C2003/4628, Transcript of Proceedings [2003] AIRCTrans 4067 (16 September 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

C2003/4628

THE AUSTRALIAN WORKERS' UNION
AND ANOTHER

and

GH MICHELL AND SONS PTY LIMITED

Notification pursuant to section 99 of the Act
of an industrial dispute re restructure of
workforce and accompanying redundancies

ADELAIDE

12.09 PM, THURSDAY, 28 AUGUST 2003

PN1

MR J. BRAITHWAITE: I appear on behalf of the Australian Workers' Union. Appearing with me is MR FAULKNER and GARNETT, site delegates.

PN2

MR B. JOHNSTON: I appear on behalf of the CEPU Electrical Division.

PN3

MR S. BRENNAN: I appear on behalf of the Textile, Clothing and Footwear Union and appearing with me are two delegates from the site, JAMES HOOPER and ROSS COX.

PN4

MR R. BONIG: I appear on behalf of the employer and I have with me MR WILLIAMS and MS BRADLEY from the company.

PN5

THE SENIOR DEPUTY PRESIDENT: Mr Bonig, do you need to seek leave to appear?

PN6

MR BONIG: I do need to seek leave. Yes, sir.

PN7

THE SENIOR DEPUTY PRESIDENT: I see. Thank you. Mr Braithwaite, Mr Johnston or Mr Brennan, does anyone have any objection to Mr Bonig's application for leave.

PN8

MR JOHNSTON: Yes, sir. We do. Under section 42(3)(b) and if I may read it out. It says:

PN9

By leave the Commission ...(reads)... that the parties may be so represented.

PN10

We don't believe that there are special circumstances in this issue.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes. Very well. For the initial issue is whether or not there is consent and you are indicating to me, Mr Johnston, that certainly the CEPU do not consent.

PN12

MR JOHNSTON: That is correct, sir.

PN13

THE SENIOR DEPUTY PRESIDENT: Do the other unions share the same concern?

PN14

MR BRAITHWAITE: The AWU does, sir. The document that was provided to the Commission with the notification was constructed by the company without representation so they should answer to it themselves, if the Commission pleases.

PN15

THE SENIOR DEPUTY PRESIDENT: I just need to know at this stage whether there is no consent. Mr Brennan, do you stand in the same position?

PN16

MR BRENNAN: The TCFU is in consent. We are.

PN17

THE SENIOR DEPUTY PRESIDENT: Thank you. Very well. Mr Bonig, you are going to need to demonstrate to me why it is that in accordance with section 42 of the Act, in particular 42(3), I should grant leave to you to appear?

PN18

MR BONIG: Your Honour, this is quite a complex matter in terms of a significant restructure within the company. It involves a range of issues. You may recall, your Honour, we've previously been before you on a conciliation in relation to a 4-week close down and, at that point in time, it was indicated that there was some - this company was facing some difficulties.

PN19

THE SENIOR DEPUTY PRESIDENT: Did you appear in that one?

PN20

MR BONIG: I appeared in that. Yes, sir. I appeared on that occasion and I previously, shortly prior to that, also appeared on other application which related to a reduction in the number of shifts from seven to five which didn't come on before you, sir, but that came on before this Commission and I appeared on both of those occasions. This has been a long history of attempts by the company to deal with the economic forces that are impacting on it and if you have had an opportunity to look at - I don't know what documentation was forwarded to you, sir, but the effect of what the company is going through at the moment is a reduction of its workforce of approximately 50 per cent. A complete restructure of the company.

PN21

Within that there are a whole host of issues that the company has had to deal with from the initial decision making through to the selection criteria, the process of the redundancies and so on. I have been involved, sir, in some areas, in advising the company on that process and although Mr Braithwaite is correct, I haven't drafted the documents or whatever documents you may have, but I haven't drafted the documents that are before the Commission. I've certainly been involved in discussions with the employer in relation to the process.

PN22

In terms of the complexity of the matter, without going into details as to the factual matters that are going to arise, it is probably difficult to demonstrate the complexities of the matter and it is maybe appropriate - and sir, it is also important that, from the employers' viewpoint, we don't know what the issue is that the various applicants here are seeking to agitate. The notice says that there is an issue concerning the announcement of the restructure and a failure to consult but we haven't had any elaboration as to what that issue is. It may well be more appropriate, sir, that you hear from the various applicants or their representatives as to what the issues are and get more of a feel as to what is in issue here before making any ruling on my application.

PN23

THE SENIOR DEPUTY PRESIDENT: I see. Well, it presents somewhat of a dilemma. What I propose to do, Mr Bonig, is I will allow you to appear in this matter save and except for two significant qualifications. The application is granted pursuant to section 42(3)(c) of the Act. I will provide the opportunity both now and any point requested in the course of proceedings in this matter to the three unions such that should any of the three unions request an adjournment of the proceedings so as to obtain legal advice or representation, I will allow that adjournment. The second signification qualification is that in the event that the parties request a conference and that I grant such a conference, then the question of whether or not you would participate in that conference remains to be determined.

PN24

MR BONIG: Sir, I accept that.

PN25

THE SENIOR DEPUTY PRESIDENT: I need to put you on notice that you may well not be invited to participate.

PN26

MR BONIG: I accept that, sir.

PN27

THE SENIOR DEPUTY PRESIDENT: Mr Braithwaite.

PN28

MR BRAITHWAITE: Thank you, sir. Mr Bonig's comments I find somewhat misleading. The union has met with the company on Monday and advised the company of the issues that were in dispute. We sought to resolve those matters and we advised the company we would be referring the matter to the Commission. The company was also forwarded a copy of the resolution from members outlining the issues that the parties sought to address so I find it somewhat misleading and somewhat questionable, the accuracy of Mr Bonig's submissions. I will hand that document up in a minute.

PN29

Sir, essentially, as the application indicates and accompanying the application was a copy of the restructured document. The company announcement was made on 18 August entitled: Michell Australia Restructure, August 2003, The Next Step Information Pack. As the Commission is aware, the company stood down employees for a period of 4 weeks ending on 14 August. The AWU made application at that time to the Commission, fundamentally suspicious of the company's direction. The company fought that application and to the extent that - - -

PN30

THE SENIOR DEPUTY PRESIDENT: Mr Braithwaite, can I just clarify a couple of issues. As you recall or be aware that I have a great many disputes before me, particularly at the moment and I don't recall the specific details. You have indicated there was a 4 week stand down that ended on the 14th.

PN31

MR BRAITHWAITE: On 14 August.

PN32

THE SENIOR DEPUTY PRESIDENT: Was that a 4 week stand down or was it a period of annual leave? If my memory serves me correctly, there was some debate over that issue.

PN33

MR BRAITHWAITE: It was characterised by the company as a 4 week stand down.

PN34

THE SENIOR DEPUTY PRESIDENT: I see.

PN35

MR BRAITHWAITE: They put to the union that if we fought the issue of stand down, they would withhold pay to those individuals.

PN36

THE SENIOR DEPUTY PRESIDENT: So were the employees paid for that 4 week period?

PN37

MR BRAITHWAITE: They were paid for it but it was characterised by the company as a stand down.

