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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 10, 15 Adelaide St BRISBANE Qld 4000
(PO Box 13038 George Street Post Shop Brisbane Qld 4003)
Tel:(07)3229-5957 Fax:(07)3229-5996
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER RICHARDS
C2003/4517
SHOP DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION
and
BUNNINGS BUILDING SUPPLIES
Application under section 170LW of the Act
for settlement of dispute re redundancy of
truck drivers
BRISBANE
10.03 AM, FRIDAY, 15 AUGUST 2003
PN1
THE COMMISSIONER: Good morning, everyone; please be seated. Perhaps I could take some appearances, thanks.
PN2
MR L. GILLESPIE: May it please the Commission, Gillespie, L., for the Shop Distributive and Allied Employees Association.
PN3
THE COMMISSIONER: Thanks, Mr Gillespie.
PN4
MR J. DWYER: May it please the Commission, my name is Dwyer, initial J., of the Queensland Chamber of Commerce and Industry on behalf of the respondent company, Bunnings.
PN5
THE COMMISSIONER: Are you appearing alone?
PN6
MR DWYER: Instructed by Mr Justin Newman of Bunnings.
PN7
THE COMMISSIONER: Thanks, Mr Dwyer. Mr Gillespie, your application.
PN8
MR GILLESPIE: Commissioner, it is our intention in the first instance to advance our evidence. The respondent indicates to me that the evidence is largely uncontested; hence those employees who provided these statements are not in attendance today other than Mr Farmer who is merely here on the basis of an observer. I should like to hand up the originals of those statements, if I may.
PN9
THE COMMISSIONER: Good. Can I just get Mr Dwyer's view on that, just to confirm it.
PN10
MR DWYER: That's correct, Commissioner. As the matter progressed towards this point, consideration of the evidence of both parties was made by myself and by my client. It in fact appears that the bulk of the factual issues surrounding this matter are in fact agreed, in fact, substantially agreed, from our perspective and it may assist you if I provide a short opening address at the commencement of our evidence. It is really a matter that turns on a point of interpretation in relation to acceptable or alternative employment. The factual evidence that has been provided certainly by the applicant in this particular case is not contested. There are some exceptions. There is a couple of paragraphs which we've asked to be struck from the applicant's affidavit material and we could probably address those now if you like, Commissioner.
PN11
THE COMMISSIONER: Well, that would be helpful. Mr Gillespie, is that the way you were going to go - proceed?
PN12
MR GILLESPIE: Yes, I was - my next remarks were going to relate to those two relevant - - -
PN13
THE COMMISSIONER: Yes, I'm in your hands then.
PN14
MR GILLESPIE: Yes. I draw to the attention of the Commission the statements of Christopher Ronald Ketter which is the uppermost statement and specifically paragraph 9 of that statement on the second page. We acknowledge that there is an element of hearsay involved in that paragraph and it would be our intention not to place any reliance upon that paragraph, and accordingly, we would withdraw any reference to that particular paragraph, if the Commission pleases.
PN15
THE COMMISSIONER: Thanks, Mr Gillespie.
PN16
MR GILLESPIE: In relation to the statement of Darryl Walter Schiffke which is the second last statement in that group, the respondent has drawn to my attention that there is an element of difficulty with the facts of Mr Schiffke's place which casts a degree of doubt upon the eighth paragraph of that statement. Accordingly, so as to facilitate this process, we are happy to place no reliance upon that particular paragraph and to withdraw that element of the statement, and that, Commissioner, is the evidence of my organisation.
PN17
THE COMMISSIONER: Just quickly to Mr Dwyer again, Mr Dwyer, do you confirm that that is consistent with your understanding of the amendments to the witness statements by the applicant?
PN18
MR DWYER: That is correct, Commissioner. If those particular passages within those two witness statements are removed, the respondent consents to those statements going into evidence and will not require those witnesses for cross-examination in this matter.
PN19
THE COMMISSIONER: Good, thanks, Mr Dwyer. This is probably convenient for you to - do you want to at this point take me through what was going to be your opening statement? Does that go to some facts in common, or do you want me to - - -
PN20
MR DWYER: Yes, Commissioner, if it is of assistance to you, I might - - -
PN21
THE COMMISSIONER: I will just check; Mr Gillespie, would that be convenient for you if I took that element of the respondent's submissions at this point?
PN22
MR GILLESPIE: That is suitable to us, Commissioner.
PN23
THE COMMISSIONER: Good, thanks, Mr Dwyer.
PN24
MR DWYER: Thank you, Commissioner. Commissioner, when this matter was last before you it was envisaged that these proceedings would take some two days, and the matter was set down for that period of time. At that time the instructions, or the respondent's understanding of the roles of the drivers who are the subject of these proceedings was that the bulk of their work certainly consisted of driving duties, but there were other parts of their employment which extended beyond those duties.
PN25
Upon further consideration and discussions with the relevant line managers or the supervisors in these particular yards, it is conceded that the drivers in this particular case were in fact just that; they were engaged for the bulk of their period of employment of for the bulk of their time as employees in duties that were associated wholly and solely with delivering goods in company vehicles, that is to say they were drivers.
PN26
Having conceded that point, Commissioner, it really then became a question of - it really became evident to the respondent that the facts in this particular matter were largely agreed. And those facts, in short summary, are that the company has over the last 12 months or so been preparing and implementing a restructure of its delivery services from its various stores in South East Queensland. The delivery services were previously provided by employees who were employed under the Grade 2 classification of the relevant agreement, and as part of that classification their duties could and did include driving or delivery of goods.
PN27
THE COMMISSIONER: Mr Dwyer, can I just stop you there?
PN28
MR DWYER: Yes.
PN29
THE COMMISSIONER: Just very quickly; so it is the case that all of the drivers concerned fall under Grade 2?
PN30
MR DWYER: There is one exception, Commissioner, and that is, as I understand, Mr Farmer.
PN31
THE COMMISSIONER: Yes.
PN32
MR DWYER: And he is in fact Grade 3. There is - the distinction between Grade 3 and Grade 2 classifications, in terms of the duties or the broad range of duties that are contained in Grade 2, the distinction is that those duties are also incorporated into Grade 3, but there are some supervisory duties that apply to a Grade 3 level employee as well. For today's purposes, it is a fair representation to say that both Grade 2 and Grade 3 contain a broad range of duties which can be - or which are - which make up the duties of an employee at that level under the agreement.
PN33
THE COMMISSIONER: Right. So we are talking - just, again, we are just establishing facts?
PN34
MR DWYER: Correct.
PN35
THE COMMISSIONER: The point is then that we are - the agreed position is - and I look to Mr Gillespie to confirm it - is that it is useful for us - it has practical value for us to refer to the drivers as being covered by Grades 2 and 3/Grades 2 and 3; nothing would turn on that.
PN36
MR DWYER: No, that would be an efficient way to deal with it, Commissioner.
PN37
MR GILLESPIE: That has been the case, Commissioner, and while I have the opportunity, just for your edification, I might hand up a copy of the agreement which is tabbed at the appropriate point to illustrate the grades and the classifications.
PN38
THE COMMISSIONER: Thanks, Mr Gillespie. Seeing you are handing that up, we might call that A1 as a consequence, thank you.
PN39
THE COMMISSIONER: Sorry, Mr Dwyer.
PN40
MR DWYER: Thank you, Commissioner. As part of the implementation of the - or as part of the consideration of the company's delivery services it was ultimately determined that from a cost effective approach these services could be, in the case of some stores, better provided by contracted delivery drivers, and having reached that conclusion the company then sought to implement those changes in the workplace.
PN41
Part of these changes necessarily involved the redeployment of persons who had previously been engaged wholly and solely in the role as delivery drivers into roles within the various yards at which they had been previously based as drivers. Their duties in these redeployed roles were consistent with the duties applicable under Grades 2 and 3 under the agreement, and in fact the bulk of the 20-odd drivers affected went across to these roles with no particular difficulties in terms of the change in their duties.
PN42
The matter comes before you today because four of those drivers - or four of the drivers affected in this restructure have, through their union, sought to have the company's discontinuation of their role as drivers classified as a redundancy, and ultimately they seek the termination of their own employment on those grounds. The company's position and the evidence of the company will be that after due consideration of the broad nature of the classification, and the skills and experience of these particular employees the company is more - is more than prepared to continue the employment of these employees in redeployed roles within the yard in which those employees were previously based as drivers, and in roles that are consistent with the award - the agreement under which they are employed.
PN43
Unless Mr Gillespie wants to correct me, as I understand it, the main and the only disagreement between the parties and the disagreement with which we come to you today and seek the Commission's assistance, is whether or not the redeployment of these drivers might constitute acceptable alternative employment.
PN44
Commissioner, I'm mindful of the fact that the matter is before you today for arbitration on a dispute which was lodged by - notified by the SDA. The matter is not before you as an application for variation of the agreement or the award where the employer might be seeking exemption from their obligations to pay redundancy. Certainly in our view because the matter is before you as arbitration on a specific dispute, the outcome that can be achieved today really will be an expression of the Commission's view after consideration of the facts; an expression of the Commission's view as to whether or not this redeployment might constitute acceptable alternative employment or not as the case may be.
PN45
And depending on the Commission's view in those circumstances, the company will then need to consider its planned redeployment of the four drivers in question. The evidence that will be before you today, Commissioner will, in our submission, satisfy you that in all of the circumstances the redeployment of these drivers would constitute acceptable alternative employment and in those circumstances there would be no entitlement to redundancy.
PN46
Of course, our primary argument, I should point out, Commissioner, is that this in fact does not constitute a redundancy within the meaning ascribed to that term in the certified agreement, and I'll take you to that evidence throughout the course of the proceedings today. It's really quite a simple case. At the end of the day, Commissioner, it's really a question of considering the facts in this particular case in light of the precedents that the Commission will have the benefit of hearing today and determining whether in the facts of this case the employment which is proposed for these drivers in the yards and their respective stores would constitute acceptable alternative employment.
PN47
THE COMMISSIONER: Thanks, Mr Dwyer. Mr Dwyer, I do have a question for you and it will be also one that I'll require a response from Mr Gillespie on, and that is for the Commission's purposes there are two related jurisdictional thresholds through which it must pass, if you like, before such a time as it can in effect deal with the application as before it. Now, what the Commission has before it is an application under Section 170LW of the Act. For purposes of establishing agreed positions and facts in relation to this matter, those two threshold matters concern, (1) Section 170LW of the Act which empowers the Commission to deal with - should it be so empowered, and I'll come to that shortly - which empowers the Commission to deal with disputes in relation to the application of the agreement. That is the first jurisdictional threshold.
PN48
And the second jurisdictional threshold is whether or not the dispute settling clause in the BBC Hardware Agreement 2001 - sorry, the BBC Hardware Certified Agreement 2001 is a clause that contained an express provision for the Commission to in fact not only conciliate, which it has previously done, but also to empower it to settle a dispute over the application of the agreement by way of what the High Court has deemed to be a private arbitration power, given that the only powers the Commission has for the purpose of dispute settling in relation to a clause over the application of an agreement is a power of private arbitration vested in it by the party by virtue of the grievance clause.
PN49
Now, I presume, and correct me if I'm wrong - I'm presuming on both those threshold jurisdictional issues that they're uncontested.
PN50
MR DWYER: From our perspective that's correct, Commissioner.
PN51
THE COMMISSIONER: Good. Thank you. Well, that's your - Mr Gillespie, I presume there's no issue, then, in that regard.
PN52
MR GILLESPIE: Certainly our position, Commissioner, and it is certainly our view that Section 170LW has been invoked to a considerable extent by now at this point in time. But the final conclusion of it, of course, will be an arbitrated outcome pursuant to Clause 8.8(d) of the agreement, and that would be the outcome that we seek.
PN53
THE COMMISSIONER: I therefore accept the submission of the parties that there is no jurisdictional hurdle to the Commission determining this matter as a consequence. Mr Dwyer, you can go on now. We've established that as agreed fact and I don't have to explore that.
PN54
MR DWYER: Yes. Thank you, Commissioner. We have two witnesses in these proceedings, Commissioner: Mr Justin Newman, who is the national industrial relations manager with Bunnings Building Supplies Proprietary Limited, and Mr Rodney Brett Kaust, who is the state operations manager for Queensland for the same company. I propose to call Mr Newman to provide evidence first. Just bear with me one moment, please, Commissioner. Thank you, Commissioner. If I may call Justin Newman to give evidence.
PN55
MR DWYER: Thank you, Commissioner. Before I proceed, Mr Kaust is in the room as well. Is there any requirement by the applicant for him to leave the room?
PN56
MR GILLESPIE: I don't have a problem with Mr Kaust's presence, Commissioner.
PN57
MR DWYER: I'm not insisting on it but perhaps maybe as a matter of protocol he probably should.
PN58
THE COMMISSIONER: I think that whilst there is no objection, Mr Gillespie, I think for the sake of caution and nothing else, it would be best if he does not hear the evidence given in this matter at this point.
PN59
MR DWYER: Thanks, Commissioner. Could you state your name and title for the record, please?---My name is Justin Peter Newman. I'm the regional employee relations manager.
PN60
And have you prepared a statement in relation to these proceedings?---Yes, I have.
PN61
If the witness could see a copy of this document, Commissioner?
PN62
THE COMMISSIONER: Are you tendering that as well, Mr Dwyer?
PN63
MR DWYER: I am, Commissioner. I'll just have the witness identify it and - - -
PN64
THE COMMISSIONER: All right, sorry, I'm ahead of myself.
**** JUSTIN PETER NEWMAN XN MR DWYER
PN65
MR DWYER: Mr Newman, is that a copy of the statement that you've prepared in relation to these proceedings?---Yes, it is.
PN66
Yes, I tender that, thank you, Commissioner.
PN67
PN68
MR DWYER: Commissioner, it's not my intention to lead any further evidence from Mr Newman, except for two documents which I filed by way of - as part of our rebuttal process. I understand that was with the consent of the applicant some two weeks ago I think it was. For the purpose of just getting the documents in and identified by Mr Newman, I thought I might tender those documents now. I'll just have him identify them. I don't intend to ask any questions in relation other than to ask him to identify it.
PN69
THE COMMISSIONER: Good, thank you.
PN70
MR DWYER: If I could tender this document, please.
PN71
Mr Newman, could you just please identify this document?---It is a document that sets out the purpose of position. It's headed Driver, and it's signed by Mr Cyril Farmer and it sets out key result areas, standards of behaviours.
PN72
Is there a second document included in that bundle?---That is correct. The second document is headed Rules of Conduct, Forklift Drivers.
**** JUSTIN PETER NEWMAN XN MR DWYER
PN73
Yes, can you tell us the origins on this document?---This document, as I recall, was provided to me by the manager at Booval. That's the store in which Mr Farmer works.
PN74
Thank you. I tender that document, Commissioner.
PN75
THE COMMISSIONER: We'll refer to both documents together as R2.
