|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N 4446
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER HARRISON
C2003/1314
AUTOMOTIVE, FOOD, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION
and OTHERS
and
A&J FINE FOODS PTY LTD and OTHERS
Notification pursuant to section 99 of the Act
of a dispute re wages and working conditions -
log of claims
MELBOURNE
10.35 AM, FRIDAY, 29 AUGUST 2003
Continued from 27.5.03
PN135
MR T. HALE: I am continuing to appear in this matter.
PN136
MS R. FRENZEL: I seek leave to intervene on behalf of the LHMU and the AMWU in this matter.
PN137
MR R. MARASCO: I appear for the Australian Industry Group on behalf of our member company, Southern Canning.
PN138
MR R. IRONMONGER: I appear on behalf of VECCI and the companies previously represented by Mr Eberhard.
PN139
THE COMMISSIONER: Thank you. Mr Hale?
PN140
MR HALE: Commissioner, in relation to seeking leave to intervene, we would oppose the intervention, and we would oppose the intervention on the grounds that it is not in the public interest for the other unions to be granted leave to intervene in this matter. The union is not seeking any orders or awards against the other unions. So if I could tender a decision of the High Court which goes to this point, and that is in 60 ALJR 588.
PN141
This deals with an appeal against a decision of Commissioner Grimshaw by the Australian Telephone and Phonogram Officers Association, and what it was, was that there was a demarcation dispute between a number of unions, and the Union of Postal Clerks and Telegraphists and Others were seeking to vary their award to provide additional classifications. At page 591 of that decision the High Court had this to say:
PN142
The Commission's discretionary power under section 36(2) of the Act, to allow...
PN143
And we would say that that is now 43 of the Act:
PN144
...to allow an organisation to intervene in any matter provided that the Commission is of the opinion that it is desirable that the organisation be heard, was discussed by the Court in Crown v Ludeke Ex parte Customs Officers Association of Australia ...(reads)... see at 519-520, 525, 529, 530.
PN145
Now, this is the part, and point 4 is the part that goes directly to the current circumstances, and it says:
PN146
When two unions each claim coverage in respect of particular job classifications, and one of them seeks an award for its present or future members relating to the terms and conditions of employment of both classifications, the other union has no direct interest in the proceedings of that award, notwithstanding that the second union seeks to argue that the job classifications fall within its eligibility clause and outside of the first union.
PN147
So what we would say, that that is exactly these circumstances in this case, that the employers - and we haven't heard the arguments from the other unions as yet, but the employers are arguing that other awards may be more appropriate. And what we are saying in respect of that, taking into account that High Court decision, the Commission should exercise its jurisdiction to not allow the intervention. Thank you.
PN148
THE COMMISSIONER: Thank you. Ms Frenzel?
PN149
MS FRENZEL: Thank you, Commissioner. Commissioner, the High Court decision doesn't actually assist my friend very much, to the extent that that decision, it appears to me, dealt with a claim where there was no existing award coverage. Now, we say with respect to A and J Fine Foods, and that is the company that the LHMU has an interest in, that they are bound to the Pastrycooks - Victoria - Award 1998, of which the LHMU is the sole union party to that award by virtue of their membership of the Victorian Employers Chamber of Commerce and Industry.
PN150
With respect to the National Union of Workers, there is in existence an NUW award, for want of a better expression, known as the Fish Industry - Victoria - Award 1998. And its scope clause at clause 5, coverage of the award, covers things such as canning, drying, smoking or freezing fish, crustaceans or molluscs, including the preparation of fish, crustaceans or molluscs for such processes. It goes on to say:
PN151
Preparing fish, crustaceans or molluscs for sale, uncooked, marketing and fish market fish, crustaceans or molluscs, and selling by wholesale fish, crustaceans or molluscs.
PN152
Now, we say that there is an issue between the two unions and the AMWU Food Preservers Division, because A and J Fine Foods make pizzas. There is a recent decision of Commissioner Whelan, which I note that the Metal Workers have not drawn the Commission's attention to, and I am not surprised they haven't done that because, in actual fact, in that case there were a variety of employers who the Metal Workers Union were seeking to rope into the Food Preservers Award.
PN153
There was an extensive programming of inspections and submissions and witness evidence by the parties and in that case there was one particular employer who did make pizza bases and pizzas, and the Commission in that case refused to rope in that particular employer to the Food Preservers Award. Now, I do apologise for not having that reference with me. I only became aware of this when I actually came down here this morning to do another matter.