PN38

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN39

MR BRAITHWAITE: The unions met the company on Tuesday, 12 August, seeking advice on where the company were in relation to orders and what was said in the foreseeable future. We thought if the company was to make further reductions in the workforce or any steps which may impinge on the workforce, we sought that the company, in accordance with the enterprise agreement, which is the GH Michell and Sons Australia Proprietary Limited, Salisbury Site Enterprise Agreement 1996, that a consultative committee be convened. We were advised fundamentally that the company boards were meeting on Friday.

PN40

THE SENIOR DEPUTY PRESIDENT: I'm sorry to interrupt you again, Mr Braithwaite. The dispute notification references three awards. It is the Woolscourers and Carbonisers Award of 1987, which I think you will find has probably been updated.

PN41

MR BRAITHWAITE: That is correct, sir.

PN42

THE SENIOR DEPUTY PRESIDENT: The Textile Industry Award of 1994 which is now the Textile Industry Award of 2000 and the Metal Industry Award of 1984, which is now the 1998 award, if I understand it.

PN43

MR BRAITHWAITE: Just to clarify that point, sir, the enterprise agreement at clauses 3.1 - - -

PN44

THE SENIOR DEPUTY PRESIDENT: There is no reference made in the notification to the enterprise agreement?

PN45

MR BRAITHWAITE: No, sir, I didn't make it under LW I made it under a Section 99.

PN46

THE SENIOR DEPUTY PRESIDENT: I see. But do you have a copy of that enterprise agreement to give me because obviously, given that it is not referenced in the dispute notification, I don't have a copy with me.

PN47

MR BRAITHWAITE: I will hand a copy up when I reference the agreement.

PN48

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN49

MR BRAITHWAITE: Just to clarify, the reason for those awards stated as were, that was how they were listed in the agreement. As indicated earlier, we sought that those reductions or any changes that were going to be applied would, in fact, be via the consultative process. As can be seen by the restructured document, the company were well advanced at that time and the announcement on the 18th of those restructured documents. The issues that we seek to deal with, sir, are by way of correspondence by way of a memorandum which were conveyed to the company.

PN50

THE SENIOR DEPUTY PRESIDENT: The document you are handing to me, was a copy of that document held by any of the - or all of the parties to this matter?

PN51

MR BRAITHWAITE: Yes, your Honour.

PN52

MR BONIG: Dated 23 August.

PN53

MR BRAITHWAITE: Dated 23 August, sir.

PN54

THE SENIOR DEPUTY PRESIDENT: Yes, this is a - - -

PN55

MR BONIG: That has 7 points on it?

PN56

MR BRAITHWAITE: That is correct.

PN57

THE SENIOR DEPUTY PRESIDENT: This is the Textile, Clothing and Footwear Union of Australia memorandum albeit that it is from the TCFU, the AWU, the ETU and the AMWU. The memorandum is dated 23 August 2003 and I shall call it AWU1.

EXHIBIT #AWU1 MEMORANDUM DATED 23/08/2003

PN58

THE SENIOR DEPUTY PRESIDENT: It does actually raise a matter that I had overlooked of a housekeeping nature, Mr Braithwaite, that is simply that I should advise the parties that my associate endeavoured to contact the AMWU prior to the commencement of these proceedings to be advised that only that no-one was available to attend this hearing. Yes, Mr Braithwaite?

PN59

MR BRAITHWAITE: Just to go through the document, sir. The genesis of the document was a mass meeting held on the 23rd to report on the company's decision to restructure and the effects on employees. The first issue that members had concerns with is the timetable and I will go to the restructured document a bit later on. The criteria that:

PN60

All volunteers are accepted before any ...(reads)... for new conditions of employment.

PN61

Which raises the question, where the enterprise agreement stands, the no extra claims commitments that apply within that agreement and, in fact, where the annualised salary agreements that had been put in place in the various sections, where they stand.

PN62

4. The total renegotiating of an existing ...(reads)... feedback to employees after those negotiations.

PN63

If I deal with, firstly, the time frame, sir. On page 16 of the restructured document, at point 12, it highlights the key dates:

PN64

The communication was made on the 18th ...(reads)... close on the 29th.

PN65

Which is tomorrow, I think, if my dates are correct:

PN66

A review of expressions of interest by ...(reads)... compulsory redundancies on 12 September.

PN67

Essentially, the problem with the timetable, sir, is that it is impossible for employees to make a valued judgment when, in effect, they don't know what their conditions of employment are going to be. There is restructuring in classifications. There is a downsizing in respective areas etcetera. The second point I may need to borrow a copy of an agreement from one of my colleagues. If I just give the Commission a copy of the agreement.

PN68

THE SENIOR DEPUTY PRESIDENT: The document I have been given I will mark because I'm not absolutely certain as to its status. The document is headed or is identified as the GH Michell and Sons Australia Proprietary Limited Salisbury Site Enterprise Bargaining Agreement 1996. Mr Braithwaite, am I to understand that represents the latest version of the agreement?

PN69

MR BRAITHWAITE: That is my understanding, sir. When I took over responsibility I went looking for a stamped copy but everyone seemed to have the same one so I'm not sure exactly.

PN70

THE SENIOR DEPUTY PRESIDENT: Mr Bonig, is there any dispute as to that being the document that represents the current agreement applicable at the site?

PN71

MR BONIG: No, sir. I think on the final page of the one I've got, clause 24 appears to have been signed on 12 and maybe 13, on one occasion, August 1996?

PN72

MR BRAITHWAITE: That's correct.

PN73

MR BONIG: Yes. That is the one the company understands is the current version as well, sir.

PN74

THE SENIOR DEPUTY PRESIDENT: I see. Is this an agreement that has been certified in the Commission, Mr Braithwaite?

PN75

MR BRAITHWAITE: It is my understanding it is, sir, but I haven't gone back through the Commission's files to grab a copy.

PN76

THE SENIOR DEPUTY PRESIDENT: We will save that exciting task until an appropriate time.

PN77

MR BRAITHWAITE: That is correct, sir.

PN78

THE SENIOR DEPUTY PRESIDENT: Nevertheless, I shall mark the document.

EXHIBIT #AWU2 GH MICHELL AND SONS (AUSTRALIA) PROPRIETARY LIMITED SALISBURY SITE ENTERPRISE BARGAINING AGREEMENT 1996 OF UNDETERMINED STATUS

PN79

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Braithwaite?

PN80

MR BRAITHWAITE: The only reason I raise the agreement, sir, is that at clause 23 and 23 2.2.1 placitum 3,

PN81

While working through the consultation process, there will be no forced redundancies ..(reads)... balance of the operation is maintained.

PN82

I would only suggest at this stage, without pushing the point, that the consultation phase is still in place, we have a number of issues to deal with and that it would be inappropriate for forced redundees to be tapped on the shoulder on 12 September. Item 3, a total rejection of the company's ideas to the new conditions. Essentially, the company has three written classification structures and training and development operations at items 3, 4. In the appendices, as far as structures go, if I go to the fifth - the one that I'm talking about, sir, there is no number - page 12, sorry.

PN83

THE SENIOR DEPUTY PRESIDENT: This is called organisational structure production October 2003?