EXHIBIT #R2 DOCUMENT HEADED 'DRIVER' AND DOCUMENT HEADED 'RULES OF CONDUCT, FORKLIFT DRIVERS'
PN76
MR DWYER: Thank you, Commissioner, that's the evidence-in-chief.
PN77
PN78
MR GILLESPIE: Mr Newman, may I ask you to address paragraph 4 of your statement where you say that:
PN79
Team members at these stores are not employed in specific positions but employed to perform a range of duties as required.
PN80
I ask you to address the five employees who have filed evidence in respect of this matter, and I take it you have read their statements. Is that the case?---Yes, I have.
PN81
Indeed, thank you. Are these people not fundamentally truck drivers?---The significant - as I understand, a significant percentage of their time is spent driving trucks and delivering goods.
**** JUSTIN PETER NEWMAN XXN MR GILLESPIE
PN82
Would this not be the overwhelming proportion of their functions?---The position, with respect to the duties they perform, as I understand it, is yes, it is a significant part of it.
PN83
Mr Kaust said in paragraph 14 of his statement - and I take it that you've read Mr Kaust's statement?---Mr - - -
PN84
Kaust, I beg your pardon, my - - -?---Oh, sorry, Mr Kaust. Yes, I do apologise, yes.
PN85
My pronunciation wasn't the best?---No, sorry.
PN86
I'm sorry, I apologise for that. At paragraph 14 - and I'll read this out to you, just for your edification - Mr Kaust said:
PN87
Notwithstanding the broad nature of the duties under grades 2 and 3, it is conceded that the employees were primarily occupied as drivers although they did perform some duties incidental to driving from time to time.
PN88
Do you agree with that statement?---Yes.
PN89
How frequently would these drivers be called upon to fulfil the roles of salesperson, cashier, clerical assistant, yard person, delivery driver, order person, storeperson, security person, meet and greet person - you'd recognise all of those roles as being a component in clause 3.2 of the agreement, wouldn't you?---Yes.
PN90
How frequently would these drivers be required to fulfil those roles?---I couldn't say how frequently. From time to time they might be called upon to perform aspects or certain parts of those positions though.
**** JUSTIN PETER NEWMAN XXN MR GILLESPIE
PN91
They would be very incidental though, wouldn't they?---Oh, that's correct.
PN92
And how frequently would they be called upon to perform the role of senior salesperson/store clerk?---Again, not frequently.
PN93
Very incidentally, would you agree?---Yes.
PN94
When we look at these roles in 3.2 and 3.3, does the company regard all of those roles as totally interchangeable?---I'm uncertain as what you mean by interchangeable.
PN95
Well, would it be reasonable to say that on any given day of the week or at the commencement of any given week, a grade 2 or grade 3 employee would go to work not knowing what functions they were going to be required to do for that week?---No.
PN96
So they'd know of a certainty what functions they were going to be required to perform, wouldn't they?---Yes, they may - yes.
PN97
So in other words, they are consigned to circumscribed duties, aren't they?---From time to time they are given duties to perform, yes.
PN98
How frequently would these variations occur?---It could vary between team members. Some team members would perform a significant part of their time in a particular duty; others may perform a variety.
PN99
Would it be reasonable to expect say a yardperson to be taken off stream in that area and put on a checkout?---Yes. Not frequently.
**** JUSTIN PETER NEWMAN XXN MR GILLESPIE
PN100
Does it happen?---Yes, it does.
PN101
But not frequently?---It may not occur frequently but it certainly does occur.
PN102
Would it be usual to find a security person seconded to perform sales?---It could be.
PN103
But it doesn't happen in practice, does it?---Yes, it could.
PN104
Yes, but does it?---Yes.
PN105
You know that for a fact?---I couldn't give you an individual instance, but certainly if there was a shortage of staff by way of example it could be necessary for a security person to perform sales functions, yes.
PN106
But that would be only on an incidental basis, wouldn't it?---In most instances it would be on an incidental basis, yes.
PN107
Is it the reasonable expectation of these grade 2 and grade 3 employees, that their duties do not change on a frequent basis?---That would be reasonable, yes.
PN108
MR DWYER: I have to object to that question. Mr Gillespie is asking Mr Newman to answer what the reasonable expectations of an employee might be.
PN109
THE COMMISSIONER: Thanks, Mr Dwyer. It's the classic issue about putting the witness in the position of someone who is not here.
**** JUSTIN PETER NEWMAN XXN MR GILLESPIE
PN110
MR GILLESPIE: I take that point, though - - -
PN111
THE COMMISSIONER: That's all right. You can elicit the same view from a different question, I'm sure, Mr Gillespie.
PN112
MR GILLESPIE: Indeed, I shall, Commissioner. I take that point. Indeed, I shall.
PN113
Is it the company's expectation that people employed at grade 2 and grade 3 level have their duties chopped and changed from week to week?---No.
PN114
Or from month to month?---Not chopped and changed.
PN115
Or from year to year?---No.
PN116
So they're appointed to a given position, say salesperson, yardperson, driver, and that's their position, isn't it?---No.
PN117
But that's the function that they will continue to perform on an indefinite basis, isn't it?---No, they perform - that may be a primary duty but they may be required to perform a variety of the duties set out there in the course of that.
PN118
If they are so called away, it would only be on an incidental basis, would it not?---In some instances.
PN119
Can I suggest that that would be in every instance?---No. There are team members who would perform a variety of the duties set out here on a regular basis.
**** JUSTIN PETER NEWMAN XXN MR GILLESPIE
PN120
Does that apply to the truck drivers?---Not in this particular - not if you refer to the individuals in this matter.
PN121
So these individuals in this matter would not be expected to leave their truck in the yard and take up a checkout on any given day of the week. Is that correct?---Well, I wouldn't say it's not expected. If that was the need of the business then they may be.
PN122
In a practical sense, how frequently would something like that occur?---It would be incidental.
PN123
Incidental?---Oh, sorry, not frequently.
PN124
You'd know the capacities of these truck drivers, wouldn't you?---I'm aware of them, yes, to some degree. I don't know them personally.
PN125
Do you think it's a reasonable expectation that Mr Farmer or Mr Schiffke or any of these five drivers should be removed from their trucks and asked to take up a checkout?---Yes.
PN126
Have they been trained in the operation of a checkout?---I don't know personally if they've been trained in the operation of a checkout but appropriate training would be provided if they had not been.
PN127
These are people who haul vehicles of a gross vehicle mass of anything from 12 to 20 tonnes around on a regular basis. Does that role seem consistent with that of a salesperson or a checkout operator?---Yes, it could. The nature of the work in the store is they may need to perform various duties.
PN128
In the aptitudinal sense, do you think it's reasonable to expect that a truck driver should be asked to come off the truck equipped with a Hi-AB, a 15 or 20 tonne vehicle, gross vehicle mass, and be asked to summarily go and operate this checkout for a week?---Yes.
**** JUSTIN PETER NEWMAN XXN MR GILLESPIE
PN129
You think that's reasonable?---Yes.
PN130
MR DWYER: I don't think that's a fair question, Commissioner. Mr Gillespie seems to be suggesting that they will summarily be required to work a checkout. Mr Newman has already given evidence that they would be provided with appropriate training if that was required.
PN131
THE COMMISSIONER: Well, that is the evidence. Sorry, what is exactly the nature of your objection again, Mr Dwyer?
PN132
MR DWYER: The question contains a misrepresentation of evidence that's already been given by Mr Newman. The question put to him by Mr Gillespie was would they be summarily required to operate a checkout. He had been previously asked a question of a similar nature about whether they had the skills to perform that work and Mr Newman's answer was appropriate training would be provided if it was required.
PN133
THE COMMISSIONER: Well, yes, I do have that in my notes here. I'm just wondering. The issue really isn't the inappropriateness of the question as such; it's the issue of whether or not the witness would like to have the question addressed to him again and upon a proper consideration re-present his statement.
PN134
MR DWYER: Thank you, Commissioner.
PN135
THE COMMISSIONER: So, Mr Gillespie, my point is, can you take the witness back through that question again.
PN136
MR GILLESPIE: I will.
**** JUSTIN PETER NEWMAN XXN MR GILLESPIE
PN137
THE COMMISSIONER: And we'll see what we get.
PN138
MR GILLESPIE: I think we'll rule a line under it, Commissioner.
PN139
Does the company - - -
PN140
THE COMMISSIONER: Could we just clarify what that means?
PN141
MR GILLESPIE: Well, I'm going to do - I will withdraw that element of questioning and start afresh.
PN142
THE COMMISSIONER: Good.
PN143
MR GILLESPIE: Does the company, on a regular basis, require truck drivers to work in other disciplines?---Not on a regular basis.
PN144
It is the intention of this company, is it not, that these drivers be redeployed to other functions?---That is correct.
PN145
And some, indeed, have been?---Yes.
PN146
What will be the company's course of action if these truck drivers fail to show aptitude in their redeployment destinations?---They would be - they would be trained and we would seek to manage that appropriately.
PN147
You've heard of the expression "square pegs in round holes," have you not?---Yes.
**** JUSTIN PETER NEWMAN XXN MR GILLESPIE
PN148
Is that not an appropriate parallel for the instant case?---No, it is not.
PN149
Would their employment be placed in jeopardy if they fail to show aptitude in their redeployment destinations?---I don't believe so.
PN150
If they consistently fail to perform, what would be the company's reaction?---We would seek to manage that performance.
PN151
On the basis of counselling; would that be the case?---I would say in the first instance we would seek to train them and to address whatever the problem might be.
PN152
Had it occurred to you that some people might never demonstrate a capacity to be a check-out operator or a yard person?---I don't believe in this instance, no.
PN153
So it's never occurred to you that there might be a lack of aptitude on the part of these truck drivers?---I believe these drivers are able to perform those duties.
PN154
How can you say that with certainty?---Well, I guess you can't say anything with certainty, but it is my understanding that they do perform a part of these duties currently.
PN155
This attachment to your evidence, which comprises a document that outlines the functions of a driver: do you have that in front of you?---I don't, no.
PN156
Can the witness be provided with a copy of that document, please, Commissioner?
PN157
Would you regard a truck driver as being an ambassador at large, a company image person?---As is any team member.
**** JUSTIN PETER NEWMAN XXN MR GILLESPIE
PN158
Any truck driver who works for any firm, would you agree, would need to be able to reflect that firm's orientation towards good customer service?---Yes.
PN159
Wouldn't you agree that all of the contents of this document that outline the functions of driver are consistent with what a good driver should do towards that end and purpose?---Yes.
PN160
Part of the normal course of events; par for the course for a truck driver. Would you agree?---Do you mean doing those things here?
PN161
Yes, doing those things here?---Yes.
PN162
So any company employee would be required to exhibit these capacities?---Yes.
PN163
Do you think that there are any special relationships a truck driver should foster with the company's clients?---No more than any other team member with any other customer, no.
PN164
What, to your knowledge, is the extent of Mr Farmer's use of a forklift?---I don't know.
PN165
Do you agree that it would be possible that he would use a forklift to load his truck?---Yes, it is possible.
PN166
I ask you to address paragraph 8 of your statement, Mr Newman?---Yes.
PN167
In that, you address what you refer to as the parent award. No doubt you are referring to an agreement which was processed as a consent award in the first instance. Is that what you're referring to?---Yes.
**** JUSTIN PETER NEWMAN XXN MR GILLESPIE
PN168
And you refer to the objective of the agreement and role of the parties, and placitum 4, placitum 4, immediately under paragraph - - -?---Yes.
PN169
You talk about:
PN170
...willingly accepting total flexibility of jobs and duties throughout the store -
PN171
and it goes on. Does such a prescription appear in the current BBC agreement?---I don't believe it does.
PN172
May I ask you to look at paragraph 11 of your statement?---Yes.
PN173
And I ask you to - I'll just read these words for you:
PN174
I also stated we were having discussions with team members performing deliveries and asked them to consider what kind of duties in the stores they would prefer.
PN175
Was it your intention at that point in time, and does it remain your intention, to offer these people a choice of roles?---No.
PN176
So that being the case, then, the intention that you expressed at that point, which is alluded to in paragraph 11, has been abandoned?---No, that's not correct.
PN177
Well, a choice of roles, what kind of duties: you're going to ask them what kind of duties they wish to perform. I just asked you do you intend to offer them a choice of roles and you say no?---The continuation of that states:
**** JUSTIN PETER NEWMAN XXN MR GILLESPIE
PN178
...so their views could be taken into account in any future redeployment.
PN179
Are we to understand, then, that their views won't necessarily influence the outcomes?---Well, their views would be taken into account.
PN180
But would not necessarily be totally accommodated?---Not necessarily, no.
PN181
THE COMMISSIONER: Sorry, Mr Gillespie. Could I just ask you one question, and equally so to the witness. The reference to the award that was cited at paragraph 8 of the witness's statement: what is the title of that award?
PN182
MR GILLESPIE: That would have been the title of it, I believe, Commissioner: the BBC Hardware Limited Agreement - - -
PN183
THE COMMISSIONER: Oh, so that is in fact the title.
PN184
MR GILLESPIE: Yes.
PN185
THE COMMISSIONER: So it was processed as a - sorry, can you just give me - - -
PN186
MR GILLESPIE: I was surmising to an extent. Because of the fact that Mr Newman referred to it as an award, as a parent award, if it were an award, it would need to have been a consent award.
PN187
THE COMMISSIONER: It's confused me as well. I don't have it, and it's not going to be tendered today, I presume.
**** JUSTIN PETER NEWMAN XXN MR GILLESPIE
PN188
MR GILLESPIE: I don't have it either with me, but it's not a pivotal point. It's not a pivotal point anyway, Commissioner. The principal factor I was endeavouring to draw out was that the prescription in placitum 4 that appears in that document does not appear in the current document, and we've established that that's the case.
PN189
THE COMMISSIONER: Yes. Is it the case, then, that if that isn't an award and that clause exists in the award and there's no similar clause in the current agreement, that that clause is therefore of no significance to this matter?
PN190
MR GILLESPIE: Well, there would have been - there would have been - there was a practice that evolved in the early stages of enterprise bargaining in the retail industry where awards were still a viable prospect where the agreements were processed as consent awards. We can't do that any more because of the allowable matters factors. Whether that was the case with this one, I'm not sure. I just noted the usage of the word "award" and assumed that that had been the case. But in all events, it's no longer a prescription because it doesn't appear in the current agreement.
PN191
THE COMMISSIONER: Okay. Thanks, Mr Gillespie.
PN192
MR GILLESPIE: Now, Mr Newman - - -
PN193
THE COMMISSIONER: Sorry, Mr Gillespie, can I just satisfy my curiosity again on this matter. So when this agreement was certified - forgive me if I'm just distracting you momentarily. When this agreement was certified, what was the relevant award for purposes of certification?
