering. The company relies on 22.3(i) which states:

PN38

The company is to provide a minimum of two weeks' notice for an introduction, amendment or change of roster. This notice period is able to be reduced by mutual agreement.

PN39

What is also relevant, we say is (iii) which states:

PN40

Rosters are to be based on the 1 to 5 weeks cycle. However rosters may also include a 10 week cycle by mutual agreement between the parties.

PN41

And I end the quote there. Two matters arise from that, Commissioner. The first is we say is that the reference to rosters is appropriately read as being a reference to the hours of work performed. That is the span of hours within which work is performed. It is not for these purposes, a reference to an RDO roster. The reference in (iii) is important because it clearly indicates that for the RDO cycle to extend beyond a period of five weeks, that needs to be done by mutual agreement. It is a necessary extension of that provision that for that roster to be ended, it would also require mutual agreement. Absent of any specific provision to the contrary, we say that something that can only be introduced by agreement could only be discontinued by agreement.

PN42

So they are the provisions of the agreement which the Commission should have direct regard to in considering this matter. I do intend to return later in my remarks to the history of these provisions and where they have come from, because we think it provides the Commission with some information which is of benefit in interpreting the proper application of those terms. As we had stated previously, the employer has never previously required an employee to move off the consecutive RDO cycle, and from time to time the union and its members have agreed to move various persons off that roster.

PN43

It is our claim, Commissioner, that the agreement does restrict that movement and it does so fundamentally on the short version of the application of the agreement, which I gave you in relation to 22.3. A couple of things, Commissioner, I need to draw your attention to, I think, in relation to the statement of Mr Blair, which is NUW2, if you could turn to that.

PN44

THE COMMISSIONER: Yes.

PN45

MR LYONS: Mr Blair is a delegate of the NUW and has been involved in the last two rounds of EBA negotiations. He is also one of the affected employees. He recounts in his statement the recent history of discussions in relation to this matter. And you will note that at paragraph 3 he indicates that soon after he became an NUW delegate, he was approached by the then distribution centre manager, and the request from the employer was to end the consecutive RDO arrangements. that is, the request from Mr Denmead at that time, wa sin identical terms to that which is pressed by the employer now.

PN46

He indicates in paragraph 4 that:

PN47

... the NUW, based on the instructions of its members, rejected that claim and that the management did not proceed further with the issue.

PN48

At paragraph 5 he then states that:

PN49

In 2002 the matter was again raised by - or following the appointment of the new distribution centre manager, a Mr Murray. And the NUW response was the same.

PN50

The final outcome of that was identical to when it had been raised by Mr Denmead, which was that the employer did not press its request to end the consecutive RDO arrangements. We then come, Commissioner, to the negotiations for the current agreement, or what is referred to as the 2003 agreement. I might say that his statement at paragraph 6, Commissioner, says:

PN51

Negotiations for the 2003 agreement began in October 2003.

PN52

I think that ought be 2.

PN53

THE COMMISSIONER: Two, yes.

PN54

MR LYONS: Given that the agreement was certified some time - or given that is still a date in the future. Mr Blair indicates that, part of the company log of claim was an end to the 10 week roster for RDOs, and he attaches some minutes of EBA meetings demonstrating that, which I will take you to in a moment. He then indicates the NUW, in the course of those negotiations, rejected that claim. And that the employer had dropped the claim by as early as November 2002, as is indicated by a further extract of the minutes.

PN55

If I can take you to those two attachments, Commissioner, attachment 1 is the minutes of meetings on 10 October, 2002, for the EBA discussions, and in the second page of that attachment you will see at paragraph 9, the company recording under the heading:

PN56

The Company Log of Claims was then presented as follows. Banking of rostered days off. Confirm current RDO practice into agreement, rolling fortnightly RDO maximum of two RDOs can be blocked at any time.

PN57

Of course, the rolling fortnightly RDO, Commissioner, is the employer's claim in relation to this matter, as opposed to the consecutive RDOs. The Commission turns to attachment 2, which is recording the outstanding issues that were between the parties some time later in the negotiations towards the end of November. The document is entitled, Doherty's Road EBA Negotiations 2002 Status as at 26.11.02. There is - and you will note that document starts to set out - by setting out the company claims. And does so on the first page of that document. And there is no reference to attempts to change either the hours of work or the RDO arrangements in that document.