PN84

MR BRAITHWAITE: That is correct, sir. If I deal with the right-hand side where it talks about wet. It talks about a shift leader and then 8 process technicians and 3 shifts. The annualised salary agreement that I mentioned earlier - and I don't intend to go into detail at this stage, this will probably happen at further proceedings if it is required - talks about manning arrangements, "the current manning levels will 9 per shift, 1 spare." We haven't been consulted about the amendments to the annualised salary agreement, so we make the point there.

PN85

Item 4, which is to do with a new improved redundancy agreement and conditions of employment to be contained in a certified agreement. Essentially, sir, if the company want to go through a restructuring, we would say where it contradicts the terms of the current agreement, then they should sit down with us and negotiate an agreement. You will note that that agreement was finalised back in '96, we are now in 2003. We would say that if the company were prepared to work through the proper processes, then those outcomes can be looked at.

PN86

Item 5, which is the clarification of rates of pay. Essentially, sir, the agreement again has a provision at 23.12.2 that says,

PN87

The rate of pay on which these entitlements will be based will be the employees ...(reads)... will be the basis for calculating these entitlements.

PN88

That, sir, is a big issue for those people in the wet processing section, in particular, who were taken off 7 day roster and should have the redundancies or restructuring been announced prior to the 1 month stand down, then those people would have been entitled to be paid out at the 7 day shift rate, which runs into many thousands of dollars. So that is the background to that particular item.

PN89

Item 6, clarification that the company agrees to pay long service leave on a pro rata basis after 5 years. It has been confirmed by the company that at previous occasions in October and March, the company did pay pro rata of 5 years at the time of those redundancies. So sir, they are the six matters that we are in disagreement over. I haven't gone into detail in respect to the restructured document. It will largely depend on how the company respond on whether there is an ability for the parties to move forward collectively, or whether in fact, we need to look at other areas to deal with these matters. If the Commission pleases.

PN90

THE SENIOR DEPUTY PRESIDENT: Mr Braithwaite, before you sit down. Attached to the application was indeed the document that I understand is called: the next step information pack. When whoever did the photocopying undertook that role, it may be that they didn't take into account that the document may be printed on two sides of the page, because in the majority of cases I only have even numbered pages.

PN91

MR BRAITHWAITE: No. It is a single document, sir and I take full responsibility because I put it on the fax machine myself as one document.

PN92

THE SENIOR DEPUTY PRESIDENT: Then let me tell you what I have. I have the cover page, I have a contents page, I have a blank page following that with the next page being headed: our operations philosophy. I have a page 5 called: the new structure explained. Now, tell me if I'm going too fast for you.

PN93

MR BRAITHWAITE: Well, Commissioner, to highlight the absolute efficiency of the AWU, I will submit a copy to you.

PN94

THE SENIOR DEPUTY PRESIDENT: I'm listening carefully, Mr Braithwaite, because you are non verbals don't seem to imply that level of efficiency, but I am listening carefully.

PN95

MR BRAITHWAITE: Yes. I can actually - but I'm not going to give you my bulldog clip because mine will fall apart. No. Just to show my efficiency, I will even donate the bulldog clip.

PN96

THE SENIOR DEPUTY PRESIDENT: Thank you. It might be best if I mark this document.

EXHIBIT #AWU3 MICHELL AUSTRALIA RESTRUCTURE AUGUST 2003 THE NEXT STEP INFORMATION PACK

PN97

THE SENIOR DEPUTY PRESIDENT: It may be that some of the information that I'm now about to seek from you is covered in that document AWU3, Mr Braithwaite. Can you tell me how many employees you understand are to be made redundant by either voluntary or involuntary means?

PN98

MR BRAITHWAITE: The figure, sir, is - we understand there's 100 from the blue collar ranks and approximately 30 from the white collar.

PN99

THE SENIOR DEPUTY PRESIDENT: Can I then ask you to have a look at the document AWU1 which is the 23 August memorandum. Am I correct in broadly grouping the issues that you say were in dispute, into three categories. The first category is, there appears to be a dispute over the time frame within which the next step restructure is proposed to occur. There appears to be a dispute over the circumstances under which redundancy arrangements might apply - I will rephrase that. There appear to be four categories of dispute.

PN100

There appears to be a dispute over what working arrangements will apply for the future, that is subsequent to the implementation of this restructure. Lastly, there appears to be a dispute over what payment arrangements will apply to those employees who are to be made redundant. Is that a correct categorisation of the issues that are in dispute?

PN101

MR BRAITHWAITE: It is, sir, but there's one that has been missed out. It relates to workers compensation issues. There are a number of people on workers compensation who need to sort out those workers comp matters prior to termination for the purpose of mutuality. That is a procedural issue that needs to be sorted out as well. But yes, other than that sir, you are correct.

PN102

THE SENIOR DEPUTY PRESIDENT: Well, then, looking at those four issues, how would you categorise the level of urgency of the four issues?

PN103

MR BRAITHWAITE: Sir, from our point of - - -

PN104

THE SENIOR DEPUTY PRESIDENT: Are they all equally urgent or is it conceivable that the issues associated with redundancy might be placed in advance of the issue associated with working arrangements subsequent to the restructure taking effect? Or are they all incapable of being differentiated?

PN105

MR BRAITHWAITE: I think there's some link between each of them, sir, in that there will be some people who are in limbo in respect to whether they take a package or whether they stay, if they know what their position is going to be and what conditions they are going to work under. There will be another set of employees who have made their absolute decision that they wish to take a package and leave and then there will be those who seek to remain. But broken down, I guess, into those who want to know what they are going to be doing versus those that know, I suppose, they will remain in their current positions.

PN106

THE SENIOR DEPUTY PRESIDENT: A final question, then. Specifically, what is it that you are seeking from the Commission today?

PN107

MR BRAITHWAITE: Sir, what we are seeking basically today, is a recommendation firstly from the Commission that the company sit down with the unions and look at those issues which need to be addressed as far as working conditions that would fall into the variation to the current agreement or, more probably, which would be most effective, a replacement agreement for the '96 agreement and deal with those issues associated with those redundancy issues.

PN108

THE SENIOR DEPUTY PRESIDENT: Are you proposing a time frame for those discussions, Mr Braithwaite?

PN109

MR BRAITHWAITE: We haven't gone into detail at this time, sir, purely because of the lack of understanding of the company's position, whether they are prepared to move into that area. Today, as I say, was to firstly get things rolling. If in fact, the company aren't interested, then we have to look at other areas.

PN110

THE SENIOR DEPUTY PRESIDENT: I see. Thank you. Mr Johnston?

PN111

MR JOHNSTON: Sir, I've got nothing further to add, other than Mr Braithwaite covering the future. My understanding is that of the three electricians currently employed there will be two with the restructure and there are a number of issues that relate to legislation that need to be addressed if there are two electricians to remain on site. We haven't had that opportunity to sit down and discuss with the company how they intend meeting those legislative requirements.

PN112

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Brennan?

PN113

MR BRENNAN: Sir, I concur with both my colleagues in regard to the statements they have already made. There are a couple of issues I would also like to highlight if I may. The first is that there has been complete disregard of the existing certified agreement and your statement earlier that it refers both to the Textile Award 1994 and other updated awards, is correct, but as we are still covered by this 1996 agreement, the Textile Award 1994 still applies.