PN194
MR GILLESPIE: Well, had I been pursuing the certification, I would have said Retail Industry Interim Award State, but I had no hand in that because it was obviously the operatives in our national office who performed that function.
**** JUSTIN PETER NEWMAN XXN MR GILLESPIE
PN195
THE COMMISSIONER: I suppose I can go back and find the transcript and the file. Mr Dwyer, do you have any recollection?
PN196
MR DWYER: I'm just attempting to - I wasn't involved at that point either, Commissioner.
PN197
THE COMMISSIONER: 17 April 2001 was the date of certification. Sorry. That would enable me to track down the award itself.
PN198
MR GILLESPIE: Commissioner, I can check.
PN199
THE COMMISSIONER: But then again I see at page 4 of the agreement at 1.3(d) it states:
PN200
The parties will recognise the BBC Hardware Limited Agreement 1995 as the parent award.
PN201
So clearly there must have been submissions that that agreement was an award for purposes of this Act for purposes of the no disadvantage test.
PN202
MR GILLESPIE: On that basis, then, it must have been a consent award.
PN203
THE COMMISSIONER: Yes, a creature that doesn't exist under the new Act but one that the transitional provisions would have picked up, I presume. An interesting issue. Nonetheless, sorry to have distracted you. It has some relevance, I think, but it has clarified something. Thank you, Mr Gillespie.
PN204
MR GILLESPIE: Mr Newman, I take it that you've read the statements of Messrs Farmer, Bartsch, Botteriell, Schiffke and Glass?---Yes.
**** JUSTIN PETER NEWMAN XXN MR GILLESPIE
PN205
Did you note that they have been employed by BBC and more latterly Bunnings for periods ranging from eight to 13 years?---Yes.
PN206
Did you note that they were all engaged as truck drivers in the first instance?---I note that that was in their statements, yes.
PN207
And did you note that apart from incidental instances, that has been their sole function?---I again note that was in their statements, I believe. I can't quite recall.
PN208
Well, the usage of such phrases as, "I've been a truck driver and that's all I've ever done - - - "?---Yes, I believe that was in the statements.
PN209
Something to that effect. It was a general thrust of that nature. Would you agree?---Yes.
PN210
Yes. Do you agree that all five of those persons rightfully describe their calling as that of truck driver?---I agree that they describe it that way and that was their primary duty, yes.
PN211
Would you describe somebody who drives a truck every day of their lives as a truck driver?---You could for the purposes of identification. You could describe them in that manner.
PN212
How else would you describe them?---Well, you could alternatively have referred to them by their grade or an employee or a team member or something like that.
PN213
Are you aware that there are statutory qualifications required to drive vehicles of a certain tonnage?---Yes.
**** JUSTIN PETER NEWMAN XXN MR GILLESPIE
PN214
Would everybody currently employed at grade 2 and grade 3 under the BBC Agreement possess the necessary statutory qualifications, in other words the licences, to drive the vehicles that have been driven?---I wouldn't have thought so.
PN215
Would you agree that there would have been an extreme minority of people who would find the need to secure such licences?---Yes.
PN216
The average person, would you agree, would hold only an open licence for the purpose of driving a conventional motor vehicle, would you agree?---Yes.
PN217
How, then, is the function of truck driving interchangeable amongst all of the employees at grades 2 and 3?---It may not be if there were statutory requirements, but there are other duties there that would be.
PN218
Would you agree that, for example, at Nerang there are only two people who can be consistently relied upon to drive trucks?---I don't know. I'm not familiar enough with all employees at Nerang.
PN219
Do you agree that to redeploy truck drivers to these other functions in levels 2 and 3 is a radical change of their working lifestyle?---I agree it's a change from the duties they've been performing to date, yes.
PN220
Mr Kaust in paragraph 17 places in one of his statements - concedes that the roles in the yard that are proposed are vastly different from truck driving. Would you agree?---I wouldn't disagree if that's what Mr Kaust has stated.
PN221
You have read his statement, I take it?---Oh, that's correct.
PN222
Do you recall that reference?---Yes, I do.
**** JUSTIN PETER NEWMAN XXN MR GILLESPIE
PN223
I ask you to address paragraph 28 of your statement. Now, may I read that in full:
PN224
At the time of writing the letter it was unknown as to whether we would be able to provide these team members with other duties within their stores and as such I included the reference to alternative employment and severance entitlements.
PN225
So you did mention the prospect of notice and severance entitlements, didn't you?---I made reference to it in the letter, yes.
PN226
So why would you make reference to it?---As I set out in paragraph 29, it was included - set out what may occur in the event that we were unable to provide these team members with on going employment as team members performing a variety of duties.
PN227
Would you agree that for these truck drivers an expectation of notice and severance would have been created by that reference?---No.
PN228
You don't?---No.
PN229
Would you agree that a person who drives a truck for the greater part of their - for all of their working life with this company - with these companies who is proposed to be redeployed to the function, say, of a yardman would have a reasonable expectation of being compensated for the loss of their vocation?---No.
PN230
If Bunnings puts into effect to the final extent its intention to out-source its delivery functions, isn't it the case that you will have effectively resumed the functions of truck driving from your company establishment?---Sorry, did you say resumed or - - -
**** JUSTIN PETER NEWMAN XXN MR GILLESPIE
PN231
If - I'll say again. If the company puts into final and full effect its intention to out-source its delivery function won't the effect have been that you have removed positions of truck drivers from the staffing establishment?---We'll still have deliveries made.
PN232
Yes, but you no longer have company staff who effect deliveries?---In this instance, that would be correct.
PN233
You no longer require the job to be done by anybody who works for the company. Is that correct?---Anybody employed you mean?
PN234
Yes. Anybody employed by the company?---Yes.
PN235
That's a redundancy, is it not?---No.
PN236
How would you define a redundancy?---The agreement itself defines - as I recall, defines redundancy.
PN237
Redundancy applies where BBC Hardware has made a decision that it no longer wishes the job the employee has been doing to be done by anyone.
PN238
That's 7.13 subclause (c). Isn't it the fact that the company no longer requires the job of truck driving to be done by anyone?---No.
PN239
Is it a fact that the company no longer requires the job of truck driving to be done by anybody who works for the company?---In those instances, yes.
PN240
Is that not a redundancy?---No.
**** JUSTIN PETER NEWMAN XXN MR GILLESPIE
PN241
Why is it not a redundancy?---Because the job is still required to be done.
PN242
By whom?---By others. It would be a change to how the job was done.
PN243
Others. You say - - -?---But the job is still required to be done, though. It would still - - -
PN244
Who are these others?---They would be in this particular instance contractors, as I understand it.
PN245
They don't work for the company as employees, do they?---No.
PN246
This agreement, is it not, is executed between your company, or your predecessor company, the employees and the SDA. They're the parties, aren't they?---Yes.
PN247
Do you see in the application clause any reference to any outside contractors?---I don't believe there is any.
PN248
No, of course there's not. So they don't work for the company, do they?---They're not employees of the company, no.
PN249
No. So you did not require this job to be done any more by people who work for the company, did you?---Not who were employees, no.
PN250
It's a redundancy, isn't it?---Again, I say no.
PN251
Are you trying to convince the Commission that these jobs remain extant on the company establishment because a contractor is doing them?---I'm saying that there is a definition within the agreement of redundancy that says - doesn't - not required to be done by anyone, and these jobs are still required to be done.
**** JUSTIN PETER NEWMAN XXN MR GILLESPIE
PN252
When you use the word "anyone" to whom do you think the agreement refers?---Anyone.
PN253
Wouldn't "anyone" relate to a person whose employment is influenced by the agreement?---I believe so, and the reference at the start of that, as I recall, talks about the job no longer required to be done.
PN254
If the Commission pleases, I have no further questions.
PN255
THE COMMISSIONER: Just before you go to re-examination, Mr Dwyer.
PN256
Just on your evidence, Mr Newman, can you tell me: you have made reference in your witness statement to an issue about - well, indirectly about training and so forth, but you have in your cross-examination raised the issue of training that is provided in certain circumstances; I am not sure. Can you explain to me what, in terms of your evidence, you had intended to mean by your training? What training is to be provided, if any?---Certainly. The - it was put purely in the context of if there was - with respect to ability to perform a function, it was in reference to if a team member was having difficulty performing a function we would train them, or if they needed training in performing a function that would be provided.
PN257
Have you provided training to persons in classifications who have been moving around functions previously?---Me personally, or the business - sorry?
PN258
As the business?---As the business, yes, from time to time training is required. It is not - I might add it is not always necessary, but where it is the training is provided.
PN259
In exhibit R2 headed Driver; this is the position description, is it, for a person who is carrying out the functions of a driver in either Grade 2 or 3 of the - - -?---Yes, it appears to have been, yes.
**** JUSTIN PETER NEWMAN XXN MR GILLESPIE
PN260
Why do you say it appears to have been?---Sorry, yes.
PN261
And do all the various functions within the Grades 2 and 3 - predominantly Grade 2, obviously - they all have their discrete position descriptions such as this, do they?---No, they don't.
PN262
Can you explain to me why that is not the case?---This - this document is dated, or signed in February 1996. There are customer service team members - or team members or perform customer service functions and the various other functions set out in the agreement, perform a variety of functions across the business. With respect to training provided, it is based on whatever the requirements of individuals might be.
PN263
So is this document still current; the driver position description?---I believe it is still current.
PN264
Is it still used?---I don't know that it is still used; it is certainly still current and it still reflects what is done.
PN265
But no other function within the classification has a position description?---I am not aware of any. There may well be other position descriptions. This wouldn't have been created unique to drivers, I don't believe, though.
PN266
So you are saying you just don't know whether they exist or not?---Sorry, that is correct.
PN267
So when a person is employed as a Grade - under Grade 2 or 3, are they given a position description of any sort, or is the classification structure of the agreement the extent of the functions of the defacto position description?---That is correct.
**** JUSTIN PETER NEWMAN XXN MR GILLESPIE
PN268
The latter?---That is correct. In effect, it does set out in detail the variety of duties there.
PN269
As a consequence of the contracting out initiative that the business has pursued, will there ever be any recourse for anyone to do any driving of any sort whatsoever in the business?---There may be, but I understood your question to be are all - is anyone ever going to ever drive again?
PN270
Well, that is correct?---I don't know; there may still be need for people to drive.
PN271
It won't be of delivery services, though, presumably; it will be other - - -?---I - well, I expect largely - I understand it could vary from location to location; that is some locations may retain the - - -
PN272
Sorry, might retain?---Drivers, or people performing delivery duties in some form.
PN273
So can you just explain to me what is exactly happening, then? Are you saying that the principal function of driver within the classification will cease to be conducted because it will be outsourced, but that intermittently - potentially intermittently in some locations there will be driving required in presumably those persons who are qualified drivers who carried out this principal task in the past would be the persons who I presume would be called upon to carry out those intermittent duties again in the future, even though they might be indeed infrequently intermittent?---I am not aware of, I guess, the long - the long-term view or plan or the business with respect to this particular issue, with respect to these individuals and the particular locations in this matter. Though, as I understand it, the intention is that there would no longer be delivery duties performed.
PN274
But it doesn't eliminate the possibility of some intermittent or infrequent driving on the part of some persons in some locations in the future?---I don't believe so.
**** JUSTIN PETER NEWMAN XXN MR GILLESPIE
PN275
Good, all right, thanks, Mr Newman. Sorry to delay you, Mr Dwyer; I will allow you to go into re-examination now.
PN276
MR DWYER: Just leading on from what you were just asking about, Commissioner, in terms of clarification I might ask Mr Newman how many stores in total can you recall are affected by this restructure?---I believe there are approximately 14 or thereabouts.
PN277
And that doesn't make up all of the stores that Bunnings operates throughout Queensland, does it?---No, it doesn't.
PN278
Can you explain why the implementation of this restructure is taking place in some stores and not in others?---In some stores it is - it is not a more efficient way of dealing with it, to have it performed by others. It - there may be, I guess, for example, in a regional location there may be difficulties in getting other people to perform these duties.
PN279
By other people, what do you mean by that?---Sorry, not having - the most effective way may be to have employees performing delivery functions or to continue to perform delivery functions.
PN280
Thank you. If I could take you to some of the questions that were asked of you by Mr Gillespie? First of all, you were taken to paragraph 3.2 of the certified agreement which deals with the hardware employee Grade 2; can I ask you - if you have got a copy of that in front of you - could I ask you to give us a description of some of these duties contained within that grade; for example, what is your understanding of merchandising?---Merchandising refers to the displaying of stock, is probably a more simple way of describing it. Point of sale type displays, how the stock is actually put out on the floor and available to customers, and associated duties.
**** JUSTIN PETER NEWMAN RXN MR DWYER
PN281
What about stock replenishment?---That would be replacing stock when it was - refilling it on shelves or placing stock out on the shop floor for sale.
PN282
Customer service and assistance; what does that mean?---That would be assisting customers, either providing advice, transacting sales. As it suggests, I think it is self-explanatory; that is assisting customers with their queries and the like.
PN283
Receipt and dispatch of goods?---That would be receiving goods from suppliers and sending out orders to customers.
PN284
It has got operation of a forklift here; could you - it seems to be self-explanatory, but perhaps you might expand on that as well?---Certainly. There are a number of duties; the nature of the business is such that we receive packs of timber, as I recall, that need to be taken off trucks with forklifts, placed into racking with forklifts. We also receive stock on pallets, and they are forklifted around the store and often displayed on pallets and forklifts are used for that.
PN285
What about answer and response telephone inquiries?---Well, the stores often receive queries from customers by phone seeking all manner of information. Equally, they receive calls from be it support officers and suppliers again seeking information.
PN286
Routine and minor maintenance not requiring trade qualifications?---That would be part of just general day-to-day upkeep of the store. It could include if, for example, if shelving needed to be replaced or was damaged and needed basic maintenance and that sort of thing.
PN287
"Sawing and machining of timber for customers orders/stop, not trade qualified"?---Often customers will order timber. The timber - a lot of the timber we have come in comes in very large - in significant large lengths and they will ask that it be cut down so they can fit it into - into their vehicles.
**** JUSTIN PETER NEWMAN RXN MR DWYER
PN288
"Operation of point of sale terminals/cashier operations"?---That would be using registers and the like to transact sales.
PN289
All right. Mr Gillespie focused on that particular function or particular duty within the classification. Can I ask you, in implementing this restructure did the company take into consideration the skills base of the drivers affected?---Yes, we did.
PN290
And is it the company's view that the positions to which these drivers are being redeployed - no, I will rephrase that. What is envisaged for the redeployed drivers in terms of the duties under Grade 2 or Grade 3?---They would be working in the yards. Their roles would involve customer service and assistance. It may involve merchandising and stock replenishment, the receipt/dispatch of goods, certainly the answering and responding to telephone inquiries. It may involve the operation of a forklift. It may also involve to some degree clerical and administrative duties; equally security and property - of property and merchandise. Really a range of the items set out in the classifications.