PN58

So that we say that that collectively, Commissioner, is evidence of the following. First of all that the - in the period since the implementation of the 1993 agreement, the employer has always acted as if the proposition the NUW puts to you now, was its understanding of the way the agreement worked. This is not one of those circumstances, sir, where what is custom and practice is very much a live issue. It seems to be commonly accepted between the parties that no-one has ever been forced off this roster. The employer has always sought to change it by negotiation and agreement, and in fact went so far as to make it an EBA claim for the purposes of negotiation.

PN59

We say that weighs extremely heavily against a proposition now put to you, and now put to the union in negotiations tha tin fact they could have done it all along. It is not, in our submission, a reasonable approach to the facts to suggest that a company would claim something in an EBA negotiation, which it had a firm and determined view it could do anyway. It simply would have done that. It was not a matter of clarification of the agreement, it was a matter of substantive change, because the custom and practice of the site had been variation only by agreement. And on Mr Blair's evidence, successive distribution centre managers had approached this as if it were something to which the union and its members had to agree. Mr Denmead did that, Mr Murray did that, and the negotiation team for the 2003 EBA did that.

PN60

If I can turn, Commissioner, to our outline of contentions and make some observations about first of all the history of the relevant agreement provisions. The relevant hours of work provisions in these agreements since 1993, I think, have been reasonably evolutionary. That is, the wording has largely stayed the same with some very minor changes, most of which are not relevant to the determination of this matter. The provisions we would seek that you have some regard to, are in relation to the 1993 agreement, appendix A, clause 2, at page 13 of the document which I have provided to you, which sets out those matters which I have gone through in my submissions, which was that the rostering - first of all the persons were grandfathered in relation to the span of hours and hours of work.

PN61

And secondly, at roman C on page 14 of the extract, it sets out the first version of that clause, General Principles of Rostering, which the Commission would be aware from my previous remarks, remains in the agreement albeit in another form. And it was a product of those negotiations that the current consecutive RDO arrangements arose. Turning to the 1995 agreement, sir, we ask that you have regard to clause 31B, which is at page 19 of the print I have provided to the Commission. This is not a reference to the Hours of Work provision, which is largely the same, or relevantly the same, but there is a reference in this clause to what is entitled, Pre-Existing Practices. Paragraph A indicates that the employer is entitled to continue pre-existing work practices that occurred, provided they were in accordance with the award or with agreements between the parties.

PN62

Paragraph B is the reverse of that, if you like, which is the protection for the union and its members. It says:

PN63

Unless specified in this agreement nothing shall prevent or prohibit the union and its members from maintaining their rights in relation to pre-existing practices in the organising of work at the places of work covered by this agreement.

[10.25am]

PN64

So it is a savings clause, Commissioner, that says that unless - if we had a work practice or a right, unless it is specifically removed by the agreement, it continues. Now, importantly for what we say, Commissioner, that clause continues in the agreement to this day. It appears in the 1997 agreement as clause 7 and it appears in the 2001 agreement as clause 7 and it appears in the 2003 agreement as clause 7. So in relation to the - before I go to that, Commissioner, I will say, then, that the relevant provisions of the '97 and 2001 agreement in respect of hours of work is clause 21 which is in, relevantly, the same terms as clause 22 of the 2003 agreement.

PN65

And that is there has been essentially no negotiation, or no negotiated change between the parties in relation to those hours of work provisions since the 1995 agreement and for the purposes of this since the 1993 agreement. In relation to the outline of contentions, therefore, in relation to paragraphs 1 and 2 we say the following. What we have, Commissioner, is a 10 year custom and practice at the site supported by the specific text of the agreement which provides for 10 week rosters by agreement and protected by a savings clause. Moreover, we have a circumstance where the employer has consistently acted as if the proposition the NUW puts to you was correct.