PN114

It also refers quite specifically there, under clause 8 of that agreement which is: measures to achieve gains in productivity, efficiency and flexibility, schedules C and D of the Textile Industry Award. Schedule C specifically of the Textile Industry Award is consultative committee and the need for the employer to consult by the consultative committee - under schedule C part C(ii), (iii), (iv) and (vi) - specifically outlines the need for the company to detail areas of change that they see as occurring on their site.

PN115

To read those to you, part C of schedule C of the Textile Award in regards to consultative committee, (ii) reads,

PN116

To review the implications and or impact on the enterprise of major external influences including the Australian Government Textile Clothing and Footwear Industry Development Plan.

PN117

I would also insert in there from the company's own document, "the current state of the wool industry in Australia."

PN118

(iii) To consider the introduction of new or revised work methods and or work arrangements.

PN119

I would bring the Commission's attention to AWU document 3. On page 4 of that document, and I quote a statement from Mr Bernie Williams saying that,

PN120

We must be flexible in our approach to work. Restrictive demarcation lines will only hamper our ability to produce in a cost effective manner.

PN121

He goes on further to say,

PN122

...how this package outlines the roles and responsibilities within our new structure and details the process which we will follow to achieve it.

PN123

The reason I mention that is that, contrary to this document, no consultation was entered into and if we are to believe the company, the document was created after a management meeting on a Friday and given to the employees on a Monday. I go on in regards to schedule C Part IV which reads:

PN124

To give consideration to the impact of technological change and other significant changes ...(reads)... skills and additional training requirements.

PN125

Which again, I believe, are clearly indicated in the company's document, AWU3. Finally, the last point was:

PN126

(vi) To assess proposed changes in product or product orientation for possible impacts ...(reads)... employment and skill requirements.

PN127

Because of those reasons, I believe that is why we are here before you today in regards to the company's total lack of complying with the existing certified agreement and award under which we currently work and statements made by the company in that document, specifically AWU3 again and statements made by Bernie Williams in regards to his proposed new regime after the redundancies occur. Further to the quotes I've made in regards to that document, I can also quote page 5 under the heading: the new structure explained, it says quite clearly,

PN128

We must do things differently to achieve our goals.

PN129

It goes on in the next paragraph, saying: instead of - basically, the existing programme, they want to change it. Our issue, which has been clearly communicated to us by our members, is that we have no concept of what that new regime is, or what things will be done differently, or what expectations, what pay rates will be expected of employees in the future. Therefore, in attempting to answer your question earlier to my colleague, Mr Braithwaite, it is certainly our position that it is almost impossible for an employee to nominate themselves for voluntary redundancy until they are aware of the regime under which they will work in future.

PN130

We believe that that situation has occurred because of the company's total lack of communication under the existing agreement and the existing award, which requires them to work through this process with the consultative committee, which would involve site representation, but apart from that, I concur with statements which have been made by my colleagues. If the Commission pleases.

PN131

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Brennan. The employer's view?

PN132

MR BONIG: Sir, there maybe some issues that I might - that have been raised and I might need some instructions on, but I will deal with the bulk of them on the instructions I have at the moment. Sir, this decision to enact what is a significant restructure of the business was taken on the afternoon of Friday - I think it would have been 15 August, by the board and was conveyed in a number of ways to the various parties concerned. As you may recall, sir, we were before on the dispute in relation to the 4 week closure which was held or which occurred in the 4 weeks prior to 18 August.

PN133

The company at that stage was flagging issues about production and lack of production and the future of viability of the company, but the company was at that point in time its principle desire was to maintain its skill base and not go down the path of enacting redundancies and fortunately the anticipated or hope for improvement in the market didn't eventuate and the company made the decision to enact a process of restructure in the way that it conducted its business which unfortunately also results in a reduction in staff levels.

PN134

It is quite a far ranging restructure, sir, in that what the company has decided to do at the management level, the board level, was to in fact cease production or cease work in that principle area of the company that it is engaged in for a number of years and that is the milling area of the company. It has, as a result of economic impact, looked at the viability of that part of its plant and has decided to abandon that as part of its business Australia wide. The effect of that is that there are then two principle areas of the business. Sorry, there was another ancillary area of the plant that will also not be producing in the future and that is in relation to the scouring part of the plant.

PN135

The effect of that is that there are two areas of the plant that will remain in production, being the carbonising part of the plant and the what is also - what is then known also is the super-wash and specialty finishing part of the plant. Now rather than just deal with the employees in the mill and the scouring part of the plant separately, the company has looked at its manning levels across the entire plant and therefore has made an assessment as to the level of manning that it needs to operate that part of the plant that will remain in production and has on that basis, indicated in the information pack that all employees across the plant are invited to apply for voluntary redundancies in an attempt to achieve the manning levels the plant requires.

PN136

The affected number, sir, is somewhere between 80 to 100 employees as opposed to 100 to 130 that I think was indicated to you earlier. The company having made that decision informed the affected staff in a number of ways. At - first thing in the morning on 18 August there was a - there were telephone calls placed to the various union officials who cover the employees on site to advise them that a restructure was going to take place. That same morning, the various department managers were advised of the restructure, followed by office staff and production and administration staff.

PN137

Then the site union delegates were advised that morning and were provided with the information pack that you have together with a copy of what at that stage were the draft selection criteria for employees who may - if there weren't sufficient voluntary redundancies then would - the company, as the information pack indicates, would need to proceed to forced redundancies and note the union delegates were provided with a draft of the selection criteria for those employees at that point in time and asked for feedback on that document.

PN138

Now, that is not a document that those delegates had seen for the first time. The company went through a series of redundancies in March of this year and a - there were some selection criteria that were used on that occasion. The union delegates at that time expressed some concern about certain aspects of the document and those - that feedback was used to generate the document that was distributed on 18 August. So the document in its entirety was not new. But certainly the company indicated that it was only a draft document at that stage.

PN139

At that same time, following the phone call to the union officials, the announcement was confirmed by fax and the information packs were distributed to the union officials by facsimile transmission and later that morning there was then an announcement to all of the operational employees. Mr Braithwaite attended at the plant that afternoon of 18 August following an invitation to all union officials to attend for a meeting that afternoon to discuss the announcement, to discuss any concerns that were raised in respect of the announcement. Mr Braithwaite was the only union official who attended on that occasion.

PN140

There was then, sir, on 20 August, 2 days later a meeting with the union delegates to discuss the selection criteria and I should say at this point, sir, that all employees are being assessed under the selection criteria whether or not they have indicated their desire to accept a voluntary package or not. So there was a meeting on 20 August with the union delegates to discuss the selection criteria. A number of areas of concern were raised and the company indicated that it would take those on board and there apparently - the union delegates asked for some additional time to provide feedback to the company on the criteria and the company agreed to provide that additional time or extend the time for feedback to 22 August.

PN141

On 21 August, the following day the Thursday, there was a - during the course of the morning, all operational employees were involved on a rolling basis, not all - not all simultaneously but groups, after groups, after groups, in a follow up communication session with the - - -

PN142

THE SENIOR DEPUTY PRESIDENT: What day did that commence?