PN291
Is there any particular emphasis being placed on the drivers, for example, operating cash registers or working on a checkout?---No, there's not.
PN292
In terms of the company's consideration of the drivers' skill base is it the company's intention they will be redeployed in accordance with that skill base?---Yes, it is.
PN293
From a management perspective what is your understanding of your authority to direct the employees to perform functions within their classification?---I believe that we can direct - direct team members to perform - to perform work and duties within - within their classification as required.
**** JUSTIN PETER NEWMAN RXN MR DWYER
PN294
You were taken to paragraph 8 of your affidavit where you make reference to the parent award and indeed that is the reference that's contained at page 4 of the certified agreement in relation to the BBC Hardware Limited Agreement 1995. Could you just provide us with your own opinion, please, of your understanding of the role of a parent award in relation to a certified agreement?---My understanding is that a parent award in - I guess "underpins" is probably the term - the agreement itself and there may be provisions in the parent award that may not necessarily appear in the agreement but would still apply.
PN295
Is it your evidence then - no, I will retract that. In terms of paragraph 8 you've contained a reference there to item 4 in clause 4 of the parent award. Is it your opinion that this particular clause applies or does not apply to the employment relationship you have with the drivers in question?---I believe it would apply.
PN296
You were taken at some length by Mr Gillespie to clause 7.13, which at item C contains the agreement's definition of redundancy. Could you just tell me whether or not you were a party to the negotiations relating to this agreement?---No, I wasn't.
PN297
Is it your understanding - well, can I ask you - it's your understanding, is it not, that the SDA is a party to this agreement?---Yes.
PN298
Do you have any knowledge of the history of the negotiations leading up to this agreement?---No, I don't.
PN299
You were shown document 2, which is the document which was identified by you this morning when you first entered the witness box. Can you tell me the origins of that document? Well, no - I will retract that. Can I say - can you tell me how you came to be in possession of that document?---This was sent to me by the store manager at the Booval store.
**** JUSTIN PETER NEWMAN RXN MR DWYER
PN300
Did you make attempts to identify the source of that document?---Yes, I did.
PN301
Have you been able to clarify the source of that document?---I believe - I was unable to confirm it, but I believe it came from a Human Resources manual.
PN302
Do you know which Human Resources manual?---It would have - I believe it was at the time of the BBC Hardware.
PN303
And does Bunnings continue to use those Human Resource manuals?---Aspects of them still apply.
PN304
Thank you. I have no further questions for this witness, Commissioner. May the witness be excused?
PN305
PN306
MR DWYER: If the Commission pleases, I call Rodney Brett Kaust.
PN307
MR DWYER: Witness, could you state your name and title for the record, please?---Rodney Brett Kaust, Queensland State Operations Manager for Bunnings.
PN308
Have you prepared a statement in relation to these proceedings?---I have.
PN309
If the witness could see a copy of this statement, please. Commissioner, I've just realised that the copy of this that I've had has got some very minor handwritten notations made by myself on the copy that I received from the witness only in relation to some figures. I'll just point that out at this point. I might give the witness an opportunity to identify those, at least, as not being made by himself.
PN310
Mr Kaust, can you please identify this document?---Yes, I can.
PN311
Is that the statement you prepared in relation to these proceedings?---It is, yes.
PN312
Could I take you to the last page, some handwritten notations. Did you make those handwritten notations?---No, I didn't.
PN313
Thank you. That's the evidence-in-chief for this witness, Commissioner. I tender that statement.
PN314
PN315
THE COMMISSIONER: I don't have the - sorry. There were references to hand-written comments on the witness statement.
**** RODNEY BRETT KAUST XN MR DWYER
PN316
MR DWYER: No, I tender that one - - -
PN317
THE COMMISSIONER: So that was only on the tendered document, wasn't it?
PN318
MR DWYER: It is, Commissioner, yes. My apologies.
PN319
THE COMMISSIONER: It's not replicated in the - that's all right then. Just for clarification that is R3. Before I forget, Mr Gillespie, and things get away on your cross-examination, can I ask is the applicant - could you make some effort at the close of these proceedings to provide me with a copy of what we now know to be the parent award for this agreement? Even if you have it in electronic form as a scanned document or something.
PN320
MR GILLESPIE: Yes, I will seek to do that, Commissioner.
PN321
THE COMMISSIONER: That would be helpful. Thank you. Sorry, Mr Gillespie.
PN322
MR DWYER: I might indicate, Commissioner - I'm sorry to interrupt Mr Gillespie - I might indicate that I'm just having my client see if he has a copy of that parent award in his possession to provide you with immediately, if it's of assistance.
PN323
THE COMMISSIONER: That would be helpful. Good, thank you.
PN324
MR GILLESPIE: Mr Kaust, I just need to ask you some questions concerning your statement. Now, I will ask you to look at paragraph 10 at the bottom of page 1?---Yes.
**** RODNEY BRETT KAUST XXN MR GILLESPIE
PN325
And you make the observation that:
PN326
It should be noted that whilst the respondent no longer requires its staff to perform the driving role it still requires the role to be performed.
PN327
Now, is it true that you no longer have the position or the positions of drivers on your staff establishment at the affected stores?---No, we don't have the roles of drivers.
PN328
So you've reduced the staff establishment by the number of drivers that you had. Is that correct?---Yes. At the affected stores, barring obviously the stores we're talking about today that still have those drivers in place, we have replaced those roles with external contractors.
PN329
Yes. In the instances of these stores where you have replaced the roles with those of external contractors, will the company be effecting any deliveries by utilising its own staff at all?---No, not in trucks. Probably just to clarify that, occasionally we might take something out in a company vehicle, being a car, but not as in, sort of, what the trucks were doing for us in the past.
PN330
What about utilities?---Utilities are still located in, probably, off the top of my head, probably four or five of our locations in Queensland.
PN331
So would you be using utilities in those stores where the positions of truck driver, as such, no longer exist?---If the utilities are there, they'd be used by a number of people in our business, yes.
PN332
So almost anybody at level 2 and 3 have the capacity to drive a utility, would you agree?---As long as they hold a driver's licence, yes.
**** RODNEY BRETT KAUST XXN MR GILLESPIE
PN333
Just an open driver's licence?---Yes.
PN334
Now, I ask whether those drivers who have, indeed, deployed or redeployed to other duties confirm that they were happy with their new roles?---The team members that were drivers that are currently in roles in our stores, to my knowledge, are happy with the roles they've been offered.
PN335
Have they come to you and expressed satisfaction?---Not to me personally, no.
PN336
You were responsible, were you not, for notifying these people, in the first instance, by letter?---Yes. That was - the communication from myself was through to the store managers of the relevant stores.
PN337
Yes?---There was no direct communication between myself and the drivers, other than those letters.
PN338
Did those letters foreshadow the redundancy of the positions of truck driver?---Not that I know of.
PN339
On or about 11 June did you direct letters to a number of the drivers?---That would be about the dates where we did submit some letters.
PN340
Did those letters, in the latter stages, foreshadow notice and severance entitlements in the event of a lack of success at redeployment?---Yes, and I seeked clarification on the wording of those letters and was advised that it was entitlements under the EBA. It wasn't reference to redundancy. It was in regards to leave entitlements.
PN341
So was the reference to notice and severance entitlements?---As in regards to leave entitlements, so long service leave or annual leave owing.
**** RODNEY BRETT KAUST XXN MR GILLESPIE
PN342
May I just - may the witness be shown the statement of Cyril Lawrence Farmer, please, Commissioner?
PN343
Oh, well, have a look at this one, shall we? Now, there's a reference in that statement to that letter which you see. You'll note that it's a photocopy of a letter that you addressed to Mr Farmer?---Yes.
PN344
Now, just look at the penultimate paragraph, would you please?---Yes.
PN345
Now, you note there the reference to notice and severance?---Yes.
PN346
Now, what is your comprehension of the word "severance"?---Well, my comprehension in regards to this is that those severance entitlements would be any entitlements owing in regards to long service leave or annual leave.
PN347
Have you a cognisance of the use of the word "severance payment" in the agreement?---No.
PN348
Do you know the purpose of severance payments?---Well, I know the purpose of the severance payments in regards to this document.
PN349
Do you know what circumstances give rise to people actually receiving some money, other than their leave entitlements?---I would suggest if the role was no longer available in the business.
PN350
If it was - that's right?---Yes.
PN351
Would you say that if the role were redundant, would you agree?---True.
**** RODNEY BRETT KAUST XXN MR GILLESPIE
PN352
That would give rise to severance payments?---Yes.
PN353
Would you agree that it would be no unreasonable to interpret that second last paragraph as being severance arising from a redundancy?---It's possible that you could see that, and that's probably why I seeked clarification on the wording.
PN354
Would you understand why employees would honestly believe that there would be a prospect of them receiving some money in the form of severance payments?---I could understand that.
PN355
Thank you. That's the only reference I intend making to that document?---Yes.
PN356
Now, these employees who have provided statements - and I take it you have read their statements; is that the case? Have you read the statements? You have not read their statements?---No, sir.
PN357
Very well. When we look at the instances of Messrs Farmer and Bartsch and Botteriell and Schiffke and Glass - are you aware of all those people?---Sure are.
PN358
Yes. Were those people engaged, in the first instance, as drivers?---Yes.
PN359
Would you agree that their performance or function other than driving would have been minimal?---In regards to what I've read and know, I would say, yes.
PN360
In paragraph 15 of your statement - would you care to look at paragraph 15, please? You say:
**** RODNEY BRETT KAUST XXN MR GILLESPIE
PN361
It was widely accepted that the employees did not wish to leave their driving roles.
PN362
?---Yes.
PN363
Why did you make that comment? What led you to make that comment?---I suppose in regards to the drivers we're talking about, the feedback that I've received via the store managers, that they would prefer to remain in the roles of driving trucks.
PN364
Is that statement of yours some kind of recognition of their status as drivers?---It's probably recognition in regards to the role they were currently doing, in comparison to the role that we were looking for them to do, and that it was their thoughts on the matter.
PN365
Did you have any sympathy towards these people in connection with the radical change that they were confronted with?---The whole process was, you know, a great lot of concern with the team members that were a part of it.
PN366
Can you understand why they would feel that their lives were disrupted?---I can understand. Yes.
PN367
Commissioner, may the witness be shown a copy of the statement of Troy Philip Bartsch, with specific reference to the attachment TB1?
PN368
Now, you see that document there, Mr Kaust?---Yes.
PN369
Now, that's a roster, isn't it?---True.
**** RODNEY BRETT KAUST XXN MR GILLESPIE
PN370
Now, you'll recognise some names on that roster, about a third of the way down. Do you see the names Bartsch and Botteriell?---I do.
PN371
These people both work as drivers, or they have worked as drivers at Nerang; is that the case?---That's right.
PN372
Yes. Now, you'll see immediately to the left of those names, the syllable "DRI"?---Yes.
PN373
What does that signify?---I would suggest it signifies driver.
PN374
Very well. It signifies driver. May I ask you to look at this document which is also a roster. Now, can I ask you again to identify the names Bartsch and Botteriell? They appear first and third on the list?---Yes.
PN375
Immediately to the left of those names, what do you see?---Nothing.
PN376
Nothing? So the designation "Driver" has been removed in respect of this more recent roster, would you agree?---Yes, but there's also a different roster concept as well.
PN377
Why would the classification and, indeed, everybody else's classification no longer appear on the roster?---Well, without knowing, because I didn't do the rosters, I would say they've changed the format of their rosters.
PN378
Can I suggest to you that that change would have arisen from the passage of this dispute?---I couldn't say yes or no to it because I don't know.
PN379
Are you aware of any company instruction to the effect that the reference to classifications should not appear on rosters?---No.
**** RODNEY BRETT KAUST XXN MR GILLESPIE
PN380
Would you look at paragraph 17(1) of your statement, please? I beg your pardon, Commissioner. That document which I just addressed in the form of that roster, may it be admitted?
PN381
THE COMMISSIONER: That's the second one you addressed there with the absent indications, if you like?
PN382
MR GILLESPIE: Yes.
PN383
PN384
MR DWYER: Commissioner, I should just note for the record I had not seen a copy of this A2 previously, but for the record there's no objections to it going in.
PN385
THE COMMISSIONER: Thank you, Mr Dwyer. This is the unmarked roster document which follows the reference to the marked roster document which forms part of the exhibit to Mr Bartsch's statement, isn't it?
PN386
MR GILLESPIE: Yes.
PN387
THE COMMISSIONER: Yes, I just wanted to clarify that for the records so we know which of these documents we're referring to. Thank you, Mr Gillespie.
PN388
MR GILLESPIE: Now, we are currently looking at paragraph 17(1) where you concede that the roles in the yard proposed are vastly different from trucking driving. Would you agree that truck driving is a clearly defined discipline?---It is.
**** RODNEY BRETT KAUST XXN MR GILLESPIE
PN389
Would all employees at grades 2 and 3 be qualified to drive these trucks?---No.
PN390
They're quite large trucks, aren't they?---Yes.
PN391
There are certain statutory qualifications, aren't there?---Well, you'd need more than just a normal open driver's licence to drive them.
PN392
Having read your statement, I went to the Transport Department's web site and extracted this document which I would like you to have a look at. I would also, if I may, Commissioner, like the witness to look at this extract from the Transport Operations Road Use Management Act 1995.
PN393
THE COMMISSIONER: Do you want to tender these documents as you go along?
PN394
MR GILLESPIE: Yes, I will, if I may.
PN395
THE COMMISSIONER: We'll call the document headed Licence Classes and Codes from Transport Queensland - we'll refer to that as A3.
EXHIBIT #3 LICENCE CLASSES AND CODES FROM TRANSPORT QUEENSLAND
PN396
THE COMMISSIONER: The document that has just been tendered, which is the document headed Transport Operations Road Use Management Act 1995, we'll refer to that as A4.
EXHIBIT #A4 TRANSPORT OPERATIONS ROAD USE MANAGEMENT ACT 1995
**** RODNEY BRETT KAUST XXN MR GILLESPIE
PN397
MR GILLESPIE: Can I ask you first, Mr Kaust, to look at the Exhibit A4, which is the extract from the Transport Operations Road Use Management Act 1995? I've highlighted there a definition, "GVM". That means gross vehicle mass, and that means the maximum loaded mass of a vehicle. Do you see that?---Yes.
PN398
Very well. Now the phrase, GVM, is also used in the document A3, which I've handed to you in connection with the various classes of licences. May I ask you to look at in the first instance at licence class C. Do you see that there?---Yes.
PN399
Okay. Now that is what most of us would term an open licence, would you agree?---Yes.
PN400
And you wouldn't be allowed to drive a truck, would you, if that was the only licence that you had?---No.
PN401
You wouldn't be able to drive the kind of trucks that Bunnings run, or the former BBC stores, if all you had was an open licence, a C licence, would you?---Correct.