PN66

While I understand that the Commission is required to determine this matter in relation to the text of the agreement and the surrounding matrix of facts I do wish to make some observations about the effect of these changes on the employees as they have asked me to do so, and this is part of the reason that they have been so keen to maintain. It will be very obvious, I think, from the Commission's experience that persons who are on rosters for long periods of time become extremely attached to those rosters and they further begin to arrange their own affairs on the basis of the rosters that they work.

PN67

These employees have been on this roster, as we say, for a decade and many of them have, in fact, rostered their family and other affairs on the basis of the hours of work provided to them by the company. From time to time they have been asked to change these and have declined to do so. They have informed the union that it would cause them great disruption to their personal arrangements in order for these to end.

PN68

Put against that we note that it is a large workforce, a large permanent workforce employed at the facility and that these employees are not engaged in one area alone, that is, they are not all in dispatch, sir, and you don't get a circumstance where 28 employees are all gone for a week at a time and there is nobody at all in that department, they are spread, both, across departments. And on my instructions the timing in which they take the RDOs during the 10 week cycle also varies. So we say that a change to these arrangements, except by agreement, would cause very great harm to the employees and no significant harm to the employer.

PN69

We further note that despite the fact that this agreement is only recently certified, that it does expire - or the parties will be in negotiation from early next year. The agreement itself expires on 31 July 2004, so less than a year away and the company is well within its rights to press its claim that it brings here at the renegotiation of the agreement. In relation to that we say that that is the proper way to do it because it is not, in our view, an acceptable approach to these matters to make a claim in EBA negotiations, resile from that claim, have the parties certify an agreement not including that claim and then seek to agitate that claim either on the job or before this Commission.

PN70

That is not conducive to good industrial practice and we say is generally contrary to the objects of the Act which provides for free and fair agreement making in that parties should abide by the agreements they make. My organisation is held to that standard rigorously by members of this Commission and employers and we expect no less that employers are held to the same standard. In relation to remedy, then, sir, what we say is the proper course for you to take is to make a determination that the employer is not able to require employees to move from the consecutive RDO roster without their agreement and we say determination in that form would dispose of the matter.

PN71

While we are confident, sir, that you will come with us on that I do make one observation in the event that my friend convinces you that we are in error on that. As I indicated at the start the RDO rosters are published very well in advance in relation to these proceedings. I have instructions from the employees involved that I think, as you would, sir, if you received an RDO roster one year in advance, many of them have plans for those days which they have rostered between now and the end of calendar year 2003.

PN72

In the circumstances, if you were to come against us we would ask that any determination you issue indicating the employer has a right to move people off that roster, that that determination would apply from the end of the current rostered period of RDOs. To do otherwise very severely disadvantages the current employees. We could lead evidence about that, Commissioner, but very briefly the sort of examples are people who either have study arrangements, pre-booked travel arrangements - or pre-booked and paid travel arrangements and things of these nature between September, October, November and December.

PN73

And no great prejudice is suffered by the employer on that basis, we say, but the alternative I think will be, Commissioner, that if what is put to you is accepted and it is simply the two week option we would then be in a position, I think, where there would be disputation at the site about individual persons with the union agitating with the employer about individual employee's particular reasons for not being able to do it within the period. So that the proper course, we say, in that circumstance would be the current roster period runs out notwithstanding, of course, that in the event the employer can convince or get agreement for an employee to go off that roster quicker then that can occur. Unless the Commission has any questions about what I have put I would leave the matter there.

PN74

THE COMMISSIONER: All right. No, follow all of that, thank you.

PN75

MR LYONS: If the Commission pleases.

PN76

THE COMMISSIONER: Ms Kaineder.

PN77

MS KAINEDER: Further to the first conciliation on 14 July, as has been outlined by my friend, Mr Lyons, the company and the union have furnished the Commission with an agreed statement of facts as well as both parties' contentions and the witness statements. I won't go through these, Commissioner, for the purposes of this morning but I will make reference to these throughout my submission. If it pleases the Commission, I would like to provide you with a brief submission which supports the company's position in relation to the dispute at the Doherty's Road Distribution Centre which was filed before the Commission on 4 July.