PN143

MR BONIG: That was on Thursday the 21st.

PN144

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN145

MR BONIG: And covered all of the employees that morning. It took up until - - -

PN146

MR WILLIAMS: Midnight.

PN147

MR BONIG: - - - midday that day.

PN148

MS BRADLEY: Midnight.

PN149

MR WILLIAMS: Midnight.

PN150

MS BRADLEY: It went the whole - - -

PN151

MR BONIG: Sorry, we went until midnight covering all of them employees on the various shifts as and when they arrived at work. There were questions and answers and in particular the company was keen to ensure that all of the employees had the information pack, that all of the employees had seen the draft selection criteria and were aware that there was an opportunity to provide feedback in relation to the selection criteria. The - what then occurred, sir, was the - as we understand it a stop work meeting on 23 August - - -

PN152

MS BRADLEY: 22nd.

PN153

MR BONIG: - - - 22 August - sorry, yes, 22 August, sir, which generated the memo of 23 August. The - following that meeting, the various union officials requested a meeting with the company on 26 August to discuss concerns that had arisen out of that stop work meeting and in fact ultimately it was agreed that that meeting would take place on Monday 25 August. At the meeting on 25 August the company and the various union - site union representatives and officials who attended went through each one of the issues that is identified in the memorandum that you have, and discussed with the various people present, what the company's attitude to those - to the issues that were raised.

PN154

You will see, sir, that the first issue that was raised was the rejection of the company's timetable and the company at that point in time indicated that this whole process from start to finish is really a 1 month process. That as each day goes past the company is not in a financial position - sorry, is in a worse financial position than it was on any previous day and indicated that the timetable could not be extended at its end date as any extension would significantly compromise the long term viability of the company.

PN155

The second issue that is raised in the memorandum is as we understand the issue, an issue that all volunteers be accepted before any targeted or forced redundancies occur. Sir, in the EBA that has been handed up to you, clause 23 deals with the issue of redundancies and in particular clause 23.2.1(ii) which on my copy of the agreement, is at the top of the page following.

PN156

THE SENIOR DEPUTY PRESIDENT: Yes, this is the paragraph that begins with the word, "voluntary redundancies?"

PN157

MR BONIG: Yes, sir, and what that clause in effect, as we understand it to be means, is that the company will consider all voluntary redundancies and will certainly give a preference to employees seeking voluntary redundancies, but needs to take into account the long - the ongoing needs of the organisation and in relation to - but the ultimate outcome that the company needs to achieve is to enact the structure that it has decided to move forward with and to do that it needs to have a core of work-force employees and it can't achieve that core by splitting the redundancies in half.

PN158

It cannot deal with all of the forced redundancies - all of the voluntary redundancies and then leave another, what in effect is another quarter of the work-force that it needs - that it does not need, still employed in effect doing nothing because the company is half-way through its re-structure phase. It is just not viable for the volunteers to all be dealt with and exit the company before one has a look at the targeted or the forced redundancies. The third item, sir, is what the union describes as a total rejection of the company's ideas for the new conditions of employment. There are no new conditions of employment, sir.

PN159

At all times it has been made quite plain that the conditions of employment are pursuant to the various awards that would apply, but more particularly pursuant to the provisions of the EBA which the company still considers to be in force. There maybe some re-naming of certain positions, but in essence the employees - and some employees may move from one part of the plant for instance the milling plant where they are now employed if they remain to one of the other parts of the plant that is going to remain. The terms and conditions of their employment will be as per the award or the EBA and the EBA, sir, contains the usual clause to the effect that the EBA takes precedence where there is a dispute terms of the awards.

PN160

THE SENIOR DEPUTY PRESIDENT: Mr Bonig, there are two questions that I have of you in this respect. The first is that if my memory serves me correctly, in the course of the one or more conferences that I had with the parties relative to the dispute over the 4 week close down or annual leave period, however it was so described in the end. I was provided, if I it recall correctly, with a copy of what purported to be an agreement. It certainly didn't appear to be a registered document and if my memory serves me correctly, Mr Braithwaite conjured this document marked with coffee stains etcetera.

PN161

And I don't suggest though that it was Mr Braithwaite's coffee in any way, but the document appeared to characterise arrangements for the working of some form of collective or annualised or group salary structure.

PN162

MR BONIG: It was an annualised salary agreement, yes, sir.

PN163

THE SENIOR DEPUTY PRESIDENT: Now, that document, I don't see it all referenced in the 1996 agreement but if I recall it correctly, the parties were not disputing the authenticity of the document?

PN164

MR BONIG: No, sir, I don't think the parties do and I think that document came into existence in 1998, so post the 1996 EBA and I think what - - -

PN165

THE SENIOR DEPUTY PRESIDENT: Yes, the coffee appeared on it at a later date I think, but - - -

PN166

MR BONIG: Well, Mr Braithwaite is not owning up to - - -

PN167

MR BRAITHWAITE: I think it is still on file, sir - - -

PN168

MR BONIG: And as far as I think the parties are concerned at that, that is an agreement that has been filed or registered somewhere in the Commission and is certainly an agreement by which the parties have operated since 1998 in terms of the salary arrangements that apply.

PN169

THE SENIOR DEPUTY PRESIDENT: So what are you saying to me about that arrangement in the context of the proposed re-structure?

PN170

MR BONIG: That arrangement to the extent has - it is either contained in that document or has been varied because of the variations in relation to shift structures, as I understand still applies and will continue to apply.

PN171

THE SENIOR DEPUTY PRESIDENT: Is anyone's salary changed or impacted upon by this proposed restructure?

PN172

MR BONIG: Not as far as I'm aware, sir. That is an agreement that obtains its force from clause 22 of the EBA amongst other legislative enforcements referred to in clause 22.

PN173

THE SENIOR DEPUTY PRESIDENT: Now, you referred me to clause 23.2(ii).

PN174

MR BONIG: Yes, sir.

PN175

THE SENIOR DEPUTY PRESIDENT: How should I read that provision in the context of 23.2.1 and in particular the references to the site consultative committee?

PN176

MR BONIG: I was going to come to that, sir.

PN177

THE SENIOR DEPUTY PRESIDENT: I see, don't let me distract you, I'm happy to wait.

PN178

MR BONIG: No, I will come to deal with that part of it in response to one of the other issues I think that Mr Braithwaite and his colleagues have raised. Sir, I think I just dealt with Item 3 in relation to the rejection of the company's ideas for new conditions of employment by suggesting that there are in fact no new conditions of employment as such. I think Item 3 leads into Item 4, which is, in effect I suppose, a request that there be a total renegotiation of the existing certified agreement in relation to a whole host of issues. That may well be a matter that the parties should embark on down the track, but it is not a matter that should influence the manner in which the company deals with this restructure at this point in time. The company can only deal with this restructure in accordance with the terms of the awards and the EBAs and the other agreements that are in force at the moment.

PN179

The company says that there are no new conditions of employment and, therefore, the new employees will continue to be renumerated in accordance with the existing agreements. If there is a genuine concern by the various parties represented by the concerned employees that there is some new condition of employment, or that the employment has markedly changed in some way, then, some future agreement in relation to the manner in which these employees should be renumerated is a possibility, but to bring that into the context of how this company should at this point in time deal with the crisis that it finds itself in, in my submission, is not a concern that arises out of this current decision to reduce its work-force.