PN402
Very well. So that being the case then, we move down through the motorbike classes to the classification "LR" which is light rigid. Now you'll note that the people who are qualified under that heading can drive vehicles of a gross vehicle mass between 4.5 tonnes and 8 tonnes. The gross vehicle mass, of course, is the loaded mass of the vehicle. We move on further down there, you notice, and we move up to 9 tonnes and further on. Now would you agree that these people who we've spoken about today, Messrs Farmer, Bartsch, Botteriell, Schiffke and Glass, would all be qualified in terms of, at the very least, a licence class LR?---I would say that would be correct.
PN403
They'd have to be, wouldn't they?---Yes.
**** RODNEY BRETT KAUST XXN MR GILLESPIE
PN404
Or they wouldn't be able to drive your trucks, would they?---That's right.
PN405
These trucks that operate out of the former BBC stores: are they equipped with what is called a hi-ab?---Some of these trucks are.
PN406
Can you explain to the Commission what a hi-ab is?---A hi-ab is the crane that is fitted to the truck, so for obviously lifting very heavy material.
PN407
And is this hi-ab used for loading or unloading?---Definitely for unloading. I'd have to be - I'm not an expert on it but I don't believe it's probably used for loading the truck.
PN408
Would you agree that, aside from the statutory qualifications needed for the purpose of driving these trucks, to operate a hi-ab you would need quite clearly defined skills?---Yes.
PN409
Would the people of a generality who work in grades 2 and 3 in the former BBC stores have these skills?---Not if they hadn't had any previous experience with these trucks or the hi-abs; no.
PN410
So unless they have actually had occasion to drive one of these trucks - - - ?---Yes.
PN411
- - - they wouldn't have had occasion to operate a hi-ab?---No, that's right, but there's probably some people in our business that are in that situation at the moment.
PN412
What kind of situation is that?---Well, I would suggest that there's team members in our business that probably in the past have operated trucks or hi-abs.
**** RODNEY BRETT KAUST XXN MR GILLESPIE
PN413
Now this being the case, the statutory requirements as to licences and the skills required to operate hi-abs, would you agree that it would not be true to say that the role of truck driving is interchangeable throughout the staff of grades 2 and 3?---In regards to the team members not driving trucks at the moment trying to do that role with the trucks?
PN414
Yes?---No, it wouldn't be.
PN415
Yes, so it's not interchangeable?---Yes.
PN416
Now, how many people to your knowledge in levels 2 and 3 would actually possess these kinds of licences and skills?---Throughout our stores?
PN417
Yes?---I'd only be plucking a figure out of the air. I wouldn't know. I don't know the past experience of all team members in our business.
PN418
So do you ever audit the skills of your people at grade 2 and 3?---We do. Obviously we have training needs analysis but they don't - don't extend to a team member in customer service analysing whether they can drive a truck or use a hi-ab crane.
PN419
So you just wouldn't know then, would you?---No, I couldn't pluck a figure out of the air because I wouldn't know how many team members have these qualifications.
PN420
So then each of these establishments, each of these complexes, is going to be for the purpose of delivery - or has been for the purpose of delivery relying entirely upon the truck drivers? Would that be the truth?---Not entirely on the truck drivers.
**** RODNEY BRETT KAUST XXN MR GILLESPIE
PN421
Well, who else would drive the trucks?---Well, there's external contractors who have driven trucks in these stores as well.
PN422
We're concerned with your staff?---Yes. In regards to our staff, yes.
PN423
So you can place reliance upon the drivers for this purpose and nobody else? Is that the fact? Is that a fact?---Correct, yes.
PN424
Now, let's talk about these redeployments that are proposed. Can you say with certainty that these truck drivers will redeploy successfully into the grade 2 and 3 roles that are described in this exhibit A1?---The majority of them have been, yes.
PN425
Have they been successfully redeployed?---Majority of them have, yes.
PN426
Have you had any glitches?---The glitches that we're here about today.
PN427
Have you had any instances where people who have been truck drivers have not redeployed successfully into their new roles?---Well, Nerang and Booval stores.
PN428
Yes. That's because they didn't want to do it, isn't it?---That's right.
PN429
The fact is that you have redeployed some drivers?---Yes.
PN430
Have you struck any instances where it hasn't worked?---No. Not to my knowledge, anyway.
**** RODNEY BRETT KAUST XXN MR GILLESPIE
PN431
Have you had much in the way of the experience. They haven't been there for long, have they? These truck drivers who have been redeployed haven't been in those roles for long, have they?---No, well, it's probably been a progression thing that's been happening over the last 12 months, so some of these drivers have probably been in other roles for 10 to 12 months. Some of these drivers chose to take on those roles. They weren't offered.
PN432
What would be the consequences if any of these drivers fails to redeploy? Mucks it up in their new role?---Well, I'd suggest like all of our team members we would look at a coaching and retraining for the team members if that was the case.
PN433
Would you consider disciplinary measures?---Well, it depends on the issue. If it's just about learning a new role, then it would be a coaching, mentoring, training type of approach.
PN434
Can I ask you about this reference to overtime at the bottom of page 2 of your statement? Now, I take it you had the opportunity to read the statements of Messrs Farmer, Botteriell - - -?---No, I haven't.
PN435
You haven't read them?---No.
PN436
Have any of these people complained to you about the potential loss of overtime?---Not to me personally, no.
PN437
Have you received any complaints relayed to you about a complaint of theirs concerning the potential loss of overtime?---I have had some feedback from the store managers that there was concerns that there would be overtime lost.
PN438
In subparagraph 6 of that paragraph 17 - it's over the page; it's on the next page about a quarter of the way down. It's headed up Job Security. Do you see that - - -?---Yes.
**** RODNEY BRETT KAUST XXN MR GILLESPIE
PN439
- - - paragraph there, Mr Kaust?---Yes.
PN440
When you say that they're strengthening their job security, will that necessarily be the case if they prove unsuitable in their redeployed role?---I suppose it's like any team member. If they're unsuitable their job security is minimised.
PN441
I'd ask you to look at paragraph 18 now, and in the second-last line you say:
PN442
Whilst it is obvious that their actual day to day duties have changed, this is the only tangible change to their employment.
PN443
Whereas in subparagraph 17(1) you say that the roles in the yard are vastly different from truck driving. Are those two statements in your view consistent?---The difference is probably as a truck driver the majority of their work has been in regards to dealing with driving the truck and loading and unloading, and a minimal part of that is what their proposed new role would be, so they have been exposed to a small amount of that new proposed role. So in reference to what I've said in there, obviously the major difference is that they no longer would be driving trucks. They're still dealing with customer service, still dealing with stock selection, in most cases probably still dealing with loading of trucks.
PN444
But nevertheless their new roles are vastly different from their current roles. Would you agree?---Yes, because the majority are truck driving at the moment.
PN445
Yes, of course. If the Commission pleases, I have no further questions.
PN446
THE COMMISSIONER: Yes, Mr Gillespie. Mr Dwyer, re-examination?
**** RODNEY BRETT KAUST RXN MR DWYER
PN447
MR DWYER: Yes, just a couple of questions, Commissioner. Before I do, though, we gave your associate a copy of the BBC Hardware Limited Retail Agreement. I'm just wondering whether or not it contains page 6, because I have a loose page here which I've been referring to which may in fact be the page that may be missing from your copy. Clause 4, Objectives of the Agreement and Role of the Parties.
PN448
THE COMMISSIONER: Well, I have that clause but it's on page 5.
PN449
MR DWYER: And is there a page 6 following that?
PN450
THE COMMISSIONER: No, there's no page 6 following it, but - - -
PN451
MR DWYER: If I can just - - -
PN452
THE COMMISSIONER: - - - page 5 has on it Clause 4.1, Objectives of the Agreement.
PN453
MR DWYER: And this is the continued part of Clause 4, Commissioner, which contains the relevant passage which was referred to in Mr Newman's affidavit.
PN454
THE COMMISSIONER: Thank you.
PN455
MR DWYER: It might be of assistance if you have that as well.
PN456
THE COMMISSIONER: Thank you.
**** RODNEY BRETT KAUST RXN MR DWYER
PN457
MR DWYER: Mr Kaust, I just have a few questions for you. First of all, can you give us an estimate as to how many employees are employed by Bunnings at the grade 2 classification?---Are we talking Queensland or nationally?
PN458
Well, say Queensland?---Queensland. Between two and a half thousand to 3000 as an estimate.
PN459
Do you have any personal knowledge as to the trade qualifications of any or all of those employees?---Of any of them?
PN460
Yes. Are you aware that there may be some or all or a few who are employed who have particular trade qualifications?---Definitely would be, yes.
PN461
And are they employed specifically in that trade calling or are they employed generally under grade 2?---Generally under grade 2 unless we specifically are placing them for their trade knowledge in an area where they will continually use that knowledge.
PN462
So is it possible that there would be persons employed in the grade 2 classification who possess trade qualifications that are not specifically used in their day to day work?---Yes.
PN463
You were asked some questions about correspondence that you sent to some of the drivers who are the subject of these proceedings today. Was it ever the case in your recollection that you made any unqualified undertaking to make and pay redundancies to the drivers in question?---No, I never have.
PN464
You were taken to the part in your affidavit at paragraph 17 subparagraph 6 which deals with job security?---Yes.
**** RODNEY BRETT KAUST RXN MR DWYER
PN465
I'm mindful of the fact that you haven't read the statements contained in the applicant's body of evidence. If I could just read a passage to you and ask you to comment on the accuracy or otherwise. The passage reads:
PN466
So the way Bob put it across it looked like I could look forward only to short-term employment. What I want is long-term employment which I would have to seek elsewhere and that is why I want termination and severance benefits.
PN467
Is it your view that this particular passage could apply to any of the redeployed drivers in question?---I would see no reason why there would be any short-term employment for any of these team members we're talking about.
PN468
Thank you. I don't have any further questions for this witness, Commissioner.
PN469
THE COMMISSIONER: Could the witness just - sorry, I didn't quite catch what you said there at the end. Could you just clarify what you - - - ?---Yes. In clarification, I see the opportunity for these team members to move into other roles in the business as increasing their job security and extending their employment with the business.
PN470
Right. So you don't agree with the statement that was in the witness statement?---No.
PN471
Right. Okay. So what was exactly agreed at the beginning of proceedings about the witness statements again?
PN472
MR DWYER: Well, my understanding, Commissioner, is if they go in unchallenged then they can be accepted on their - - -
**** RODNEY BRETT KAUST RXN MR DWYER
PN473
THE COMMISSIONER: Yes. So far as you have contested that element of that particular witness.
PN474
MR DWYER: I've simply asked Mr Kaust to address a proposition which is contained in one of those affidavits, one of those statements, to talk about it generally rather than address it specifically.
PN475
THE COMMISSIONER: That's all right. So you've in effect qualified that witness statement by way of your - in your view, by way of your own witness' evidence?
PN476
MR DWYER: I suppose in an indirect way I have, Commissioner.
PN477
THE COMMISSIONER: Yes. So I'm just trying to get - okay. As long as we all know what's happened here. That's all right. Because at the beginning it sounded like bar those amendments that were made to the witness statements we had uncontested evidence, but we now have, at least in respect of one, a qualification that's been introduced.
PN478
MR DWYER: Well, there's evidence to the contrary of what's contained - evidence from the respondent to the contrary of what's contained in - - -
PN479
THE COMMISSIONER: That's all right. I'm happy for you to do it as long as we know that's what's happened regarding that opening statement that was made; that's all. That's your re-examination?
PN480
MR DWYER: That concludes the evidence for the respondent, Commissioner.
PN481
PN482
THE COMMISSIONER: For the benefit of the parties, you should appreciate the extent - and I don't know whether it will have any significance to you, but you should appreciate that I have read fully the documentation, that is, the submissions of both parties and the witness statements and supporting documentation that has come forward. So for the purposes of your concluding comments, then, if that assists you, then well and good, and if it is of no effect that doesn't matter at all. But we can now turn to closing submissions if you want. Would you like to have a break for a few minutes to gather some notes, or are you happy to push straight in?
PN483
MR DWYER: I would appreciate a ten minute adjournment.
PN484
THE COMMISSIONER: Mr Gillespie?
PN485
MR GILLESPIE: I would agree.
PN486
THE COMMISSIONER: Let us break for ten minutes then. We will resume at midday then.
PN487
MR GILLESPIE: Thank you, Commissioner.
SHORT ADJOURNMENT [11.48am]
RESUMED [12.05pm]
PN488
THE COMMISSIONER: Thanks everyone. Mr Gillespie?
PN489
MR GILLESPIE: As you have already indicated, Commissioner, you have had the benefit of the submissions now for some few days, and quite clearly there is not much purpose in reading them verbatim. Just a few observations. And firstly, to go to the length of service of these particular people, Schiffke, Farmer, Bartsch, Botteriell and Glass. It is noted that they are long term employees, that they were engaged in the first instance as truck drivers, and that they have only ever been truck drivers.
PN490
And any functions alternate to truck driving have been performed only upon an incidental basis. And quite clearly there has been a firm demarcation established as between the function of truck driving and the other functions associated with level 2 and - or grade 2 and grade 3. It is clear that the demarcation which I mentioned is established by matters of fact. Aside from the statutory elements associated with the licensing to enable these people to have the capacity to drive these vehicles, there is also a question of continuing proficiencies.
PN491
And even if there were the remote prospect of numbers of people in the timber yard or on the trading floor at any of the Bunnings complexes, having the necessary statutory qualifications to drive vehicles of this gross vehicle mass, there is no way that any responsible employer would take them from the floor and put them in a cabin of a vehicle of such size and such complexity, included in the operation of a Hi-AB, without first giving them the opportunity to reassimilate themselves into that particular working environment.
PN492
It is just not a practicality, and quite clearly the practicality is that these five people who are all dead set truckies are nothing else. They have been engaged for all intents and purposes exclusively in that role. Those roles no longer exist, that the company has taken them away from the establishment, that the company no longer requires the functions of those positions to be performed by anybody, and by anybody we mean an employee of the company, and that a redundancy situation therefore emerges, which give rise to a chain of events which must terminate, and these employees being given the adequate or prescribed period of notice, and are being paid the prescribed severance payments.
PN493
I did allude in the written submissions, Commissioner, to a number of cases. Pursuant to directions I have secured the requisite number of copies, and I would wish to briefly address these cases, if I may. Are all three of these required on the Bench?
PN494
THE COMMISSIONER: Sorry, all three of the decisions that you are going to refer to?
PN495
MR GILLESPIE: Well, we were directed to provide three copies of each - - -
PN496
THE COMMISSIONER: Yes. No, there is one for me and one for yourself and one for - - -
PN497
MR DWYER: I don't require a copy; I have got one.
PN498
MR GILLESPIE: You have got them all?
PN499
MR DWYER: Yes.
PN500
THE COMMISSIONER: Yes, so just a copy for me will be fine.
PN501
MR GILLESPIE: Well, that being the case we have a comprehensive addition to our case library.