PN154
But having said that, we say that we do have an active interest, that the High Court decision that my friend refers to actually doesn't help him very much because that stops at one point, and we say, with respect to both the Pastrycooks Award and the Fish Industry Award, we are past that point, miles past that point, and we have an active interest in these proceedings. And we say that because of that active interest, because of the award respondency and because of the history which the Commission has not been made aware of to date, that the LHMU and the NUW should be granted leave to intervene.
PN155
My limited discussions with the NUW are that they would seek to have inspections of a representative number of the, for want of a better expression, the fish employers, to ascertain whether or not the scope of the Fish Industry Victoria Award 1998 is actually relevant to those employers, and with respect to A and J Fine Foods, I would say on behalf of the LHMU that we ought to have an inspection of that company, particularly given Commissioner Whelan's decision of last year.
PN156
I might say that there is also - and I have put this on the record before and I am not troubled doing it again - that there is now a developing body of demarcation disputes between the Food Preservers Division of the Metal Workers Union and ourselves. I am not aware of it so much with the NUW but I am aware of it with us. And this is probably the fifth attempt to rope in different employers which we say we have constitutional coverage for, nine times out of 10, award coverage for, and in one case we had a certified agreement with them.
PN157
So, for all those reasons, we say we have got a very active interest, and I would commend the application to intervene on behalf of the LHMU and the NUW accordingly.
PN158
THE COMMISSIONER: Thank you.
PN159
MR IRONMONGER: Commissioner, we would support the intervention. In relation to A and J Foods, they have a certified agreement in this Commission, of which the Pastrycooks Award is the underpinning award. His Honour, Deputy President Hamilton, designated that award to be the appropriate award for the enterprise agreement. The company is also a member of VECCI, which gets respondence to that award through its membership of that association.
PN160
THE COMMISSIONER: I will allow intervention of Ms Frenzel on behalf of the LHMU and NUW. Mr Hale?
PN161
MR HALE: Commissioner, we would oppose the inspections. On the last occasion that we were before the Commission, the Commission set out a program in relation to written submissions and any witness evidence that the parties may rely on. And the failure of VECCI to meet that timetable should not be replaced by the situation where it merely becomes an exercise in inspections.
PN162
I would note that the AIG has followed the Commission's proposal in relation to that, and they have brought Mr Milani here to give witness evidence in relation to the matter, and the fact that VECCI has decided that they didn't want to follow that path, should not mean that the other parties are inconvenienced or, in fact, put to expense in going to inspections across the state.
PN163
In relation to our submissions in the matter, we have gone into detail of the coverage in those submissions, and we would stand by those submissions in relation to the matter. There is only one change in there in relation to the draft award. The draft award says consent draft award. Obviously it is not a consent matter when it gets to this stage. In relation to the Fish Award, Mr Ironmonger's submissions and Ms Frenzel's submissions have both been very careful to say - sorry, the AIGs submissions - have been very careful to say that the Fish Award is the more appropriate award.
PN164
They are not saying that the employers are respondents to the Fish Award. In fact, when I composed the list, H3, I went through and checked that against the named respondents to the Fish Award and removed any named respondents in the Fish Award. So that Ms Frenzel is making a bit of a practice of coming to seek leave to intervene in relation to our roping in logs, and I think that it is normally at the invitation of Mr Ironmonger, and then comes and runs her argument that there is ongoing body of demarcation.
PN165
We are seeking to get award coverage for people who come within our eligibility rule, and that award coverage is for people who are not currently members of the union, or are not currently members of any other union. And it is work which comes within our award, as I have demonstrated in the written submissions, and we believe that the Commission should make the awards in the matter of the draft award. Thank you.
PN166
THE COMMISSIONER: Thanks.
PN167
MR IRONMONGER: Can I just say, Commissioner, that I did not invite Ms Frenzel here today. This is the first time I have appeared in a - - -
PN168
MS FRENZEL: No. I will deal with that, if the Commission pleases. No one invited me here today, Commissioner. We have been keeping an eye out on these things because there were proceedings very recently before the Commission with respect to a company called Terra Harvest, which make rice crackers. We have an agreement with that company. We have membership with that company. The Food Preservers Division of the Metal Workers were trying to rope that company into that award. The Betta Foods decision, the decision of Commissioner Whelan of 8 March 2002 - and it is print PR915150 - that dealt with a number of companies, including Donna Rosa Pty Limited, who made garlic bread. The Metal Workers are trying to rope them in.
PN169
It also dealt with Emerald Crane trading as Quattro Bakehouse and Fine Foods. That was the company who made focaccias and pizzas and pizza bases. There was Betta Foods themselves. Betta Foods make ice cream cones and wafers. They also make, I might add, confectionary, and there was a finding of a dispute made with that company only with respect to those employees who are predominantly employed making the confectionary. But the cone manufacturers have been clearly covered by the LHMU, arising out of its amalgamation with the Pastrycooks Union in 1993.