PN180

Item 5 is clarification of the rates that employees are to be paid out. Our position, sir, is that the clause in the EBA is quite specific in terms of how redundancy payments are to be calculated and that requires the company to pay employees whose pay has been - 23 at 12.2, I think, sir, is the - - -

PN181

THE SENIOR DEPUTY PRESIDENT: 23 point?

PN182

MR BONIG: 23.12, sorry.

PN183

THE SENIOR DEPUTY PRESIDENT: 23.12.

PN184

MR BONIG: It is in fact 23.12.2, I think, the clause that is in issue here. As I understand the position, the complaint that is made is that if these redundancies had been made a month ago before the annual close down - the 4-week annual close down was put in place - then some employees who were reduced from a 7-shift roster to a 5-shift roster, would receive a higher pay out than they are now going to receive.

PN185

The short answer, sir, is that the redundancies weren't affected a month ago and in any event, sir, the effective date is the date upon which the employee's employment is terminated, not the date upon which the decision is made and the effective date for the conclusion of the employment of the employees I think is 11 or 12 September so, in effect, it will be a period of four months since the reduction from the 7-week to the 5-week was implemented, and whether or not there has been a 4-week close down in the middle of that does not impact on that calculation.

PN186

The other situation, sir, is that historically - and I think as recently as March of this year - there have been other instances where employees have taken a reduction in pay, or have had their pay reduced shortly prior to redundancy being enacted. It is a question of how far - if one wants to go back beyond 3 months, what is the cut off point? There has to be a cut off point. The cut off point is quite clearly 3 months and as I've indicated the affected employees will in effect have been on their current salaries for a period of at least 4 months by the time the date of termination takes effect.

PN187

All of these issues, sir, that I'm explaining to you were explained and taken and the various union officials were taken through these issues and explained to them at the meeting on the 25th, and I'm really only repeating and reiterating what was explained to them on that occasion. Item 6, sir, there is no issue with Item 6. As I understand my instructions the company has agreed to pay pro rata after 5 years and that was conveyed to the various union representatives on 25 August so Item 6 - - -

PN188

THE SENIOR DEPUTY PRESIDENT: So presumably in that regard the company is saying that it would apply provisions which are in excess of those set out in 23.10.1 of the agreement?

PN189

MR BONIG: Yes, sir. I think that historically the company has done that and that is why the query was raised on this occasion as to whether or not the company would abide by its past practice in terms of its calculation of pro rata long service leave. So as far as we are aware, Item 6 is not an issue. Coming back then to what was sort of superimposed on some of those issues was this issue of consultation. The company says that it has consulted, it has given the various parties opportunity to comment, it has met on various occasions, it has taken the comments into account. The selection criteria have been re-worked, taking into account those comments.

PN190

Clause 23.2, which talks about consultation and selection process, talks about consultation with a Site Consultative Committee. As a result of the effluxion of time since 1996, the Site Consultative Committee gradually disappeared from its usage within the company structure and has been replaced, sir, approximately 3 years ago, with what is now known as "Area Consultative Committees". So instead of having one Site Consultative Committee covering the whole site, there are Area Consultative Committees, as I understand it, covering the various areas within the site.

PN191

THE SENIOR DEPUTY PRESIDENT: So how many of those Area Consultative Committees are there?

PN192

MR BONIG: Three, sir. There is one for the mill, one for the carbonising and one for logistics. Those Consultative Committees meet on a monthly - or historically should meet the intention is - should meet on a monthly basis, with the last meeting being one month prior to the annual close down which has just occurred. Those Committees and the concept of "Site Consultative Committee" arises out of clause 10.1 of the EBA. In clause 10.1:

PN193

Establishes a Site Consultative Committee for the purposes of identifying and investigating issues relevant to improving productivity, flexibility and efficiency.

PN194

That function is now taken up by the Area Consultative Committee and I'm instructed that those concepts of productivity, flexibility and efficiency are the types of issues that are raised at those meetings. The requirement of 23.2.1, is that the company consult with the employees and the Site Consultative Committee, or we say in this case the Area Consultative Committee, in relation to determining the employees to be retrenched.

PN195

If one then goes on and has a look at the rest of 23.2.1, what it appears to do is to set out the sorts of things that should be considered by way of selection criteria, and the company says that it has consulted within the meaning of 23.2 by distributing the assessment forms, not only recently, but as recently as March, and I think they were also distributed in a series of redundancies before then, but certainly as recently as March. Has taken feedback from the employees, the union officials and the various people concerned, and more particularly has distributed the selection criteria in this current process on 18 August, had discussions on 20 August, general discussions with all employees on 21 August and further discussions on 22 and 25 August.

PN196

I am also instructed, sir, historically the Site Consultative Committee was made up of the site union representatives, so the extent that the EBA may require compliance with consultation with the Site Consultative Committee, that has in effect occurred because of the meeting on 18 August with all of the site union officials, the representatives, at which point in time the selection criteria were distributed, or assessment criteria were distributed and feedback was asked or called for.

PN197

The effect of clause 23.1, is to require the company to consult. It does not impose, firstly any mandatory obligation on the company to take on board any of the recommendations that are made, although in this case the company says that it has and the company says that the selection criteria that it has implemented do take into account subplacitums i, ii and iiiq, in terms of the process that it has indicated that it wishes to follow and has followed to date.

PN198

From the company's viewpoint, sir, the company says that it has addressed the issues that have been raised by the various parties that are before you and has put forward a process that is fair and reasonable to all. I don't know that at this stage - unless you have any questions I can - - -

PN199

THE SENIOR DEPUTY PRESIDENT: Yes, I do have some questions, Mr Bonig.

PN200

MR BONIG: Yes, sir.

PN201

THE SENIOR DEPUTY PRESIDENT: Whereabouts, in the Information Package To Employees, which I have called AWU3, is it specified that those employees who remain subsequent to the restructure will receive the same rates of pay as that which is now applicable?

PN202

MR BONIG: It is not stated in there.

PN203

THE SENIOR DEPUTY PRESIDENT: Yes, well, then, how do you put to me that employees would be aware of that?

PN204

MR BONIG: That was conveyed verbally to all of the employees at the information sessions that they have attended, firstly, when the Information Package was distributed and, secondly, in the second round of information sessions which occurred on 21 August. Thirdly, sir, at the meeting between the company and the various union officials and representatives on 25 August. They were questions that have been asked and answered.

PN205

THE SENIOR DEPUTY PRESIDENT: I see. The program for the restructuring. You mentioned an financial imperative. Are you able to give me any more detail in that respect, that is, what prompted on Friday 15 August, the employer's management deciding on what would have to be categorised as a fairly substantial restructure and what determined that that restructure had to be put into effect by Friday 12 September?

PN206

MR BONIG: In very recent times, it is fair to say that the company has not even been treading water, has been losing significant amounts of money on a weekly/monthly basis. The company looked at - well, as with any business it hoped that things would turn around. The first step that the company took in terms of attempting to address the issue was the reduction of the seven shifts to five shifts, because there was just not enough production. The next step was the annual - 4-week annual close down, which was the matter before you, sir, six weeks ago.

