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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
Tel:(08)8211 9077 Fax:(08)8231 6194
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER FOGGO
C2002/585
AUTOMOTIVE, FOOD, METALS,
ENGINEERING, PRINTING AND
KINDRED INDUSTRIES UNION
and
HOLDEN LIMITED
Notification pursuant to section 99 of the Act
of a dispute re payment of penalty rates for
work done during meal breaks and thereafter
until a meal break is allowed
ADELAIDE
10.07 AM, TUESDAY, 11 FEBRUARY 2003
Continued from 6.11.02
PN320
THE COMMISSIONER: Good morning.
PN321
MR DOWD: Good morning, Commissioner.
PN322
THE COMMISSIONER: There are no changes in appearances, I take it.
PN323
MR DOWD: There are and there aren't, Commissioner. I wonder if you would just indulge me for a few minutes while I tend to some housekeeping matters. The first matter is the one you raise. You might recall that you heard some argument prior to the issue of your decision of 18 June 2002 and I was in that. I think since that time a Mr David Ey may have appeared and perhaps a Ms Erin McCarthy and now I'm back to represent the company.
PN324
THE COMMISSIONER: Yes, thank you.
PN325
MR DOWD: Thank you, Commissioner. Just one or two other matters just so that I know in my own mind that I've got a proper understanding of the task before us so that I can properly represent the company's interest. I will be as brief as I can. Commissioner, in the decision you issued on 18 June 2002 - and I say this as a matter of absolute caution because what you say is very clear in paragraphs 54 to 58, as I comprehend it but I just want to make sure I've got it right. So any criticism I am making is of me not of your articulation. I just want to understand that I perfectly got your points. Do you have that decision, Commissioner?
PN326
THE COMMISSIONER: Yes, I do, thanks.
PN327
MR DOWD: At the beginning of 54 you say on the submissions thus far you have reached a view that the clause containing provisions for flexible working patterns - that is clause 29 of the agreement - relates precisely to the issue in the unresolved dispute between the parties and you then go on to say, and I'm quoting:
PN328
I am unable to accept the argument by the union that the Commission can only rely on the clause in the award -
PN329
that was clause 16 which dealt with meal breaks -
PN330
- because it is the relevant clause under which this dispute must be considered.
PN331
Then you go on to make the observation towards the end of that paragraph:
PN332
When the agreement is silent on a matter it is the scheme of the Act that the award provisions apply, but in this case the process regarding flexible working patterns ...(reads)... takes precedence over the award.
PN333
I take it that when you said that - you go on in paragraph 55 against that background clearly and you say:
PN334
The claim by the union that the change that was made to working patterns breaches the award fails to recognise the intent of clause 26.
PN335
And I take it that that is a typographical error because I think, with respect, Commissioner, it is clause 29 of the Enterprise Bargaining Agreement. The words that you quote - appropriate part or site committees are found in clause 29 and that seems to be quite consonant with what you say.
PN336
THE COMMISSIONER: Is this a test, Mr DOWD? It is a bit early in the morning, isn't it?
PN337
MR DOWD: No, no, it is not.
PN338
THE COMMISSIONER: Yes, all right, it should read clause 29.
PN339
MR DOWD: No, this is not a test of anyone other than me because I have not been in this matter for some time and I just want to make sure that I understand what we are doing today. So please indulge me and I will complete quickly.
PN340
THE COMMISSIONER: Yes, it is clause 29.
PN341
MR DOWD: In paragraph 57 you make two comments:
PN342
The union does not agree to the changes which the employees and the representative committees made in that agreement ...(reads)... appropriate industrial issue on changes to work patterns.
PN343
Then of course you revert to decide the matter that had been raised about your jurisdiction and you don't accept submissions that you didn't have jurisdiction. Now, the next two paragraphs against that background:
PN344
On the basis of that finding -
PN345
paragraph 57 reads -
PN346
- I intend to list the application for further hearing in order to provide the parties with an opportunity to put further submissions before the Commission ...(reads)... on the dispute concerning the payment for lunch breaks.