PN78

Very little actually remains at a dispute between the parties, as outlined by my friend, Mr Lyons, and as is agreed or is as outlined in the agreed statement of facts. The key issue for determination this morning is whether or not, pursuant to the certified agreement, the company can change the rosters in place at the site to alter the pattern on which the RDOs fall. The company submits that the certified agreement does not prevent it from making this change. By virtue of clause 22.3, as previously taken to from my friend, Mr Lyons, the current agreement which prescribes the general principles of rostering, the company is, in subsection part (1), indicates that the company does have the ability to change an employee's roster giving two weeks' notice.

PN79

There is no reference to the employee and the company making the change via mutual agreement. Therefore the company contends that provided two weeks notice is given the company is within their rights to alter an employee's roster via the RDO cycle. The union also claims in their statement of contentions that the agreement provides for a 10 week roster only by agreement. Commissioner, this is clause 22.3, subsection (3). The company agrees that this is correct and to date the employees who have been working this 10 week roster have mutually agreed to do so and some have been doing so for the 10 years that it has been in operation since the introduction of this provision within the agreement in 1993.

PN80

However, we are not proposing to require employees to work this 10 week roster or to cease this 10 week roster cycle as suggested by my friend, Mr Lyons, here. That is not an issue for the Commission before us today. The sole relevant restriction, however, lies within clause 22.1 which states that only employees employed after 1993 can be rostered the full span of hours which, as previously indicated, includes the Saturday. The union contend that by inference this means that pre-1993 employees cannot be rostered to work the full span of hours and was mentioned earlier as the grandfather clause.

PN81

The company does not comment on this contention and it is not relevant before the Commission today for this particular issue. However, clause 22.1 does not create any restriction on the company changing a pre-1993 employees roster in other ways. Even if the union's contention regarding the clause is true the company is not seeking to change or extend the hours upon which the employee works but simply on which days the RDO falls. Therefore, the company believes that the argument regarding the span of hours for this particular issue is irrelevant.

PN82

My friend, Mr Lyons, referred to, historically, the roster changes within the site at Doherty's Road and as such the change between the RDO cycle for the rotating RDOs has occurred by agreement. The company maintains that position, however, it does not alter the ability of the company to change the roster without agreement if required to do so. It is agreed that over the past few years the company has attempted to change the roster of these 28 employees whose rosters are the subject of the dispute before us today.

PN83

However, the issue as my friend, Mr Lyons, has indicated was not pursued vigorously until recently as different Distribution Centre Managers gave other issues higher priority at the relevant time and the roster change concerned was overshadowed by these changes. This is as outlined in Mr Blair's statement, reference NUW reference number 2. In any event any past changes or any unsuccessful attempts made by the company to change the roster in the way now sought is, again, not relevant to the dispute this morning as the ultimate terms and conditions and therefore the conditions under which such a roster change can occur are contained in the agreement as certified.

PN84

The union further claims that the company raised the issue of the changing of the RDO cycle within the EBA negotiations towards the end of last year in an effort for the company to ensure that to confirm the changes, or to confirm this practice within the EBA. The union relies upon the EBA meeting minutes and the statements of Mr Blair to this end. It is fair to say that the company has not pushed this in the past for the purposes of EBA discussions or to be clarified within the EBA negotiations as it has always been the belief of the company and based on the contents of the EBA that the roster change can be provided or can be made with two weeks' notice.

PN85

However, during the negotiations towards the end of last year, the company made the decision to raise the issue as part of the EBA discussions as an extension of the consultative process that we enjoy with the union. The aim was to clarify to the union that the company could, via the current agreement, make the necessary roster changes by providing two weeks' notice. Clearly, I think, as Mr Lyons had previously outlined, the company has had discussions with the union on several occasions and it is the company's position that the union was clearly understood and was aware of the company's position and the company's, really, ability to actually change the roster with the provision of two weeks' notice.

PN86

Furthermore, as previously outlined, the company made the decision to withdraw its claim along with numerous claims, as outlined in the minutes provided before, as essentially all the company was seeking was a roll-over deal during these negotiations and that we were able to make a roster change under the provisions of the current agreement and we would not seek to pursue this claim as it clearly confused the issue and the negotiations. But I must say that during the retraction of that claim it was made very clear to the negotiating team that the company was aware and understood that they could make this roster change but purely was simply raised as a point of clarification with moving forward as previously the company had, on numerous occasions, tried to change rosters or suggested to change rosters with the NUW and its members.