PN170
As well as that, there was Australian Convenience Foods, and this company was involved in the distribution of fresh food products such as sandwiches that one finds at Seven Eleven Stores, and those sorts of things, and the Metal Workers were trying to say that was food preserving as well. As I say, there were a number of inspections undertaken. I didn't say, for the record, I didn't say that the Fish Industry Award would cover the work that the Metal Workers is trying to rope in, I didn't say that.
PN171
What I said was, that an investigation of the scope clause versus the work should be done to make sure that the award coverage is properly set. But I didn't make a submission to say that the Fish Industry Award was the appropriate award. So having said that and having clarified the situation, we would commend our request to the Commission for inspections. We can make ourselves available at short notice, and I can certainly confer with the NUW today about their availability as well.
PN172
On that basis we would once again commend the process of inspections to the Commission, for the only reason that sometimes it is the best way of demonstrating exactly what happens in a workplace. If the Commission pleases. And I also have to be excused for another matter.
PN173
THE COMMISSIONER: Mr Hale, I understand your submission that the matter ought to proceed, however, having been advised by Ms Frenzel this morning of their interest and of some factual positions, well, I assume they are factual positions, and which I was unaware of prior to this morning, I really can't ignore what has been said.
PN174
MR HALE: Well, in relation to factual positions, and I haven't fully read through the witness statement of Mr Milani, but I don't think that we have got a lot of difference with Mr Milani or, in fact, with any of the other companies that have been, or that we were sent the information on in relation to the work that they do, in that we agree that - well, I suppose we are not in a position to disagree, but 70 per cent of the work performed by Mr Milani's company is, in fact, the processing of molluscs and, well, the processing of molluscs.
PN175
And similarly in relation to the company that makes the Yarra Valley - and I am just looking for the submissions of VECCI in relation to the matter - but the company that makes the Yarra Valley salmon caviar, we are not disagreeing that they do make the product that they have put forward. What we are saying is that constitutionally we cover them and the award covers them.
PN176
So apart from it being a pleasant exercise to go down to the Yarra Valley, we don't see a lot of need for the Commission to go, and it may well be very interesting to all of us to see how they do it. But what we are saying is that we are not disagreeing with the factual side. What we are saying is that that work, as described by the employers, is work that comes within the scope of our award and within the eligibility clause of the union's rules, and similarly in relation to our officiaries.
PN177
We are not disagreeing. There is process one, which may not come within our area of coverage, or parts of it may not. Certainly the pack, freeze and distribute would. But process two, which is their continual production, comes fairly and squarely within the application clause of the award. So we are not arguing about what work they do or how it is done. What we are arguing is that that comes within the coverage of our award.
PN178
Now, they are really the only companies that the other parties have made any factual submissions to. Now, why should VECCI be allowed to replace its responsibility to put before the Commission that information, replace that by inspections? And that is essentially what they are asking you to do, is that rather than you - or they provide you with the information and we then say whether we accept what that information is or not, and if there is a dispute in relation to the factual side, then yes, inspections may be a way of resolving that dispute. But on the information before us, we are not disputing the factual side. Thank you.
PN179
THE COMMISSIONER: Thank you. Mr Ironmonger?
PN180
MR IRONMONGER: Well, we say we have a right to put our case to you, Commissioner, and the way we address the case, I put the union on notice when directions were filed that we did want to make inspections. The other two unions wanted to have inspections and put their argument. So I think natural justice would prevail if we do present our case the way we want to present our case before the Commission. You know, a picture is worth a thousand words, we say.
PN181
Commissioner Whelan undertook inspections in that case which Ms Frenzel relied upon. But I don't think today will be lost, Commissioner, because we can hear evidence today from Mr Marasco's witness, and surely his business is quite similar to the other businesses which are in the fish industry.
PN182
THE COMMISSIONER: Mr Marasco?
PN183
MR MARASCO: If the Commission pleases, Mr Milani has driven four hours from Portland this morning for the purpose of giving evidence. We don't oppose inspections taking place. We think that would be a good idea. In terms of how today would proceed, it would be my respectful submission that Mr Milani be called to give his evidence. So I think he would have a copy of our submissions and witness statement. There is only one client I represent in this matter, Southern Canning. The Miscellaneous Workers Union would have no interest in that company.
PN184
But I would suggest that maybe he can give his evidence and Mr Hale can cross-examine him and then the Commission make a determination whether it is necessary to have inspections at Southern Canning. We certainly wouldn't oppose inspections at the other sites. If the Commission pleases.