PN347
If I could just pause there. At a later period you issued some directions following a hearing on 6 November and those directions were about some agreed facts and some facts have been agreed and given to you and witness statements. Now, it is about that issue that I just wanted to talk briefly. You have been provided with a witness statement of Mr Hutchins. Of course, at the time that was prepared and given to you I hadn't seen the union statements. I might say that going to that comment, should the parties - us being one of them - require to do so, the only work that witness statement is meant to do is to give you an historical background from our perspective.
PN348
I have just said to my friend that I have no questions, will have no questions of her first two witnesses or intended witnesses because she has advised me that rather like me she does not want to ask the people any questions beyond the statement. So I have perhaps caused a little hiatus with time here this morning. I didn't realise that she didn't want to ask those people any questions and I just want to tell you, Commissioner, because my friend might have had to explain this, that I'm really the cause of it. I have no questions for Mr Owen and I have no questions for Mr Willis, very few questions for Mr Gee and very few for Mr Camillo, who was planning to come along some time later no doubt thinking I had questions.
PN349
The other comment I would make is that although my friend has filed some additional submissions, which is fine, I have not because I'm happy with the submissions that we have put. And of course, you know, I've relied on 57 and I hope rightfully, that we didn't require or desire to do so.
PN350
The final thing is that I will certainly be embracing the concept of what you say at paragraph 58, which is, that I won't be working through all of the minutes. But I'm afraid - I just need to check with you, Commissioner, because I have a couple of questions of Mr Camillo and Gee about the minutes. It seems so long ago. The exhibit H2, which is the index to chronological documents that you have, did that come in a book form bound like this to you?
PN351
THE COMMISSIONER: Yes, it did.
PN352
MR DOWD: Excellent, and could I also ask is it paginated on the top right-hand side so you have got numbers?
PN353
THE COMMISSIONER: No, it is not.
PN354
MR DOWD: Okay. Thank you very much. What was H1? I apologise. I don't have a note and I don't seem to have the transcript, probably because it wasn't ordered.
PN355
THE COMMISSIONER: That is probably why. H1 was tendered on 14 May 2002 and it was the respondent's submissions.
PN356
MR DOWD: Thank you very much for that, Commissioner. They're the only matters that I wanted to raise and I do, it seems, comprehend exactly what we are doing here today.
PN357
THE COMMISSIONER: Yes, thank you for drawing my attention to that. The decision will be reissued with the correct clause number and that is most important that it is done. Having re-read the decision myself as late as yesterday I didn't pick that up. Is there anything you have got, Ms Smith?
PN358
MS SMITH: Yes. First I would like to seek leave to amend the applicant's book of documents. It incorrectly says, "Statement of the applicant". That should be, "Statement of Brian Willis". It is just a minor matter.
PN359
THE COMMISSIONER: Yes, I had picked that up.
PN360
MS SMITH: Commissioner, as you are aware from the applicant's outline of argument the matter before you today refers to an underpayment of wages claim pursuant to clause 16 of the award. Clause 16 states:
PN361
The worker is entitled to be paid at the rate of time and one half for all work completed after having worked six hours without a break for a meal ...(reads)... until the worker receives a break for a meal.
PN362
Commissioner, this leads to the first question: what is a meal break or a break for a meal? Crib time is defined at clause 20F(i), (ii) and (iii) which appears at page 35 of the award, therefore a meal break must be different to a crib break. The award is silent as to the definition of a meal break or a break for a meal and as the award carries no definition of a meal break or break for a meal, I will refer the Commission to authorities on this issue in our closing submissions and in particular, Commissioner, I will address you on the issue of control.
PN363
Commissioner, in our submission, one of the crucial issues to be determined is what constitutes a break for a meal or a meal break. As my friend stated, the reason this matter is before the Commission and not the court is because clause 16 of the Enterprise Agreement states that the Australian Industrial Relations Commission is a forum in which any disputes between the parties are to be resolved. Further, Commissioner, you held that the Australian Industrial Relations Commission had jurisdiction to determine this matter in your decision dated 18 June 2002.
PN364
It is our submission that the respondent will argue that clause 29 of the agreement, the flexible work patterns, allows - and I quote:
PN365
Changes to work patterns to be dealt with by the appropriate plant or site committees or specific committees created for such a purpose.