PN207

On both of those occasions when we were before the Commission the company indicated that it hoped and had a reasonable belief, but certainly hoped, that its orders and the amount of production that it had would increase. There were seasonal factors that played a part initially, which the company hoped - in fact, on top of seasonal factors there were even such impacts as the SARS virus and things like that in terms of its Chinese market and so on which played factors.

PN208

The company hoped that all of those things would resolve themselves with the level of orders and therefore productivity increasing. The company has for a significant period of time been unable to compete with the overseas market in terms of its milling operation and that part of the plant has been running for a significant period of time and at very, very significant losses.

PN209

During the 4-week annual close down - and I think we indicated this to you when we were before you on the last occasion - the company hoped that the seasonal downturn and so on would resolve itself and that the orders would improve. It didn't happen and the company has had to have during that period of time a long close look at itself.

PN210

It was the fact that during that 4-week period the expectations that the company had and the hope that the company had in relation to its future productivity when those expectations and hopes weren't realised, the company then had no alternative but to make a decision as to how it could best continue to operate without losing significant sums of money. It is losing very, very substantial sums on a daily basis.

PN211

With the benefit of hindsight, maybe these redundancies could have occurred six months ago, but the company on all of those occasions indicated that it wanted to maintain its manning levels because it has a particular skill-base, which it has invested time and money in, in respect of these employees, that would be hard to replicate if it lost those employees and then productivity and/or orders improved, so at that point in time it was prepared to wear the losses with a view to looking to the future. It can't do that any longer. The imperative nature of the timing - I mean, from the company's viewpoint, ideally, it would like to you know implement something today because as each day goes past it is losing significant sums.

PN212

One month to enact this whole process in our submission is not unreasonable. I mean, from the union's viewpoint they have had this material for one and a bit weeks. If there were some really significant serious concerns I'm sure we would have been before the Commission earlier.

PN213

The one month has really been calculated by looking at what each one of the steps that are necessary to take to implement this procedure in terms of the time frame and the timing are going to take. What is reasonable for the employees to look at to consider their position, what is reasonable for this whole process to go through for employees to seek information and be given information, what is reasonable from the company's viewpoint in terms of the selection criteria in assessing all of that and what is reasonable in terms of the employees being able to make an informed assessment.

PN214

So all of those time frames were worked out on a daily, weekly basis and you then come out to this one month from the date of decision making. As I said, the imperative nature of it is probably historically 6 months or so on in the past and as every day goes past it becomes more important to implement it. I hope that has answered your query, sir.

PN215

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Now, two other questions. Are you able to tell me how many expressions of interest for voluntary redundancy have been received to date?

PN216

MR BONIG: Fifty-three and I think it is also fair to say - that is not just production staff. That is office areas and so on.

PN217

THE SENIOR DEPUTY PRESIDENT: How many in the production area?

PN218

MS BRADLEY: Probably more like 48 I think.

PN219

MR BONIG: Forty-eight and I think it is fair to say that in recent terms, and I mean recent, since the stop work or since the meeting on 22 August 2003 those numbers have significantly dried up. The expressions came in earlier rather than more recently.

PN220

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. The last question for you. Can I take you to the enterprise bargaining agreement and in particular to clause 11 of that agreement? 11.1.17 refers to the possibility that a matter not resolved be referred to the Australian Industrial Relations Commission and it continues to say that the parties agree to abide the Australian Industrial Relations Commission rulings and recommendations and the parties reserve their right to appeal. Just as you have referred to various provisions of that agreement, can I take it that the company's position is that it continues to consider that provision remains relevant?

PN221

MR BONIG: Yes, sir.

PN222

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Bonig.

PN223

MR BONIG: I should just say, sir, I think before - I mean we consider it relevant but it is important before that condition is enacted that the actual dispute itself and therefore the recommendation that is made consequent on that dispute be clearly delineated.

PN224

THE SENIOR DEPUTY PRESIDENT: Yes, indeed. Mr Braithwaite, I have a practical dilemma confronting me this afternoon that I need to address with you before I proceed. I have a succession of matters listed, the first of which is already now 5 minutes late. It appears to me that there are three options that I wanted to put to you. One option is that if your reply is going to be of only a brief nature, I could proceed to try to finalise the matter now so that at least I could at minimum go away and consider what it is you are putting to me.

PN225

Alternatively I'm happy to list the matter for substantially later this afternoon or alternatively again I could list the matter for tomorrow morning in which case it would be very early tomorrow morning. The reason for wanting to put those three options to you at this point is that it does seem to me that there is some information that has been provided by the employer that you might want to take on board. I'm very much in your hands. Can you give me an idea of which of those three options would particularly appeal to you? And I should say that if you want to confer with your colleagues, feel free to do so.

PN226

MR BRAITHWAITE: I intend to do that, sir, if I may. I'm always brief. Sir, if possible we would like to finalise it now because of availability issues. I can be brief but my colleagues also wish to make a comment or two.

PN227

THE SENIOR DEPUTY PRESIDENT: Yes. Well, that is only going to be possible if it is done within the next 10 minutes.

PN228

MR BRAITHWAITE: I will only be 5 and I'm sure my colleagues will - maybe if we just do it quickly. The company had a funny understanding in relation to what is meant by agreement.

PN229

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Braithwaite.

PN230

MR BRAITHWAITE: And what is meant by consultation. Agreement in my understanding of the dictionary means there's more than one party agrees that the company has indicated they seek to maintain the annualised salary but vary it according to whatever they want to do. That is not agreement. Consultation, they say they are consulted. They gave us a document indicating: this is what we are going to do. That is not consultation. If I had with me Senior Deputy President Hancock's decision on consultation and restructuring between ETSA and the ETSA unions, he made it very clear that consultation was informing, allowing in the decision-making process, etcetera.

PN231

Commissioner Smith is another commonly used definition of consultation. They talk about there's nothing new in the document that impedes on the classification structure for example. Clause 22 deals with the classification structure. On page 5 of the restructured document it talks about:

PN232

With fewer people in our operation must do things differently to achieve...

PN233

Etcetera, etcetera:

PN234

This is possible to ride and we are focused...

PN235

Etcetera. The higher level processing technicians in the third paragraph:

PN236

...will have or will have the opportunity to develop electrical, mechanical trade skills. These technicians will operate in the following areas: wet processing, carburising...

PN237

Etcetera. Right through page 5, the responsibilities of process technicians are outlined. No consultation, nothing done in respect to the current classification structures. Clearly the company say that we should embark on an agreement down the track. You can't vary the terms of an agreement by one party. This agreement deals with the terms and conditions of employment. They must be either agreed to be varied or alternatively there needs to be a new agreement. The company has manufactured by their own admission the 4 month window by indicating that these redundancies should have happened prior.

PN238

It was purely put that 4 week to get past the period of 3 months. They said they did away with the site consultative committee meetings. Management got away with those consultative committees. It wasn't implemented by the employees. Total disregard again for the consultative processes outlined in the agreement. Selection criteria: they say that they have been consulted. They tabled them on the table. They were clearly told they won't be necessary until such time as we deal with the voluntary separations. We will deal with the issues of forced redundancies in an appropriate time frame.