PN185
THE COMMISSIONER: Well, I think you can call your witness now. We will proceed with that.
PN186
PN187
MR MARASCO: Mr Milani, just for the record if you could state your full name and address?---My name is Joseph Louis Milani. My residence address is 7 Whales Court, Portland.
PN188
And can you tell the Commission what company you work for?---I am the Managing Director of a company called Southern Ocean Managing Services. We also run a manufacturing organisation called Southern Canning. The company is split between two disciplines. We do consulting to the fish industry specifically, and we do some manufacturing in the fish industry specifically.
PN189
And can you tell the Commission, have you prepared a witness statement for the purpose of this proceeding?---Yes, I have.
PN190
And you have a copy of that statement in front of you?---Yes, I have.
PN191
And is that statement true and correct in every particular?---Yes, it is.
PN192
PN193
MR MARASCO: Can you tell the Commission, Mr Milani, how does your operations differ from a traditional food business?---The fish industry is basically a supply sided equation, meaning that it is a limited input or output industry that is managed by state and federal quotas, meaning that there is a finite amount of material that comes out of the water, that is probably the main difference, and also it is weather dependant, which means different - we are different to Mr Hale's statement before, that the industry is not a continuous industry. Our industry is very ad hoc. It is weather dependant and it is
**** JOSEPH LOUIS MILANI XN MR MARASCO
dependant on the availability of quota. Because it is a limited output industry it is very competitive, it is a very fragmented industry, so there is many participants vying for the raw materials. It is also market dependant, and because of that we have a very casual basis type industry where you can operate for intense periods of time, and we can have also long periods of time where we do nothing at all. And that is why, in my particular instances, it could be difficult having an inspection, because we may be working 50 days a year or we may be working 200 days a year, really depending on the raw material sources. Because of our industry we source raw materials not just from Australia, not just from Victoria, we draw in raw materials from all over the world to try to fill the gaps at times for supply and demand. So I beg to differ on the statement of continuous manufacturing. The fish industry is not continuous manufacturing, and that is where I think our industry is significantly different, and anything can be attuned to anything in the food industry where they add A, B, C, D, and run 24 hours a day, seven days a week.
PN194
Can you tell the Commission, Mr Milani, how many employees you have?---We have 10 employees on a casual basis.
PN195
So they are all casuals?---Correct, because our industry is non defined, and we work to the availability of the raw material, so hence we cannot have permanent employment.
PN196
And what governs the terms and conditions of employment of those 10 employees?---Well, in my experience since 1986 specifically in the fish industry, we always use the Fish Award as the basis, because it was so specific to our requirements, but we found in the early days the Fish Award was lacking, because to reward people because they were basically on call to our requirements we used the early AIM, which is now the AIG Group. Under the original state authorities we did our own enterprise agreement, which we discussed with our workers, and, in fact, I think we still have the same workers. The only people that leave our organisation is either by pregnancy or by retirement. We thrashed out our own agreements, but at the end of the day it was based on the Fish Award, and I still always to this day think the Fish Award is probably most appropriate to our specific organisation, because it actually understands the conditions of our industry.
**** JOSEPH LOUIS MILANI XN MR MARASCO
PN197
I have got no further questions, if the Commission pleases.
PN198
THE COMMISSIONER: Thank you. Mr Hale?
PN199
PN200
MR HALE: Now, could you explain to me what you believe filleting is?---Filleting, I would assume, would be removal of flesh from the carcass of the fish.
PN201
So taking meat off the bone?---If there is bone present. Sometimes there is cartilage.
PN202
Okay. So in a mollusc, whereabouts is the cartilage?---The mollusc has a shell, so it is removal from the shell.
PN203
Okay. So you would say - - -?---And the crustacean has an exoskeleton, and it would be removed from the exoskeleton. That is the technical definition.
PN204
Right, okay. So you would see that as filleting rather than shelling, would you?---We are arguing over a definition. It is the removal from - whether it is a shell, whether it is a skeleton or whether it is an exoskeleton thing. Call it what you may, but I don't - to me it is - I have nothing else to say. I mean, it is the removal from a fixed portion.
PN205
Do the workers down there refer to it as filleting the trochus?---Well, trochus, you don't - trochus, you remove it from a shell, and it is not shucking like a scallop. Shucking is specifically normally referred to scallops.
**** JOSEPH LOUIS MILANI XXN MR HALE
PN206
Right. But the workers down there don't refer to it as fillet, do they?---We actually call it picking, because we actually pick the meat from the shell.
PN207
Okay. So you scoop it out?---Well, actually it is not. It is parboiled and it is removed, so it is not scooped.