PN502
THE COMMISSIONER: We have a share in the paper industry as you can see here at the Commission.
PN503
MR GILLESPIE: Just bear with me, Commissioner, until I sort this out. As Mr Dwyer has indicated the matter of De Role Nominees is a leading authority in relation to this issue of acceptable alternative employment. Our submission, of course, being that to relocate people of a defined discipline such as these truck drivers into areas wherein quite clearly they have neither the training or the capacity, vocational capacity to perform those functions is not acceptable alternative employment.
PN504
In this matter of De Role, the Full Bench addressed the test of acceptability and cited as you would have noted in our submission, a number of elements which need to come under examination in the context of the objective test which was established by that decision, and one of those elements being, or including, that the work be of like nature. In that regard, folio 5 of that copy of the decision which I have handed up, at around about the third paragraph, refers to the use of the qualification "acceptable" and addressing all of those elements, including the issue of the work being of like nature. And also the Bench did add the adjunct that there will probably be others - there will probably be others.
PN505
In Meat and Allied Trades Federation of Australia, this was an instance where an abattoir at Gunnedah closed down the operations in its boning room, and via the ministrations of the manager of that concern the employees were successfully re-employed by the new operators of the boning room, being the local authority, the outcome being that they continued to be engaged in their identical functions and identical positions, and the fact that their functions and duties simply did not change.
PN506
This was held to be acceptable alternative employment, and in the post-penultimate paragraph of that decision at page 4 of the document which I have handed up there is reference in the last four lines of that paragraph to the same employees performing the same or similar work, our submission being that it is an essential ingredient. But a successful re-deployment to acceptable alternative employment will involve, and has involved, by reference to all of these cases, the employees assuming the identical functions which they had been performing.
PN507
In QCCI v Bradford - in this instance, the employer, A Air-ray Services Proprietary Limited, were the applicants for exemption from severance payment in the matter of the re-deployment of a Mr Bradford, or rather the continued engagement of Mr Bradford in the service of the successor/employer. Mr Bradford raised a number of objections to the nature of the employment which confronted him under the auspices of his new employer. Those objections were substantially attended to, both by the prior employer, or the current employer and the prospective employer, and Commissioner Brown noted that in all the circumstances the employment would need to be regarded as acceptable alternative employment.
PN508
As I have noted there, Commission Brown quoted De Role Nominees with approval, and noted that the tests established by that case had been met in the instant case and that amongst other relevance the work offered that the employee was identical to the work that he had performed previously. Steppes Proprietary Limited, trading as the Beaufort Hotel, was the appellant from a decision of the Commission whereby they had been denied relief from severance provisions contained in the relevant award.
PN509
In this instance the appellant was successful. The Full Bench, comprising the President, Senior Deputy President Polites and Commissioner Bacon, noted that for all intents and purposes nothing had changed for these employees other than their employer. So they continued to perform the same role, and essentially the same functions.
PN510
Finally, the matter of Axbond wherein Commissioner Gay noted that the vendor of the hotel, Axbond Proprietary Limited, had taken steps to ensure that the employees concerned continued with their employment with the purchaser of the going concern. They continued with their existing jobs and pay rates, and that factor together with the continued permanency of the positions, comprised acceptable alternative employment.
PN511
Parallels we seek to draw, Commissioner, lead us to the conclusion that the employer in the current instance cannot succeed in an argument that they have secured acceptable alternative employment, given the longevity of the tenure that these people have had over their current, clearly recognisable, clearly discernible, discrete roles as truck drivers, and given also the inherent skills that are required for that particular role, and given also a track record indicative of the fact that they had been kept on that role with very minor deviations to any other functions that might have been prescribed for employees at grade 2 and grade 3.
PN512
Given also the fact that there was never any prospects - any real prospects realistically viewed of any kind of interchange of personnel as between the function of truck driving, and sales person, and security person, or yard person, or vice versa. Never any practical prospect of that occurring. These people are, and have been, truckies in every sense of the word. The company no longer has available to them positions in the form of truck driving. It follows therefore that the positions are redundant. That the notice and severance prescriptions must be invoked.
PN513
As to this definition of "redundant" - and I say this having noted the submissions of the respondent - if we quote the Shorter Oxford dictionary, we note that the term is defined as being "super abundant, or superfluous, or excessive," in other words - and these are not the words of Oxford; they are my words - just not required. And that this was the case in this current instance in respect of a number of these former BBC complexes. Bunning no longer wish to maintain its delivery function, and it no longer required - the company no longer required that particular function to be done by anyone.
PN514
And this definition of redundancy is not confined to this agreement. It is pretty much universal, and everybody has an appreciation of what that means. Redundancy applies where BBC Hardware has made a decision that no longer wishes the job the employee has been doing to be done by anyone. The application of this agreement is confined to BBC Hardware, the predecessor of the current company, and as a consequence pursuant to 170MB, to the successor employer. So the application clause embraces BBC Hardware/Bunnings, the employees in the classifications in the agreement, and the SDA. Nobody else. Nobody else. No incidental contractor that might come along and assimilate the functions that the company no longer wishes to be performed within its own establishment.
PN515
THE COMMISSIONER: Whilst you are on that topic, Mr Gillespie, can you tell me in your view, by way of submission, can you tell me whether the certified agreement that you have just made reference to is a comprehensive agreement in that it ousts the operation of the award, or is it an agreement that operates to only displace the award to the extent of any inconsistency?
PN516
MR GILLESPIE: Given what we have established today as to the adoption of the parent award, or the recognition of the parent award, were there a prescription present in the parent award that - or were there the absence of a prescription in the current agreement for the benefit of the parties to rely upon, one would need to have recourse to the parent award obviously.
PN517
THE COMMISSIONER: I will ask the same question of Mr Dwyer as well.
PN518
MR GILLESPIE: Would you like me to finish, or would you like me to - - -
PN519
THE COMMISSIONER: I am sorry.
PN520
MR GILLESPIE: Shall I continue?
PN521
THE COMMISSIONER: Yes, yes.
PN522
MR GILLESPIE: Very well. This standard - the standard that is adopted by this agreement is that which emerges from the supplementary decision in the TCR case, and that is pretty much a universal prescription. And this phrase, "no longer requires the job to be done by anybody," is quite clearly intended to mean anybody within the realm of the employers/employees.
PN523
THE COMMISSIONER: If it is not in the realm of the employers or employees, then what could it possibly be saying then?
PN524
MR GILLESPIE: Well, it was never the intention of it to say anything else in my view, Commissioner.
PN525
THE COMMISSIONER: Yes, but if we took it as a hypothetical situation for your submissions, it could only mean that - it could only mean that the company would never - would virtually - well, what would it mean? It would only mean theoretically that redundancies would only come into effect when it ceased an activity completely and it wasn't being carried out by anybody. So that would mean that if circumstances in which you could ever offer redundancy would be highly restricted too, wouldn't it?
PN526
MR GILLESPIE: Well, to the extent that - to the extent that every service that gets contracted out disqualifies the incumbent - - -
PN527
THE COMMISSIONER: From ever offering a redundancy.
PN528
MR GILLESPIE: - - - from ever receiving the severance prescriptions. And that was never the intention in either the TCR supplementary case, or in our view, the prescriptions that have been adopted by several industrial instruments as a consequence. Clause 7.13(c) and every other prescription of this agreement can only apply to the three entities that were parties to the agreement. The application clause embraces three parties. Three parties only participate. And the application of this agreement, including the redundancy and severance prescription.
PN529
You can forget the external contractor. The external contractor is performing its functions by virtue of some kind of common law contract that has been struck between Bunnings and themselves. They are not employees. They bear no relevance whatever to the application of the TCR prescriptions or to clause 7.13(c). It is not open to the respondent to claim that some fourth party in the person with whom the function of delivery has been out-sources can be said to have averted redundancy by means of having assumed under contract the function of delivery.
PN530
This contract, as I have said, is separate and distinct from the agreement. The contractor is not a party to the certified agreement. The employer has taken the decision pursuant to clause 7.13(c), and as a consequence has taken action so as to reduce its staffing establishment to the extent of a given number of driving positions. They are no longer available to the employees identified in the application clause, clause 1.3(a) of the agreement.
PN531
That action initiates a chain of events comprising interaction between the parties to the agreement, nobody else, just the parties to the agreement. Since the employer party has taken action so as to render unavailable to the employees the position which the employees have occupied, the sequence of events prescribed in clause 7.13.D, that is to say, the severance element, and also the notice elements, must be activated.
PN532
Now, as to the redeployment destination, the employer cites in support of its position the capacity of the employer pursuant to clauses 3.2 and 3.3 to engage employees at grades 2 and 3 in the variety of roles prescribed in those clauses. We have already referred to the practical barriers that prevent the employer from redeploying on an incidental basis the employees at grade 2 and 3 level generally to the function of truck driver. Apart from not being licensed, they wouldn't have the immediate physical or temperamental capacity to go out and summarily operate vehicles of that carrying capacity, vehicles of that size and vehicles of that complexity.
PN533
It's clear on the evidence that functions other than truck driving have been performed by the relevant employees only on an irregular and infrequent basis. The function for which they were employed and upon which they have been exclusively engaged is that of truck driving. Grade 2 and 3 are the prescribed classifications for a range of prescribed functions. There's no denying that's what the agreement says, but, by the same token, specialisation is not ruled out. There is no specific bar to people specialising in any of the given roles that are nominated at grades 2 and 3. These employees were engaged for a particular capacity and skill. They were engaged because they knew how to drive trucks and they had the statutory qualifications to do so, and they have continued to do so for periods ranging from eight to 14 years.
PN534
Mr Botteriell, in his statement, cited the difficulty which he encountered in one instance when his manager sought to redeploy him to the trade counter, and it just didn't work out because the aptitude wasn't present and he went back to truck driving within fairly short order. It's just not possible to continue with an endeavour to drive a square peg into a round hole. It's a question of horses for courses.
PN535
This dispute does not arise from the unreasonable rejection of alternative employment, as in Bradford's case. Bradford tended to put unreasonable qualifications on his acceptance or otherwise of the employment which was offered to him under the auspices of the successor employer. This case is not in the same category. These employees have followed the calling of truck driver for which they have a special aptitude, ability and statutory qualification. It is not reasonable to seek to impose sedentary or retailing functions on such employees.
PN536
In all of those cases which we've cited, Stepes, Axbond, Meat and Allied Trades Federation, and De Role - to the extent of all but six of the employees in the De Role case - the employers were able to successfully demonstrate acceptable alternative employment because the status quo for the employees essentially remained unchanged, including the work being of a light nature. The issue of acceptable alternative employment must be determined upon an objective basis, said the Bench in De Role, and they quoted a number of elements that comprise what made up the objective test and, at the end of that expression, indicated there may probably be others - there are probably others. We say there is another.
PN537
The removal of an employee from an adopted calling of long standing is so fundamental and dramatic a change to the status quo as to fail the objective test established in De Role. There is an admission on the part of the employer to dramatic change having occurred. Paragraph 22 of the employer's submission refers to dramatic change having occurred. Paragraph 17, placitum 1 of Mr Kaust's statement refers to the proposed roles being vastly different.
PN538
In our submission, the prospect of redundancy was clearly foreshadowed in several cited items of correspondence or, at the very least, the expectation was generated in the minds of employees that they would be the recipients of severance benefits, given the fact that they had developed over a period of time a niche within this company that revolves around the function of truck driving and nothing much else.
PN539
Why would you not expect to receive a severance payment where the company takes a decision to remove your vocational calling directly from under you? In our submission, the standards comprehended in De Role were not met. The proposed variation of employment was far too radical to pass the objective test comprehended in De Role, and clause 7.13.D must be applied. May it please the Commission.
PN540
THE COMMISSIONER: Thank you, Mr Gillespie. Mr Dwyer?
PN541
MR DWYER: Thank you, Commissioner. Commissioner, we have made full written submissions pursuant to the directions, and I do intend to rely substantially on those, but I would like to address just a couple of points that have arisen and also to summarise some points. The primary position of the respondent is that what is occurring with Bunnings at the moment and the redeployment that is proposed for these employees does not constitute a redundancy within the meaning of the governing industrial instrument. That industrial instrument, Commissioner, is the BBC Hardware Retail Certified Agreement 2001 and, as Mr Gillespie has already indicated, and we concur, it applies to Bunnings as the successor of BBC. It also applies and was negotiated no doubt at length by the SDA and this agreement constitutes the bargain that was struck between those parties on or about 17 April 2001.
PN542
Irrespective of its sources and its meaning in other forums or pursuant to other pieces of legislation or decisions or other agreements, the definition of redundancy that is contained in clause 7.13 of this agreement is the definition that was agreed to by the parties at the outset of this agreement. It is clear, it is unambiguous and, because it is clear and unambiguous, there is no call to resort to things like, for example, the Oxford dictionary. The definition of redundancy in the agreement is where the employer no longer wishes the job the employee has been doing to be done by anyone.
PN543
It's not a case where there's a restructure and there's nowhere for these drivers to go to or there's been the loss of particular clientele and there's no work for these drivers to do. It is not a case that the job is disappearing. It still exists, it will be done; it will just be done a different way by different people. Our primary position therefore remains, Commissioner, that this does not constitute a redundancy.
PN544
THE COMMISSIONER: Picking up the question I asked Mr Gillespie - if that's your interpretation, then your scope for offering redundancies is therefore a very narrow one. It's only in circumstances presumably, on the basis of your submissions, when you have ceased a function totally as opposed to ceasing a function which is subsequently done by someone else who is not an employee.
PN545
MR DWYER: That's correct, Commissioner.
PN546
THE COMMISSIONER: So it's a very confined set of circumstances in which a - - -
PN547
MR DWYER: I have to say, with respect, Commissioner, I don't agree that it's confined. I don't think it's a narrow set of circumstances at all.
PN548
THE COMMISSIONER: It's just a set of circumstances?
PN549
MR DWYER: It's just a set of circumstances. It's not the case in every day life, in business, that roles are holus-bolus contracted out. It does occur from time to time, and there is almost certainly in most cases some industrial disputation arising as a result of that. But the contracting out of roles on a large scale is only one set of circumstances which might, in another forum or pursuant to another agreement, be termed as a redundancy. But certainly, in the context of this agreement which we are dealing with today, it's our submission that it wouldn't.
PN550
The other feature of this agreement, Commissioner, is - and we've made some submissions about it previously - is the particularly broad scope of duties that are contained in grades 2 and 3 of the agreement. Leaving aside the restructure that has taken place, or is taking place with Bunnings at this point in time, it is certainly within the scope and power of the respondent company, in our submission, to lawfully and what would be, in our submission, a reasonable direction to redeploy these employees into different roles, depending on the needs of the company.