PN366
It is our submission that although the flexibility clause gives the respondent the ability to change working hours this clause does not enable the respondent to ignore the entitlements of employees under the award. It is also our submission that there is no inconsistency whatsoever between the penalty provisions of the award and the flexibility clause of the enterprise agreement. These are separate and distinct provisions dealing with separate and distinct topics.
PN367
Had the respondent not wished to pay penalty payments to workers who worked more than six hours without a break for a meal they had the option of putting in an application to vary the award. No such application was made by the respondent. The second issue to be determined, in our submission, Commissioner, is does clause 29 of the agreement permit the respondent to alter the award rates of pay paid to its employees through the site committee, plant committee or any other committee without making a variation to the award?
PN368
The final issue, Commissioner, which may be argued before you is section 154 of the Employee and Industrial Relations Act, the equity and good conscience provision. In our submission, Commissioner, this section of the Act does not apply for two reasons. The first, penalty rates are not being claimed for the three months during which the workers agreed to trial their revised hours even though in our submission recent authorities state that they are entitled to claim for this period. Second, I will later refer to the authorities which state that the equity and good conscience provisions do not apply even if the applicant agreed to accept less than the award entitlements, which is not admitted in this case. As the evidence will show, there was no discussion with respect to the payment of penalty rates prior to the commencement of the three month trial.
PN369
Commissioner, the evidence will show that there was an agreement to trial the new working hours for three months. It will show that penalty payments were not discussed between the parties prior to commencing the three month trial. It will also show that no application was made to vary the award and it will show that there was no agreement to extend the trial for a period longer than three months.
PN370
Further, the evidence will show that the workers of the press shop in plant 4 did not receive a break for a meal where their time was their own to do as they wished from the commencement of the trial on around 5 September 1999 until around 21 July 2000 when new working patterns were established.
PN371
The evidence will show that the changes commenced on 21 July 2000 and these changes resolved all outstanding future issues. Further, the evidence will show that the Australian Manufacturing Workers Union has been demanding that the respondent pay workers their entitlements under the award from at least before the expiry of the three month trial period. This request for penalty payments was made by John Gee and they appear in the minutes which you have in the chronological book of documents or exhibit H2, Commissioner.
PN372
Commissioner, we are seeking an order for the respondent to back pay press shop workers in plant 4 their entitlements pursuant to clause 16B of the award with interest. Commissioner, I seek leave to call our first witness, Mr Peter Owen.
PN373
MR DOWD: Commissioner, just another housekeeping matter. Do you want Mr Ian Hutchins out while - I am not cross-examining Mr Owen and I am not cross-examining Mr Willis but Mr Gee I have a couple of questions of. We may as well deal with it now.
PN374
THE COMMISSIONER: What is your view, Ms Smith?
PN375
MS SMITH: I have no objection to Mr Hutchins remaining if there is no cross-examination. However, when the cross-examination begins I will request that he leaves.
PN376
THE COMMISSIONER: Yes, thank you.
PN377
MR DOWD: Thank you.
PN378
PN379
MS SMITH: Could the witness please be handed a copy of his witness statement? It appears at pages 7 to 8 in the applicant's book of documents.
PN380
Mr Owen, is that - - -?---Can I just interrupt for a second. I need my glasses.
PN381
THE COMMISSIONER: Before you proceed, Ms Smith, in relation to this, the union has provided the documents together in one book.
PN382
MS SMITH: Yes.
PN383
THE COMMISSIONER: I think it would be preferable to mark the whole book and then subsections.
PN384
MS SMITH: Yes, we could do that now.
PN385
PN386
MS SMITH: Thank you, Commissioner.
PN387
Mr Owen, is that your statement prepared for the purpose of these proceedings?---That's correct.
**** PETER ROBERT OWEN XN MS SMITH
PN388
Is that statement true and correct to the best of your knowledge, information and belief?---Yes.
PN389
I have no further questions of the witness, Commissioner. I don't need to ask that each witness statement be tendered individually? That would be just done automatically. Is that right?
PN390
THE COMMISSIONER: No, they will have to swear to their particular statement within S2.