PN87

And it was clearly indicated to the company at that time as to what the union's opinion was with respect to changing that roster and, again, as I said, that the company made it clear as to the fact that we believe, clearly, within the guise of the EBA that we could make that change. Mr Lyons raised the concern with respect to the pre-existing practices as outlined in the '93, '95 and '97 agreements. We say that this does not prohibit the company from changing the roster as per clause 22.3 and we believe, as previously indicated, that the agreement, as certified, allows us that opportunity to change the roster given two weeks' notice.

PN88

Again, we are not trying to change the roster with respect to the span of hours but we are attempting to change the days on which the RDOs fall. Furthermore, with respect to the personal circumstances that my friend, Mr Lyons, outlined and the company's consideration of our employees' personal circumstances, previous when the company was at a point of introducing the change in roster employees were given - some 28 employees were given the three months' notice with respect to the changing of the roster which is, I would say, more than generous with respect to our ability to change a roster within two weeks. And there was opportunity to take into account personal circumstances during this change whether it be study commitments, medical reasons and so on.

PN89

However, again, as the company's position states, we do not waiver from the fact that the agreement, as certified, provides us with the ability to change an employee's roster within the two week notice period. Commissioner, on the basis of these brief submissions and the material that is currently before you today I request that you find that the Doherty's Road Distribution Centre Certified Agreement 2003 enables the company to change the roster of an employee on which an employee's RDO falls without first obtaining the consent of the employee. If the Commission pleases.

PN90

THE COMMISSIONER: All right. Just one thing before you sit down. Mr Lyons has put a proposition that if I am against the claim as such that I ought to consider implementing any change from the end of the current roster. Does the company have a view about that?

PN91

MS KAINEDER: I might just seek instruction if I may?

PN92

THE COMMISSIONER: Yes, certainly.

PN93

MS KAINEDER: Commissioner, I am instructed that this was part of an offer as per the first conciliation before you in July and that was rejected by the union.

PN94

THE COMMISSIONER: Okay. All right. I hear what you are putting in relation to all of that. Good, thank you.

PN95

MR LYONS: Okay, thank you.

PN96

THE COMMISSIONER: Mr Lyons.

PN97

MR LYONS: Thank you, Commissioner. Just two brief issues. First of all, I think we do seek to make clear, based on the response that was given, what our approach is to clause 22 and (i) and (iii). The proper approach for the Commission is that (i) is a general provision about rostering and other matters and (iii) is a specific provision about people on 10 week rosters. Now, the normal principle of construction is that, of course, that a specific provision overrides a general where there is any inconsistency and it is on that basis that we put - we urge you to adopt the interpretation we do.

PN98

Commissioner, we do have to make some observations, I think, about part of that submission which concerned essentially, in our view, an attempt to put some evidence from the bar table about positions put by the employer in the negotiations and what the intention of that was. It is not proper in these proceedings for that to be done in that way. There was an opportunity for evidence to be called to that effect about what was said in the meetings. The only evidence that is before you is Mr Blair's. The employer did not take the opportunity to cross-examine Mr Blair or to call Mr Denmead, Mr Murray or any of the persons from the employer who were present at the October and November EBA meetings.

PN99

In that respect, sir, we are firmly in Jones v Dunkel territory and you are entitled to draw an adverse inference on the basis that a failure to call the evidence in circumstances where that was available leads to the inescapable conclusion that what evidence that could have been given would not have benefited their case. So in that circumstance we do ask that you disregard that part of the submission of the employer that went beyond a proper submission and straight into the giving of evidence about the conduct and negotiations. The only evidence before you is Mr Blair's. If the Commission pleases.

PN100

THE COMMISSIONER: All right. Thank you. I intend to reserve my decision in relation to this matter. However, I will make arrangements to get an urgent copy of the transcript made available and, hopefully, the decision will be issued next week. The Commission adjourns on that basis.

ADJOURNED INDEFINITELY [10.47am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #NUW1 AGREED STATEMENT OF FACTS PN7
EXHIBIT #NUW2 STATEMENT OF G. BLAIR PN13