PN551
There is a very broad range of features to grades 2 and 3. We've been through them at length in the evidence of the witnesses. They are generally all unskilled roles and they are positioned together in this particular classification because of the fact that they are generally unskilled roles requiring no qualifications and what follows from that is that it should present no difficulties and, indeed, it hasn't presented any difficulties for people to move from role to role within that classification.
PN552
The evidence of Mr Kaust, in fact, confirms that there has been no difficulties other than this - this matter that is before you today - with drivers moving to other roles within the classification. Mr Newman took us through the classification in relation to specific roles, none of which, in our submission, Commissioner, were beyond the skills of your average truck driver. Merchandising, cutting timber, operating a forklift, receipt and dispatch of goods, routine minor maintenance and, in addition to that, there is display of good knowledge of product lines carried and general cleaning within the department.
PN553
It is not a case that they are all going to be put on cash registers, Commissioner, and required to operate a till for the duration of their shift, day in, day out, and that certainly isn't contemplated by the respondent as the evidence has borne out.
PN554
THE COMMISSIONER: But it is your submission, I presume, from what has been put to me, particularly by Mr Newman, today, that if that was the case, if this situation did arise, it is the obligation that is on the company to provide the training to build the necessary skills to carry out those functions within the classification?
PN555
MR DWYER: Indeed, Commissioner.
PN556
THE COMMISSIONER: Was that the submission that was made?
PN557
MR DWYER: That certainly is my recollection that it was the very clear evidence of Mr Newman that any difficulties involved in the transition would be addressed with training and that they are not just going to throw a group of fellows who have been driving trucks for 10 to 15 years behind a cash register and say, "There you go. Start selling some stuff." It is not a case that they are going to be dropped into the deep end. Mr Newman's evidence was very clear that any difficulties encountered in the transition will be addressed through proper training and proper mentoring program to allow these people to adequately integrate themselves and obtain the skills that they require for their new functions.
PN558
THE COMMISSIONER: For what it is worth for the parties, I just notice at clause 30.1(a) of the award, the consent award that provides the parent award for this agreement, that the phrase that - from that clause appears to be the phrase that is replicated in the agreement with regard to the definition of redundancy. But what turns on that for the moment, I don't know, but it is worth noting at the moment anyway.
PN559
MR DWYER: Commissioner, moving from the primary position held by the respondent, we also have addressed the issue of acceptable alternative employment. Assuming that this Commission were prepared to accept the circumstances in this particular case did constitute a redundancy in some particular fashion, then that might necessarily give rise to an entitlement for redundancy payments to be made to the employees in question. In our submission, that entitlement would be negated by the fact that this employer has found acceptable alternative employment for these employees.
PN560
What will constitute acceptable alternative employment, Commissioner, will, in my submission, always depend on the individual facts in every case, and it is fair to say that the facts in this particular case are largely undisputed, the facts being that the employees who are essentially the complainants before you today have a long history of employment with this company and an extensive history of driving trucks for this company. There is no doubt about it. We are not denying that. We don't seek to shy away from that factor.
PN561
The other facts that are also of relevance, and we say should receive just as prominent consideration by yourself, are the fact that these particular employees are employed in a classification which is broad in its description of its duties and that the duties that have been identified in that classification are not at all beyond the skill levels of the drivers in question - or the employees in question.
PN562
The case law that you were taken to highlights particularly the decision of de Role and we would agree that this is essentially the most significant case on this particular point. In our submission, however, there is a need to take - in considering the objective approach proposed in that decision, there is a need to consider also the facts of each individual case in a more global sense.
PN563
The features that are to be considered by a Commission that were set forth in the de Role decision are the work being of a like nature, the location being not unreasonably distant, the pay arrangements complying with award requirements, and it goes on to say there will probably be others.
PN564
Now, I might say on that point that Mr Gillespie did attempt to say that he has found another one and that is that you can't put qualified truck drivers behind a cash register or you can't put them in a timber yard cutting timber and serving customers and so forth. I don't think he has found a new one, with respect to Mr Gillespie. I think what he is talking about is the nature of the work, and we have conceded that these employees who have been driving trucks won't be driving trucks.
PN565
But the nature of the work is not the only consideration that must be taken into account and, in our submission, a proper reading of de Role and the cases that have followed on from it will support the proposition that you must consider all of the facts that are relevant to the particular case in their particular context and seizing upon one of these features that is set out in the de Role decision is not a proper approach to take.
PN566
I might take you, first of all, to the decisions that Mr Gillespie took you to, not at any great length, Commissioner, other than to demonstrate that, in the findings of each particular case, each Commission or Commissioner took exactly that approach - exactly the approach that I am suggesting is the appropriate one. In the Westland Meats decision, in the second-last paragraph, the Commission makes reference to its considerations being - including the employees continued to work at the same location, performing the same or similar work, some changes in hours for some employees but generally the same.
PN567
In the decision of Charles Bradford - QCCI v Charles Bradford, the decision of Commissioner Brown of the Queensland Industrial Relations Commission, in the final paragraphs of that decision, he considered the work offered to Mr Bradford was identical, the location of his employment was unchanged, the rates of pay and conditions offered complied with the award.
PN568
In the Steppes and - trading as Beaufort Darwin - decision, the Commission, in that particular decision, made reference to the employees being employed under the same award on the same premises as part of their consideration for acceptable alternative employment. And, finally, in the Axbond decision, the Commission, in that particular case, considered the following: no loss of pay sustained by these staff, positions taken up continue to be permanent position, continue with their existing jobs and on their existing pay rates.
PN569
It's not denied, Commissioner, that the nature of the work which was originally discussed in, or suggested as an appropriate feature to consider, in the De Role decision has been carried through in the other decisions, but it's only one and, in our submission, it should not be decisive. The facts of this particular case, with reference to the features originally set out in De Role decision, are addressed in Mr Kaust's affidavit, specifically at paragraph 17 where all of these features are considered in the context of the facts of this case.
PN570
Dealing with 17(1), it's conceded that the nature of the work is going to change. They're not going to be truck drivers any more. And that's where it ends, Commissioner. Location of the work is not going to change. Pay arrangements are not going to change. Indeed, their allowances that they receive a truck drivers are going to be rolled into their base rate. The overtime will suffer some impact. That is not denied either, Commissioner, and a table has been set out at the bottom of Mr Kaust's statement to indicate the extent to which that overtime is going to be impacted upon.
PN571
The hours of work are not going to be altered. Indeed, specific allowances are being made for these employees to allow them to continue to operate within the same hours that they previously operated in when they were driving trucks. And most significantly, Commissioner, most significantly of all, their job security is going to be enhanced by this move. In the context of the case law that has been developed in this area over the last 10 years, Commissioner, the facts of this case, in our submission, clearly demonstrate that the employer has taken steps to redeploy these employees to what should be considered as reasonable or acceptable alterative employment.
PN572
Some note was made of correspondence that was passed between the company and these employees in the lead up to the implementation of the redeployment. It cannot be said, in any way at all, Commissioner, that there was any unqualified open promise to pay these drivers a redundancy. What is evident in all of the letters that have been exchanged on this particular topic, certainly the ones that have been referred to by the applicant, is the position of the company has always been, if we can't find you acceptable alternative employment, then you will be paid your appropriate redundancy.
PN573
If the company is guilty of anything, it may be that they have got the hopes up amongst some of these drivers that there might have been a pot of gold at the end of the rainbow. But at the end of the day, Commissioner, this company has a commitment to retaining these employees. Their length of service, their experience with the company's products and customers are all features that are valued by this company. It is, certainly in my experience and I'm sure the experience of most of the people in this room, an unusual circumstance where a union representing its members comes before this Commission and asks this Commission to support the termination of the employment of those members. Unless I can assist you with anything else, Commissioner, those are the submissions.
PN574
THE COMMISSIONER: I did ask you whether you could make some submission to me on whether or not the agreement is a comprehensive agreement.
PN575
MR DWYER: My apologies, Commissioner. Yes. It is a valid point. You raised that matter during the cross-examination of Mr Newman and I attempted to address it in redirect. Commissioner, certainly, on our submission, and certainly it's the position of Mr Newman in his affidavit and that's why he made reference to it, that there is a parent award that operates, in a sense underpinning this certified agreement, and that is the BBC Hardware Limited Agreement 1995. Irrespective of the current validity of such an instrument, it's our submission that the certified agreement should be read in conjunction with that previous agreement and, to the extent that matters aren't addressed in the current certified agreement, any provisions in the parent award or agreement should be applicable, specifically the item that's addressed in Mr Newman's affidavit at paragraph 8.
PN576
There is a, if you like, an underpinning philosophy that applies to this employment relationship and that is spelt out in the provision that deals with the objective of the agreement and role of the parties at item 4 where it says:
PN577
Employees willingly accepting total flexibility of jobs and duties throughout the store, subject only to training received, individual skills or abilities to perform particular tasks.
PN578
In our submission, Commissioner, that principle underpins this relationship and the preference or otherwise for these employees to continue driving their trucks in the context of that principle suggests that there is an obligation and a requirement on these employees to accept some change in their working environment, particularly within the scope of their own classification, and to be flexible in circumstances just such as these. Those are the submissions for the respondent, Commissioner, unless I can assist you further.
PN579
THE COMMISSIONER: I'll just keep you on your feet for a moment, Mr Dwyer. I'll come to Mr Gillespie for submissions in response shortly. There's just one issue that's in my mind. It's not one that I can - that I appreciate the parties would necessarily have put their minds to, only because the issue of jurisdiction wasn't contested in this matter. But there is, as I mentioned at the beginning, there were two jurisdictional issues that I needed to satisfy myself about at first instance. There are, in fact, three, as I think about it. The two that I mentioned at the very beginning concerned, (a) whether or not the matter in dispute was about the application of the agreement, and (b) whether or not the grievance procedure had sufficiently empowered me to determine this matter in the way in which I discussed.
PN580
The first matter, however, requires a little bit more elucidation because one of the threshold issues, perhaps, of the jurisdiction - to establish jurisdiction the Commission needs to characterise the matter in a dispute as being a matter about the application of the agreement. Now, in the original application, I have a very general statement that goes to a number of issues which concerns the payment of severance payment, adequate alternative work having been offered and so forth. Now, what we need to agree on is that there is a very succinct and clear characterisation of the issue in dispute, such that it is consistent with section 170LW of the Act, that is, that it is, indeed, a dispute about the application of the agreement.
PN581
Now, that may not be immediately evident to you how to do that, but the - I need to, in approaching this matter, at very first instance determine that I have a matter that I can characterise as being a matter about the application of the agreement. Now, as I said, look, the wording of the application itself is very general and deals with a number of issues. I'm wondering whether the parties might concur, and subject to what they think and, sorry, this is just something I'm doing on the run myself, that the issue that is in dispute about which the applicant is seeking the Commission to determine, there's no dispute that the grievance procedure, in conjunction with section 170LW does empower me to settle the dispute.
PN582
What we're doing here and now is just defining the nature of the dispute. Would the parties agree that the nature of the dispute, the matter that is in dispute about the application of the agreement is captured in these questions. Did the contracting out of driver functions in Bunnings Proprietary Limited give rise to a redundancy for the affected employees for the purposes of the BBC Hardware Agreement 2001 pursuant to section - clause 7.1(3)C of the agreement, and, secondly, if it did, was adequate alternative employment provided by the company pursuant to clause 7.13(a) of the agreement? Do you see what I've done? I've tried to break it up into two - the issues - there are really two issues in dispute. I'm trying to pull them together, but because they're spread out over quite a number of different sentences in the actual application, I need to have a very strict defined characterisation of the dispute.
PN583
I'll just go through that again, and the wording is a bit loose at the moment. Did the contracting out driver functions in certain of Bunnings, you know, businesses give rise to a redundancy for the affected employees, the relevant employees, if you like, the relevant - there's five, I think, isn't there - the relevant five employees under the BBC Hardware Agreement 2002 pursuant to clause 7.13(c) of the same? And if it did, was adequate alternative employment provided pursuant to clause 7.13(a) of the agreement? And that agreement, as I read it, looks like 7.13(a) picks up the TCR decision, which therefore picks up the issue about adequate alternative employment and allows me therefore to deal with that.
PN584
Would you like a few moments to consider that? It is - don't worry, there's nothing untoward here. I'm just trying to - Mr Gillespie, for your purposes, there's quite a lengthy paragraph in your application and what I have to do is get the characterisation of the dispute down to a defined nature, so that I can be jurisdictionally confident, if you like.
PN585
Sometimes people will put in - sometimes it's the case that these applications deal with matters that aren't actually about the application of the agreement or seek to have the Commission do things that aren't about the application of the agreements, and some cases there's a need to be very careful that one doesn't stray off into judicial functions about interpretations of awards and so forth.
PN586
MR GILLESPIE: As I view the notification, Commissioner, the first element that one encounters is the decision of the company to redeploy drivers consequent upon outsourcing of the driving function, and we say that they became redundant as a consequence, in the second line.
PN587
Secondly, we made it clear to the company that the proposed redeployment would not comprise acceptable alternative employment. And thirdly, we said that the severance payment and notice prescriptions should be applied. That was our knowledge and our - as far as we are aware, the correct and current knowledge of the issue that confronts the Commission.
PN588
The issue of the definition of redundancy is one which has emerged only consequential upon this matter being referred to arbitration. The question of legitimising - the question of asserting that redundancy has not occurred because the company requires a contractor to perform the function and therefore the function continues to be performed, was not one of which we were appraised at the point in time when we filed this notice of dispute.
PN589
There is no question in our mind that the company no longer requires the position to be performed by anybody in its employment, and therefore a redundancy has occurred. There's no question in our mind, similarly, that given the calling and vocation of these people, given the cases that we've advanced, the employment offered is not acceptable alternative employment.
PN590
THE COMMISSIONER: See, what the Commission needs to do though, it needs to characterise - it needs to characterise the dispute so that it's about the application of the agreement. Now, again, this is a wording issue only. It's not a question of trying to introduce a different ground for your application, whatever. I'm just trying to find a succinct way of relating what you're seeking to the agreement very closely to the - specifying it to the clause; tying it to the clause.
PN591
MR GILLESPIE: You quoted some clause numbers there.
PN592
THE COMMISSIONER: Yes, look, I was only referring to clauses - the redundancy clauses, that is 7.13(a) and 7.13(c).
PN593
MR GILLESPIE: Well, 7.13(a) constrains the company to observe the principles adopted in the supplementary termination change of redundancy case.
PN594
THE COMMISSIONER: That's right.
PN595
MR GILLESPIE: And 7.13(c) characterises the emergency of redundancy when it applies.
PN596
THE COMMISSIONER: That's right. Now, are they the general topics that cover your issues here?
PN597
MR GILLESPIE: We say that the employees are redundant. We say that they have not been offered alternative acceptable employment.
PN598
THE COMMISSIONER: Yes, that's right, because what you're saying is those clauses haven't been applied correctly by the company.
PN599
MR GILLESPIE: Yes.
PN600
THE COMMISSIONER: Because they haven't given rise to those outcomes that you're seeking.