PN391
MS SMITH: Yes, but I won't need to ask that each statement be tendered because the whole book as been tendered as an exhibit?
PN392
THE COMMISSIONER: No.
PN393
MS SMITH: No.
PN394
THE COMMISSIONER: Sorry, yes, because S2 doesn't only contain the witness statements. It also contains the outline of your argument.
PN395
MS SMITH: Yes, so the S2 will be tendered as a whole, as an exhibit, so I don't need to request each - - -
PN396
THE COMMISSIONER: You do need to ask whether it is a sworn statement or whether it is correct.
PN397
MS SMITH: Yes. No, I will do that.
**** PETER ROBERT OWEN XN MS SMITH
PN398
THE COMMISSIONER: Yes.
PN399
MS SMITH: Yes. Thank you, Commissioner. I have no further questions of Mr Owen.
PN400
MR DOWD: Yes, as I've indicated, I have no further questions of this witness.
PN401
THE COMMISSIONER: Yes.
PN402
MS SMITH: I take it that my friend has - - -
PN403
THE COMMISSIONER: Mr Owen, where are you going?---Sorry.
PN404
MS SMITH: I take it that my friend accepts Mr Owen's statement as there's no cross-examination on that?
PN405
THE COMMISSIONER: Well, the Commission will draw its conclusions on what you say.
PN406
MS SMITH: Thank you, Commissioner. I have no further questions for the witness and request that he be released, Commissioner.
PN407
THE COMMISSIONER: Mr Owen, you are no longer the organiser attached, and haven't been since - - -?---I'm unemployed at the moment, Commissioner.
PN408
When did you leave?---I finished on 31 December, 2000.
**** PETER ROBERT OWEN XN MS SMITH
PN409
2000, all right, and the statement, as you say, is your recollection of the events?---Yes, well, from what I can remember. It's been such a long time ago and with the stroke, I seem to have lost a bit of my memory back in those times as well, you know? All my paper work that I had after I lost my ..... , I was in a foul mood so everything got ditched which I knew I shouldn't have done but, you know, I didn't feel like doing anything for the union at that stage.
PN410
PN411
PN412
MS SMITH: Could the witness please be handed a copy of his witness statement. It appears at pages 4 to 6 in the applicant's book of documents. Mr Willace, is that your statement prepared for the purpose of these proceedings?---Yes, it is.
PN413
Is that statement true and correct to the best of your knowledge, information and belief?---Yes, it is.
PN414
I have no further questions of the witness, Commissioner. Could Mr Willace's witness statement be tendered and marked as exhibit S2(3). Is that correct?
PN415
THE COMMISSIONER: No, I've got him as S2(1).
PN416
MS SMITH: Right. S2(1)?
PN417
THE COMMISSIONER: Yes.
PN418
PN419
THE COMMISSIONER: Yes, Mr Dowd?
PN420
MR DOWD: No questions of this witness, thank you, Commissioner.
PN421
PN422
MS SMITH: Commissioner, I seek to call our next witness, Mr Jonathon Gee and I would just ask my friend whether he has any objections as to whether Mr Camillo remains in the Court or whether he should leave?
PN423
PN424
MS SMITH: Could the witness please be handed a copy of his witness statement? Mr Gee, is that your statement prepared for the purpose of these proceedings?---Yes.
PN425
Is that statement true and correct to the best of your knowledge, information and belief?---It is.
PN426
I have no further questions of the witness, Commissioner. Will his statement be tendered as S2(3)?
PN427
THE COMMISSIONER: Yes.
PN428
PN429
THE COMMISSIONER: Mr Dowd?
PN430
PN431
MR DOWD: Mr Gee, I've just got a couple of questions. If I just take you to paragraph 10 of your statement - do you still have your statement in front of you? Very good, thank you. If you just have a look at paragraph 10, and the paragraphs just before it. This is talking about the time, is it not, where the concept of this change is being introduced in August of 1999?---It is talking about my awareness of the concept.
**** JONATHON PETER GEE XXN MR DOWD
PN432
Yes, okay, and you say in 10:
PN433
It was at this time that I informed the site committee that the proposed changes are in breach of clauses 16 and 21 of the Holden Award.