PN239

They say that they told their employees verbally at two meetings that what their age rates would be. Well, I've got to say from the information we've been given people don't know what they will be paid. They've been told they've got to take on more duties, they've got to work in other areas but no, not what they will be paid. They say that the determination was made on the 15th to restructure the enterprise. Clearly the documentation as it is presented with external consultants etcetera had to be predetermined by 15 September.

PN240

They talk about the annual close-down. It wasn't an annual close-down. It was clearly a manufactured stand-down. They said that these redundancies should have occurred 6 months ago. We did have redundancies 6 months ago, some 60 people. Sir, there is an absolute failure by the company to follow the agreements in respect to the restructure and we would say that these time frames must be put to one side until such time as proper consultancy processes are put in place, if the Commission pleases.

PN241

THE SENIOR DEPUTY PRESIDENT: Mr Braithwaite, can I reiterate the earlier question that I asked? Have you given any thought to the sort of time frame you are talking about?

PN242

MR BRAITHWAITE: I haven't had a chance to talk to my colleagues but we would make ourselves available to work through the issues as a matter of urgency.

PN243

THE SENIOR DEPUTY PRESIDENT: I take it you are not suggesting another Sunday and if so, this Sunday, Mr Braithwaite?

PN244

MR BRAITHWAITE: There's absolutely no hope, Deputy President, this weekend. The Power has got to finish top and a magic win over the Crows.

PN245

THE SENIOR DEPUTY PRESIDENT: I understand your priorities, Mr Braithwaite. Now, Mr Johnston?

PN246

MR JOHNSTON: Can I just make one comment please?

PN247

THE SENIOR DEPUTY PRESIDENT: Yes.

PN248

MR JOHNSTON: Sir, Mr Braithwaite made reference to - - -

PN249

THE SENIOR DEPUTY PRESIDENT: I'm not trying to restrict your comments other than my earlier comment in relation to the time.

PN250

MR JOHNSTON: I will be very quick but I need to explain. Mr Braithwaite made reference to the higher level processing technicians will have, will have the opportunity to develop electrical trade skills. My understanding that these technicians are not trades people and I alluded earlier to legislation covering the functions that electricians perform. So I would like to know how these technicians can perform electrical functions if they don't hold under the state legislation a registered workers licence.

PN251

MR WILLIAMS: They won't do that work until they recognised as having those skills. It is simple. It is a career path, nothing else.

PN252

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Johnston. Mr Brennan?

PN253

MR BRENNAN: If the Commission pleases, very briefly, I understand the time constrains we are under but there are a couple of issues I do feel very important to make. The first is the industry has been in dire straits for months. This is not an issue that has suddenly appeared on the radar of this company and all attempts since October last year when redundancies started to occur at the site, all attempts by the unions to negotiate a new agreement to encompass a new era at GH Michells has been rejected, delayed and deterred by management.

PN254

I also find it amusing that the company is through its spokesperson been crying poverty, yet they are able to afford someone to represent the general manager who is here currently and the HR manager. So on one token it is essential that people are made redundant in a cloud of haze, yet they are able to afford someone to speak on their behalf. Yet the people initiating and following through with this action are here and I find it very disturbing because the industry is finding it tough. The unions have made attempts to try and sit down with the company to resolve long-term issues in the wool industry at Michell Australia and they haven't been recognised.

PN255

The company through their spokesperson, the company's constant statements about complying with the agreement flies in the face of the reality. Well, first of all what was just clearly indicated in regards to discussion and communication in regards to the process that they have not undertaken under several clauses of the agreement including clause 8, clause 10 and 23 which refers back both to those clauses. So we are in a position of frustration. The lack of volunteers is another reflection of frustration because people are afraid and unsure about what is happening in regards to their employment at this site.

PN256

And finally the statement made by the document presented to everybody I believe clearly indicates regardless of what the company has said today about not making changes, even though it contravenes clause 9 which is of the existing EBA document which is no extra claims, even though it contravenes that, it clearly states we must do things differently and that is in AWU document 3 page 5, the top line. So it is clearly indicating things have to change but they have not entered into any dialogue with the parties concerned. Thank you.

PN257

THE SENIOR DEPUTY PRESIDENT: Very well, thank you. The parties have referred me to a number of documents which a couple of cases I still do not have. In that regard I refer to the Textile Workers Award of 2000. They've also referred me at some length to the next step information pack which I now have in its totality only for the first time. I propose to consider the information that you have given me and will do so overnight tonight. I'm aware that the time frame stipulated in page 16 of the next step information pack has a critical point which occurs at 5 pm tomorrow and I will undertake to the parties to do everything I possibly can to have a recommendation available to the parties at some stage tomorrow morning.

PN258

MR BRENNAN: If I may, Senior Deputy President, just in clarification. You mentioned the Textile Award 2000. It is actually 1994. The agreement refers back to Textile Award 1994.

PN259

THE SENIOR DEPUTY PRESIDENT: The agreement refers in clause 3 to the Textile Industry Award 1994. In clause 7 it states the agreement shall be interpreted wholly in conjunction with the appropriate awards correctly applying to the company. So I don't see that, Mr Brennan, as a reference necessarily to the 1994 Textile Industry Award.

PN260

MR BRENNAN: I'm not a lawyer by any stretch of the imagination but under clause 3 of the agreement the application of incident of the award - - -

PN261

THE SENIOR DEPUTY PRESIDENT: That determines the question of the incidence of the award or the application of the agreement. It does not as I see it invoke the provisions specifically of the Textile Industry Award 1994 apart from clause 7 for the purpose of determining to whom the agreement applies.

PN262

MR BRENNAN: Clause 8 if I may, sir, manages to achieve gains in productivity, efficiency and flexibility which is schedule C.

PN263

THE SENIOR DEPUTY PRESIDENT: Yes, I shall regard to that particular section. I shall regard to that particular section.

PN264

MR BRENNAN: Thank you, sir.

PN265

THE SENIOR DEPUTY PRESIDENT: I propose then to adjourn this proceeding. The recommendation or statement that I issue will be made available to the parties by way of facsimile or email advice in accordance with however you might request that from my associate. I will adjourn the matter.

PN266

MR BRAITHWAITE: If it is any assistance, sir, we could adjourn the matter over on at 10.45 before you if that will give you more time. With Bundy Australia MW.

PN267

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Braithwaite, you are the milk of human kindness.

PN268

MR BRAITHWAITE: Thank you, sir.

PN269

THE SENIOR DEPUTY PRESIDENT: But I decline to do so, thank you. I will adjourn the matter accordingly.

ADJOURNED INDEFINITELY [1.49pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AWU1 MEMORANDUM DATED 23/08/2003 PN58
EXHIBIT #AWU2 GH MICHELL AND SONS (AUSTRALIA) PROPRIETARY LIMITED SALISBURY SITE ENTERPRISE BARGAINING AGREEMENT 1996 OF UNDETERMINED STATUS PN79
EXHIBIT #AWU3 MICHELL AUSTRALIA RESTRUCTURE AUGUST 2003 THE NEXT STEP INFORMATION PACK PN97