PN601
MR GILLESPIE: Yes.
PN602
THE COMMISSIONER: Because that's the contested area.
PN603
MR GILLESPIE: Yes.
PN604
THE COMMISSIONER: Yes, see, that's what I mean by offering - by saying this, that if I take as the characterisation of the dispute being a dispute over whether or not the contracting out gave rise to a redundancy for the relevant employees, the five of your members, that captures your issue about whether the outsourcing delivery functions - whether or not they had access to the severance payments. Your submission is they do.
PN605
MR GILLESPIE: Yes.
PN606
THE COMMISSIONER: That's all right for your purposes, but I need to - do you see what I'm trying to do? I need to get a - I need to characterise the matter that's in dispute between the parties and relate it to the agreement.
PN607
MR GILLESPIE: Yes.
PN608
THE COMMISSIONER: So that for jurisdictional purposes it is quite clearly a dispute about the application of the agreement, because it is a dispute about how clauses 7.13(c) and 7.13 apply in these particular circumstances, and your submission to me is that in these particular circumstances, a redundancy was generated, a bona fide redundancy was generated, and it should have given, with respect to these - your members, and it should have given rise to the payment of severance pay.
PN609
MR GILLESPIE: Yes, well I take the view that the vehicle that you propose to adopt, from the viewpoint of jurisdictional orientation, is correct.
PN610
THE COMMISSIONER: Mm.
PN611
MR GILLESPIE: Provided of course that, sequentially, we also take into account the necessity for the severance payments to emerge.
PN612
THE COMMISSIONER: Well, that's why I've made the second limb of it, if it did, that is, if there was a redundancy situation that was in effect - it can be either reference to were the required severance payments - or it could be - well, it could be - it could come to - it could be referrable to (d), 7.13(d), and it could be simply that if the answer is yes to number 1, that, yes, a bona fide redundancy situation arose, were the required severance payments made pursuant to, well - - -
PN613
MR GILLESPIE: Can I just raise one problem?
PN614
THE COMMISSIONER: Sorry, just drifting off into a different - - -
PN615
MR DWYER: There's one slight fly in the ointment. I might say at the outset though, Commissioner, that your characterisation of the matter is something with which we concur. We think that adequately defines the problem that the parties have put before you today, and in a manner which overcomes the jurisdictional issue.
PN616
There's one slight problem with it, and that is that the employees in question, at least for the part of three of the five, are - certainly, it's our understanding that Mr Schiffke is not seeking to be classed as redundant, and that was the purpose of removing that particular paragraph from his affidavit. He's - my understanding, from my instructions, is that his statement went in merely as a support for the other employees to support the factual issue as to the extent to which these persons were drivers.
PN617
THE COMMISSIONER: So it's four.
PN618
MR DWYER: It's only four.
PN619
THE COMMISSIONER: Yes.
PN620
MR DWYER: And as I understand it also, Mr Glass has been working in a non-driving role for a substantial period - a substantial number of months and hasn't been enrolled in driving duties, I think, since at least April. The remaining three drivers are currently still driving. I'm instructed that it may be the position of the company that in the event that this Commission were to find that a proposed redeployment was not acceptable alternative - well, sorry, I should take a step back there.
PN621
THE COMMISSIONER: That there was a redundancy.
PN622
MR DWYER: That there was potentially a redundancy arising.
PN623
THE COMMISSIONER: But then you want to make your application, I presume.
PN624
MR DWYER: Sorry?
PN625
THE COMMISSIONER: Then you'd want to make your application, I presume - - -
PN626
MR DWYER: Correct, for exemption.
PN627
THE COMMISSIONER: - - - for exemption. That's why I was worried about taking (b) in the agreement. I think it's (b), yes, on the severance pays, because that presupposes that you haven't made an application.
PN628
MR DWYER: Depending on your finding, in terms of - I mean, it's difficult, because you're going to have to - I think, in order to - there may be a need to put the cart before the horse at one point in terms of the acceptable alternative employment issue, but the company hasn't - the status quo of the three remaining drivers, if you like, remains that they are drivers. If it is - and I have given the matter submission that the company is keen to ensure the continued employment of those people, all those employees - the company may want to revisit its decision in relation to those three employees, in the event that you were to find that any proposed deployment to the yard would not constitute acceptable alternative employment.
PN629
THE COMMISSIONER: The issue is, Mr Gillespie, that it's a question of how this unfolds. See, for the Commission's purposes, what it can do is say that it is attempting to resolve the dispute that is between the parties regarding the application of the redundancy provision in the circumstances. It can say that. But the issue is that it can't go the next step for the moment of ordering the payment of severance payments as a consequence, because there is an entitlement that exists for the employer to make - if I was to find that there was a redundancy situation, and that your members as a consequence logically were entitled to severance payments, I couldn't go on to order the payment of those severance payments until such time as I'd heard from the company as to whether or not they sought a variation for purposes of excluding themselves.
PN630
So we'd have to, in effect, hear the matter of the argument for exclusion again as a consequence of the application that would come forth for exemption. So I'm afraid it's going to be - it looks like this is going to be a two-step process. I shouldn't say it is going to be; I'm saying that if I was to find in the favour of the applicant, I should only at first instance find in favour of the applicant in relation to the issue of whether or not this was a redundancy situation. And that is the characterisation of the dispute at the first instance.
PN631
Now the next step having found that, if that's how I found, then it would be a question of whether or not a variation came - an application came forward for a variation for the purposes of the exemption. Then we'd hear argument again. In fact, you could rely on your previous submissions to be honest. It wouldn't necessarily require a further hearing because you could just simply say, well, having found in favour of the applicant that a redundancy situation arose, the parties then agree to rely on their submissions put in these proceedings in respect of whether or not there was an adequate alternative employment offered. You've already put all your argument about all of that. Do you see what I mean?
PN632
MR GILLESPIE: I acknowledge those comments, yes, Commissioner.
PN633
THE COMMISSIONER: That would mean so on paper we've got a two-step process.
PN634
MR GILLESPIE: Yes, I understand.
PN635
THE COMMISSIONER: But, strictly speaking, I could do the - once I got the application, I could then say now you will just all confirm if I go to your submissions, and then we could virtually do a paper-less - for your purposes, a paper-less decision in respect of the application for the exemption, assuming you don't want to put even more to me than you've already put. You may want to, that's up to you. Is that making sense, is it, about - - -
PN636
MR DWYER: It certainly does. I guess what I was referring to when I was talking about putting the cart before the horse in terms of the submissions that we've made on the issue of acceptable - - -
PN637
THE COMMISSIONER: Yes, I don't think we - - -
PN638
MR DWYER: - - - the submissions I made in relation to whether or not you can determine anything in relation to acceptable alternative employment. Might I suggest, and I'm only throwing it forward as a suggestion, that you may be in a position to determine the first issue as to whether or not this constitutes a redundancy or potentially a redundancy - - -
PN639
THE COMMISSIONER: That's right.
PN640
MR DWYER: - - - and then express in some form of obiter whether or not the proposal of the company to redeploy these drivers to the yard might, on application, constitute acceptable alternative employment.
PN641
THE COMMISSIONER: Yes, I know what you mean but I'm loathe to do that because - look, I wouldn't provide obiter comment. You'd try not to do that because that's not what is before you. The Courts have a tendency to do it - - -
PN642
MR DWYER: It would save us coming back was the only thing.
PN643
THE COMMISSIONER: Yes, but I don't think you need necessarily - I think for your purposes if you're looking at reducing your transaction costs, which is an absolutely legitimate thing to do from both sides, then you should only have a view that you may need to fill in the - make the necessary application and that's all for variation, and the rest would be done in chambers and relying on the submissions that have been put to me on whether or not there is adequate alternative employment. Does that - - -
PN644
MR DWYER: Just excuse me one moment.
PN645
THE COMMISSIONER: Yes. Do you see, Mr Gillespie? I think I'd be treading down a possibly appellable route if I - - -
PN646
MR GILLESPIE: Yes, I understand your difficulty, Commissioner, and the course of action that you've proposed appears from the Commission's standpoint to be a logical one.
PN647
THE COMMISSIONER: It's a two-step process; a paper step - second step for yourselves.
PN648
MR GILLESPIE: Yes.
PN649
THE COMMISSIONER: And it would mean that the decision that I deal with today is a decision about whether or not the redundancy provisions were properly applied in the circumstances of this application.
PN650
MR GILLESPIE: Well, it may very well be that if the matter were determined - the matter of the existence of redundancy were determined in favour of the notifier, that the parties may very well procure circumstances that might obviate the necessity to file a further application anyway.
PN651
THE COMMISSIONER: Yes, I don't think - well, he might just agree.
PN652
MR GILLESPIE: He could very well do that. One never knows, Commissioner. One lives in hope.
PN653
THE COMMISSIONER: Yes. Mr Dwyer, did you catch that?
PN654
MR DWYER: Sorry, Commissioner, I missed it.
PN655
THE COMMISSIONER: The alternative is, of course, that you might also - depending on the outcome of the decision, you might also find that you agree as to how you want to deal with it amongst yourselves; that's the alternative and there's no further application. I leave that to yourselves. But in the event there is a decision, that does trigger the requirement for the variation and that would come forward but, as I said, it would not be a process you'd exercise for yourselves. You'd simply put the application in. I'd then determine on the basis of what is before me and that would be it, and then a decision would come forth once you've notified me that you just rely on your previous submissions, with no further appearances or anything.
PN656
MR DWYER: That's acceptable to the respondent, Commissioner.
PN657
MR GILLESPIE: Yes.
PN658
THE COMMISSIONER: And to yourself as well, Mr Gillespie?
PN659
MR GILLESPIE: Yes, we understand.
PN660
THE COMMISSIONER: Good. Now that gets around - that defines the jurisdictional issue, because the jurisdictional issue is now a dispute over the application of the redundancy provisions of the agreement. That's the matter that I'll determine, whether or not in my view the redundancy provisions were properly applied in the circumstances of this outsourcing arrangement.
PN661
Then, dependant on that, there is another course of action but dependant on what the outcome of that is, and that will be either if it goes in favour of the applicant it will be either you can agree amongst yourselves what you want to do, or else there will be an application for variation, in which case I'll then rely on the submissions that have been put to me on the issue of adequate alternative employment for the purposes of determining that application. But no further transaction costs or requirements would fall upon the parties as a consequence of that.
PN662
MR DWYER: That's fine, Commissioner. Yes, thanks, Commissioner.
PN663
THE COMMISSIONER: No other concerns then?
PN664
MR DWYER: No.
PN665
THE COMMISSIONER: Nothing else? Mr Gillespie, I interrupted you, sorry, but that - I'm just trying to remember where I was up to when I interjected with all of this. I think you were virtually at the point of sitting down at the close of your submissions. Have you - - -
PN666
MR GILLESPIE: We're completed, yes, Commissioner.
PN667
THE COMMISSIONER: Good, thanks. Well, where we are at the moment, Mr Gillespie, we're in your hands for closing and final submissions in response.
PN668
MR GILLESPIE: This shan't take long, Commissioner. I've just a couple of brief points. Integral to the current agreement are redundancy and retrenchment prescriptions which are totally adequate to the accommodation of this current situation. Clearly the circumstance that gave rise to this notification comprised a redundancy for the purposes of the definition contained in the agreement, at 7.13(c). Commissioner, there was a reference in the respondent's address to the issue of positions in grade 2 and grade 3 level being unskilled. In our earnest submission that is not the case in relation to truck drivers.
PN669
It is a clearly discernible vocation, and it requires clearly discernible statutory qualifications, and an aptitude and a degree of road sense which needs to be applied so as to ensure not only the safety of company property, but also the safety of the public in general, bearing in mind that these are quite large intrinsic vehicles.
PN670
Had the respondent been in a position to redeploy these truck drivers to another position of truck driver, this notification would never have emerged. A difficulty arises in the nature of the re-deployment destination. My organisation has a primary commitment to the continued employment of its members. The difficulty is that in all the circumstances continued re-employment and the re-deployment destinations which were contemplated were simply not practicable nor an acceptable alternative.
PN671
Reference has been made to two of these members, one Mr Schiffke and one Mr Glass. The reason that we sought in the first instance to strike out that element of Mr Schiffke's statement, was that it came to our attention by the agency of Mr Dwyer, that Mr Schiffke had, in fact, informed management that he would be willing to be re-deployed to the position in question.
PN672
As to the case of Mr Glass, he assures me and he is quite adamant that never at any stage did he signify consent to be re-deployed to the position, which he currently occupies, that he merely accepted the instruction of the company to take up the functions that had been allocated to him. But that is far from content with his re-deployment destination. No redundancies - I beg your pardon I will rephrase that - the job is not still there, the job of truck driving is not still there, it does not fall within the establishment of the company, it has been removed from the establishment of the company, it has been contracted to a party who is outside of the relationship between the employer and the employee outside of the scope of operation of the current agreement.
PN673
There is no question that a redundancy has occurred, and our submission to the Commission is that it should be found that indeed we do have a bona fides redundancy. The question of acceptable alternative employment may very well remain to be decided on another day, but nevertheless we remain adamant in our approach that a bona fides redundancy has occurred. May it please the Commission.
PN674
THE COMMISSIONER: Good, thanks very much, Mr Gillespie. There are no other matters from the parties? Good, thank you very much. We will adjourn then, and I will reserve my decision, and hopefully I will be able to give effect to that decision in a relatively short period of time, contingent on other matters. That said, can I thank you very much for your submissions in this matter, and as I said we are adjourned and the decision is reserved. Thanks very much.
ADJOURNED INDEFINITELY [1.17pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #A1 COPY OF AGREEMENT PN39
JUSTIN PETER NEWMAN, AFFIRMED PN55
EXAMINATION-IN-CHIEF BY MR DWYER PN55
EXHIBIT #R1 STATEMENT OF JUSTIN PETER NEWMAN PN68
EXHIBIT #R2 DOCUMENT HEADED 'DRIVER' AND DOCUMENT HEADED 'RULES OF CONDUCT, FORKLIFT DRIVERS' PN76
CROSS-EXAMINATION BY MR GILLESPIE PN78
RE-EXAMINATION BY MR DWYER PN276
WITNESS WITHDREW PN306
RODNEY BRETT KAUST, AFFIRMED PN307
EXAMINATION-IN-CHIEF BY MR DWYER PN307
EXHIBIT #R3 STATEMENT OF RODNEY BRETT KAUST PN315
CROSS-EXAMINATION BY MR GILLESPIE PN324
EXHIBIT #A2 ROSTER PN384
EXHIBIT #3 LICENCE CLASSES AND CODES FROM TRANSPORT QUEENSLAND PN396
EXHIBIT #A4 TRANSPORT OPERATIONS ROAD USE MANAGEMENT ACT 1995 PN397
RE-EXAMINATION BY MR DWYER PN447
WITNESS WITHDREW PN482
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