PN208
Okay. Now, how much gutting goes on with a trochus?---The trochus, it depends, it depends how the fishermen supply it. If some fishermen supply it with some gut, and some fisherman remove the gut, so it is really case dependant on the raw material. And I can't make a statement, because from year to year, depending on the source of the raw material, people do it differently. If there is an indigenous supply from Thursday Island versus a supply from the Queensland suppliers, which are more sophisticated, it really depends. But if you want me to give you a percentage, I can't, it would be an unfair statement.
PN209
Well, worst case scenario?---50 per cent.
PN210
How much gutting is involved? So you would get - if you get the trochus shell full?---Yes. But at times we don't.
PN211
No. But if you do, how much gutting is involved?---I can tell you, I can quote facts, and you can perhaps make your own determination. The total waste that comes out of it would be maybe six or seven per cent.
PN212
That would include the shell?---No.
PN213
Okay. So how much time would be spent by your work group gutting?---I haven't - I have never entertained that. I don't know.
**** JOSEPH LOUIS MILANI XXN MR HALE
PN214
Okay. Now, you got - - -?---It has never been a measurement item in our organisation, so whatever I said to you would be a wild guess.
PN215
Okay. Of those 10 casual employees how many of them are involved in the consulting part of your operation?---Three.
PN216
So there is three involved full-time consulting?---Well, no, because we do consulting as a fill in when there is no other manufacturing to help overheads. Myself, our other scientists and our production manager would then, when there is no other operational going in the factory, we would do consulting to the fish industry, which is basically based on technology, handling technology and things like that.
PN217
Okay. So you count yourself in amongst those 10?---Of course, yes. We are a small organisation, so I am hands on.
PN218
Right, okay. So you have got yourself, the scientists I think you said?---Yes, and our production manager.
PN219
And the production manager. So the other seven people, are they production workers?---They are, yes, casual staff, but they would not be on the premises, they would stay home. They are only called in when there is work.
PN220
Right. But they are working on the production?---Well, yes, in what we do, yes.
PN221
Okay. So that when you say that 70 per cent of the work performed is the processing, so then there would be 30 per cent consulting, would there?---Yes. That is a broad brush statement, because it can vary on years, can't it? I mean, you know, when people, when you start quoting figures like that, I can only give you to the best of my ability when people want tangible information. That is to the best of my ability of how I try to split it, yes.
**** JOSEPH LOUIS MILANI XXN MR HALE
PN222
Well, all I did was took 70 away from 100?---Yes, okay. But, I mean, you ask me for specifics. I can only - you know, when you start talking statistics, they are just that. Statistics are at best a guess because our industry is so variable from year to year, to season to season, it can change. So what I quote you today could be different tomorrow, it can be different the year after. That is just the way our industry is.
PN223
Okay. Now, in relation to the abalone and trochus flesh, what do you call that?---What do we call that? We call it abalone flesh.
PN224
You do call it abalone flesh, not abalone meat?---Well, are you asking me, do we have a pet name for it, or do we have an industry name for it? What are you asking me, and then I may be able to answer it?
PN225
Well, what I am asking you is, what is the normal - - -?---We call it the foot.
PN226
The foot?---Yes. That is the factory name, the foot.
PN227
Right, okay?---Because that is, on the mollusc, on the trochus, that is what it actually attaches itself to the rocks, and that is the same as a trochus on the sea bed, so it is the foot. So when we actually handle it we call it the foot. So if that helps whatever you are asking me, that is what we call it.
PN228
Okay. So you call it the foot. On your cans do you have a description of what is inside the cans?---Yes. We call it heads. The Chinese call it one head or two head, meaning one foot or two foot.
PN229
Right, okay. So written on your can?---Yes. We have one or two, or one and a half, or three.
**** JOSEPH LOUIS MILANI XXN MR HALE
PN230
But do you say one and a half abalone head?---Well, with respect, when there is an abalone in a can it is an abalone, so it is a label that says an abalone, so the customer - because we supply the institutional industry, which is restaurants and hotels - chefs need to know portion control, so they need to know the number of head, which is the number of pieces of feet, or the foot, which they then can process. So they need to know the description on the can, and we have on the can one piece or one and a half pieces of the foot. In the Chinese terminology they call it head. So you can call it foot, you can call it head, you can call it pieces, and at the end of the day it is abalone. That is what is in the can in that instance. If it is trochus, it can be anywhere from three pieces to 20 pieces. If it is aquaculture abalone it can be anywhere from three pieces to 20 pieces.
PN231
Do you call it abalone meat?---I have seen it referred to abalone meat. You asked me specifically what we call it. I have just given you our organisational - - -
PN232
Which is why I was asking on the cans. Is there anywhere on your cans that you have got the words abalone meat?---No, actually we haven't, no.
PN233
Okay. Anywhere in your advertising?---No. Actually we don't have any advertising, we are pretty small. We do custom products for major hotels groups and that, and in a lot of instances there is no label at all, it is just the product, or it is in a flexible packaging. But I have got to say, I have - yes, I don't understand the question.
PN234
What part don't you understand?---Well, what you - you are asking me the same question about abalone meat, so I am not - - -
PN235
Okay. Would it be reasonable to say that abalone meat would be something that would be referred to by the ordinary and average person on the street?---No. Actually, no, it isn't. Sometimes the old Chinese saying, it is what it is, it is abalone. Meat is meat, and abalone is abalone, it is a shellfish. So I don't know what part of that you can't understand in your question.
**** JOSEPH LOUIS MILANI XXN MR HALE
PN236
So you are now saying you have never heard of it being referred to as abalone meat?---Look, I have never given it much thought. The answer is perhaps I have. I don't - I haven't really given that any thought, because we don't classify it as that.
PN237
But didn't you just say before that you had heard it being referred to as abalone meat?---I don't know.
PN238
When you refer to, say, less than 10 per cent of the seafood processed is wet fish, the major raw material processed is trochus, which is a mollusc, this is followed by abalone, which is also a mollusc. So the wet fish, is that preserved?---Well, wet fish is basically anything that swims, versus a mollusc or crustacean, and if we do handle wet fish, which is at times shark or some other trawl fish, it would be - the meat or the fillet would be removed from the carcass, and that is back to that question of filleting, and we do that on occasion as and when it is available and as and when we get orders for it. The next step can be either sold fresh in that state, which obviously it has a shelf life, or it could be frozen, or it could be, it could even be par blanched, which is par cooking.
PN239
And the blanching, would that be in relation to the wet fish, or is that more likely to be squid?---No, no. You do that in wet fish, because you try to get rid of some of the bacteria on the surface, just to extend the shelf life a little bit. But that is obviously no chemicals, that is in its raw state, and it would be no different than a fisherman on a boat putting it in a nice slurry to extend its shelf life. Just another means of reducing the bacterial load on the raw material.
PN240
So it would be trying to preserve it for a bit longer?---Well, what do you - well, you can tell me, what is preservation? Is it the moment you put a fish from the moment you catch it out of the water into ice, that prolongs it 36 hours, or is it when you put heat to it, that preserves it for maybe two years, or you put chemicals to it, that preserves it six weeks, or you modify the atmosphere, that preserves it 12 weeks? I don't know that definition. I am a biochemist by trade, so I guess, you know, it is an interpretation.
**** JOSEPH LOUIS MILANI XXN MR HALE
PN241
So you would see all those things as preserving?---Well, I mean, the moment a fish is removed out of the water and you give it one hour more than it would naturally rot, I guess in the true definition. I haven't got a dictionary in front of me. If that is called preservation, I guess it is preservation, I don't know. I will leave that open to the Commission and yourself to determine that.
PN242
In fact, what you say in your witness statement is:
PN243
By its very nature, the seafood that is processed as live or fresh has a very limited shelf life of about 36 hours.
PN244
?---Well, we are talking from the raw state. It is not different than the human body. When something is completely in its natural state and its bodily functions stop, well, then all the other functions start, isn't it, all the bacteria? So it is a timeline. That is just basically an open statement, because so many things can vary that. Ambient temperature, how the fish has been handled. I mean, you know, people are asking me facts and statistics. I can only sort of give you open statements out of textbooks because I don't know how specific that is, but yes, that is the general understanding in my experience.
PN245
So that 36 hours would be fish on ice?---It would have to be removed from the rest of the gut material and stuff like that, yes. Because, I mean, if it was still attached, the enzymes, they could act within minutes of the fish removing from the water, the moment a fish physically dies.
PN246
Right, okay. Now, how much of the work you do would involve fresh fish which has that very limited shelf life?---It is a non demand thing. Look, it can vary. If we had an order for shark that there was some money in it, we could take all of June, July, so it could be 20 per cent of our manufacturing. If there is no money in it, and there is more money in trochus or abalone, we would concentrate on that. It is a very marginal industry, we tend to be very reactive to the markets, so I can't give you specifics. Yes, I can give you historical figures, but I don't know, if you are asking me to predict what we would do
**** JOSEPH LOUIS MILANI XXN MR HALE
next month. At the moment we are doing contract packing of aquaculture product. We have never done it before, it has taken June, July, August, so there you go. We have never done it before. So this whole year's equation is completely different than the last 15.
PN247
So what is aquaculture product?---That is abalone that is actually grown in farms, which is a new industry that is just emerging.
PN248
Right, okay. But it is processing abalone?---Of course, yes.
PN249
Now, have you ever done wet fish for three months of the year at a time?---Yes, we have.
PN250
You have?---Yes, we have. But, I mean, yes, we have. I don't know how long ago, but we certainly have.
PN251
Right, okay. So then in your witness statement you say less than 10 per cent of the seafood processed is wet fish?---Yes. But I am looking over the whole span. I mean, if you said it was a 30 - you have got to look at it over a total timeframe. If you looked at our historical figures at this point, that would be a fair statement. If you said to me this particular year or last year, it could be different for that. I mean, that is what the statistics, the problem with statistics, isn't it? I mean, you have got to look at a timeframe. It has got to be measurable. It has got to be objective.
PN252
I am not the one asking about statistics. What I am trying to - - -?---Well, you are, because you are trying to use it as a blanket statement for, I mean - - -
PN253
What I am looking at is a witness statement that you have sworn on oath is correct?---Yes.
PN254
I am looking at percentages that you gave in that witness statement?---Okay. Well, what timeframe are we talking about? From the time, I think I said I have been in the industry since 1987, it would be true and correct for that period.
**** JOSEPH LOUIS MILANI XXN MR HALE
PN255
Okay. Now, is that period you are talking about, less than 10 per cent of the seafood processed is wet fish?---Over that period, yes.
PN256
Okay. So the timeframe that we are looking at in relation to your witness statement is over that 10 year period?---Well, it is '87 to now, whatever that period is.
PN257
Okay. So that in point 11, over that same time period what is the percentage that would be wet fish that has a shelf life of about 36 hours?---I have no idea. Because, I mean - I don't understand the question.
PN258
Okay. Over the same time period what percentage would be that fresh fish that has got a shelf life of about 36 hours that you refer to in point 11 of your statement, what percentage of that - - -?---In that particular instance it would be probably 100 per cent, because when we are talking three to four days, we are talking basically fresh fillets that would be then passed on to an ongoing processor.
PN259
No. Of your work in production, right?---Yes.
PN260
So not the consulting?---Yes.
PN261
But of the 70 per cent of the work that is your production?---Yes.
PN262
What percentage over that time period would be your fresh fish or your wet fish that is only, or that is basically unpreserved?---Are we talking of the total time of the history of the company, or are we talking about today, or are we talking about last week, or are we talking about this year?
PN263
I think we are talking about the total time period. We established that a minute ago?---Okay. It would be 10 per cent of the 70 per cent, which would work, in my figures, seven per cent of the total.
**** JOSEPH LOUIS MILANI XXN MR HALE
PN264
So all of the wet fish that you do - - -?---No. All of the wet fish we have done.
PN265
Sorry?---All the wet fish we have done.
PN266
Yes, all of the wet fish you have done has gone out as unprocessed, so apart from gutting and filleting?---Well, no. Gutting and filleting is processing, isn't it?
PN267
No. Well, apart from that?---Yes, okay.
PN268
If we say that that isn't processing?---No. It is processing.
PN269
Well, for the point of the exercise - - -?---I mean, it is classified as processing, so I beg to differ.
PN270
Well, you may well. But if you set aside - - -?---Because under the Fish Act, and the way we are legislated, it is classified as processing. The moment a fish enters our factory and we touch it, it is deemed to be processed. So I can only quote you what the government legislation says.
PN271
Okay. So that is processing that we are not dealing with at the moment, okay?---Okay.
PN272
So apart from filleting and gutting the wet fish, are you saying 100 per cent of that is sent out as the seafood with a shelf life of about 36 hours?---Well, the type that we have done up till now, yes, because we have never gone to the next step. We are not a wet fish freezing works. We have the capacity to do that but we have never done it. We handled some fish at the time, some fisherman that had shark quota that wanted it passed on to other processors, whoever that was at the time, and we just done a job in between there. So what - if you are asking me did I freeze it, the answer is no.
**** JOSEPH LOUIS MILANI XXN MR HALE
PN273
I thought you told me earlier that with the wet fish and the shark, sometimes it gets frozen?---It can, yes.
PN274
By you?---Well, you are asking me now specifics over time, and I don't recall if we did any specific freezing to contract, anything like that. We may have frozen some for personal, we may have frozen some for fishermen, but we have never frozen any for sale. And bear in mind, in abalone too we do the same thing, and trochus we have done the same thing, filleting, removal from the shell, and passed it on in that chilled state. We actually - we do it even now for the aquaculture. It is removed from the shell, it is put in an ice slurry and it is sent to another manufacturer within 36 hours, as long as it takes to get there for them to further process. So it is not an unusual thing. So it sounds to me like you think it is an unusual thing. In our industry is not an unusual thing.
PN275
No. All I am trying to work out is what the usual thing is?---Okay. Well, then when you find out let me know, because we are so variable.
PN276
How much of your work would involve crustaceans?---Crustaceans, depending - it depends on the market, it depends on the availability of raw material, and it depends on the price. At the moment we are discussing with a crayfish manufacturer right now to do some further processing of crustacean. We did it eight years ago, we did it for three months of the year, we haven't done it for seven years because the live export business has been so strong, most of the product is being sold live, so there is no opportunity. This year, because of sales and some other related products, there is an excess of raw material in the frozen state by other manufacturers, by excess of the large ones they can't sell, so now we are revisiting that project. We have had three representations from three different companies, so this year it could be quite a high percentage.
PN277
Okay. So when you are dealing with crustaceans, what are you talking about, crays?---Crayfish, crabs.
PN278
Crabs?---Yes.
**** JOSEPH LOUIS MILANI XXN MR HALE
PN279
And that is it?---Moreton Bay Bugs and scampi, and tropical lobster.
PN280
Obviously some of those are imported?---Yes.
PN281
So do they come - - -?---And I don't know where sea slug fits in that. I think it is sort of in between a crustacean and a mollusc, and we do some of that as well, which is sea cucumber.
PN282
Yes, I know what it is. I was just wondering about where you were fitting it in. So in relation to the crustaceans, you haven't done any for about seven years?---Yes, we haven't. I think the last time we did it - because, in fact, the lady who called me yesterday was the granddaughter of the guy I did it for, so yes, it would be seven years.
PN283
Okay?---And she has got a fishing company in South Australia.
PN284
Okay. So is there any canning of the crustaceans?---Yes. That is what we did seven years ago. But now technology has changed, we use a new technology from Japan, it is basically somewhere in between a true canning and a - it is a lesser process, it is in a flexible pouch, it is still heat sterilised, of course, but technology has come a long way. So the word "canning" now is a pretty broad statement. We like to call it firmly processed.
PN285
And you do that in relation to the trochus, the abalone?---Yes, we do, we can do. We do that.
PN286
Right. I have no further questions, Commissioner.
PN287
THE COMMISSIONER: Thank you. Anything arising?
**** JOSEPH LOUIS MILANI XXN MR HALE
PN288
MR MARASCO: No, there is no re-examination, Commissioner.
PN289
PN290
MR IRONMONGER: Well, Commissioner, with the inspections that we propose, what I propose to do is to have a discussion with the NUW, with these fish companies, and try and get a representative, rather than having to go to all the companies, and have a discussion with Mr Hale and see what we come up with, and advise you very quickly.
PN291
THE COMMISSIONER: Yes. I was going to propose that the parties do confer and seek to reach an agreement as to a schedule or a program, and if you could then advise me I will list it for inspections and hearing, hopefully at the same time, so we can bring the matter at least closer to finality. It has been going for some time now. Is that acceptable?
PN292
MR HALE: The other thing, Commissioner, is, we have become aware that the NUW has, in fact, logged the - well, I don't know whether they have logged the same companies, but they have certainly logged people who are currently respondent to the Food Preservers Award in a recent log of claims. So we don't want to be delayed in this exercise while they are going through in another Court before another Commissioner seeking the same coverage.
PN293
MR IRONMONGER: Well, if the Commission pleases, they are my members involved with that. I will tell the Commission in that other hearing that this matter is currently before you.
PN294
THE COMMISSIONER: That might be helpful. And it might also be helpful - and I don't want to tell you how to suck eggs, but if the unions could hopefully confer with each other as well to try and reach some understanding, perhaps call on the officers of the ACTU.
PN295
MR IRONMONGER: Once more, I am away for three weeks as from 14 September, so I am not trying to delay things, but I am not putting off my first overseas trip.
PN296
THE COMMISSIONER: Well, I am overseas next week as well for two weeks, so I am not putting that off either.
PN297
MR IRONMONGER: I might see you in Rome.
PN298
THE COMMISSIONER: Well, I will await advice from Mr Hale, the outcome of your discussions. Following that I will set a date, and the parties will be advised.
PN299
MR IRONMONGER: Thank you.
PN300
THE COMMISSIONER: Thank you. These proceedings stand adjourned.
ADJOURNED INDEFINITELY [11.32am]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/other/AIRCTrans/2003/4076.html