PN434
When you say "this time", you are relating that to an August site committee meeting, I take it, from paragraph 9?---That's correct.
PN435
Now, Commissioner, could I just ask that the witness be shown a copy of the minutes of the Site Committee Meeting, held on Friday, 20 August 1999, which you will find, of course, in H2 - not terribly far into H2, by which I mean maybe 10 or 12 pages.
PN436
THE COMMISSIONER: What was the date?
PN437
MR DOWD: 20 August, 1999. Now, Mr Gee, just looking a those minutes, you will see that at the second from the top on the right hand column, you are noted as being present?---Yes.
PN438
Yes, and it is paragraph 4 of the minutes that I just want to draw your attention to but please, have a look at the minutes and take your time and let me know when I can talk to you about paragraph 4?---Yes, I've read paragraph 4.
PN439
Now, if I could just contrast what is contained in paragraph 4 with what is contained in - sorry, paragraph 4 of the minutes of the Site Committee Meeting with what is contained in paragraph 10 of your statement. Your statement is saying that the proposed changes, you told the Committee, were in breach of the clauses of the award. Do you have any recollection as to whether that is what is meant by the phrase, "some issues were raised concerning the deletion of the unpaid lunch break use of pass outs and the trades paid breaks", or do you think what is in paragraph 4 of the minutes is incomplete?---I understand the question to be do the minutes reflect what transpired at the meeting in relation to removal of the unpaid meal break, lunch break. If that is the case, the minutes don't capture all of the discussion that took place at that meeting.
**** JONATHON PETER GEE XXN MR DOWD
PN440
All right, thank you for that. Now, if you could just turn over in the documents I've given you with the minutes, Mr Gee, just keep turning, about probably 10 or 11 pages, you will come to some Site Committee Meetings of 22 October, 1999?---Yes, I have that now.
PN441
Again, if you look in the - do you have that, Commissioner?
PN442
THE COMMISSIONER: That is of the - - -
PN443
MR DOWD: 22 October, 1999, minutes of the Site Committee Meeting?
PN444
THE COMMISSIONER: Yes.
PN445
MR DOWD: Thank you, and again, we note that you were present in the second list of names. The middle list of names, second from the top, your name appears?---Yes.
PN446
Yes, and if you have a look at all of the minutes but, in particular, I'm going to direct your attention to paragraph 6 under: Any Other Business - let me know when you are comfortable and you have had a look at the minutes?---Yes, I've read the minutes.
PN447
Now, at this point in time, you make mention that you had a legal opinion regarding the two breaks, and the minutes record that there was a request that you forward these to Mr Holland. Do you see that?---Yes, that's what it says.
PN448
If I could just take you to your statement, paragraph 13, you say:
PN449
At the Site Committee Meeting held on 27 October...
**** JONATHON PETER GEE XXN MR DOWD
PN450
Do you believe that is an error and it should be 22 October?---I believe that's an error.
PN451
Yes, that is fine, and you refer to the paragraph in the minutes under: Any Other Business. What is said there, in paragraph 13 of your statement, is reasonably harmonious with what is in paragraph 6 of the minutes of the Site Meeting, is it not? Your statement in paragraph 6 of the minutes of the Site Meeting seem to agree?---They are similar. My recollection of the request from Mike Holland at the time, as was his normal way of putting these things, was that he would like me to share them with the rest of the Committee.
PN452
I think if you look at paragraph 14 of your statement, you say:
PN453
Mike Holland requested that I provide him with legal advice, and I responded by saying, "I just have."
PN454
?---Yes.
PN455
Is that in response to his question, "Would you share the legal advice with me?", using the language, you say, Holland used?---That's right. Not him specifically, but the Committee or the company.
PN456
All right. Now, in the minutes of the meeting of 22 October 1999, the minutes that we are just looking at, you don't make any endeavour, do you - it doesn't record any attempt made by you to correct the earlier minutes of 20 August, 1999. You will remember that in relation to the minutes of 20 August, 1999 that paragraph 10 of your statement says that you informed the Site Committee that the proposed changes were in breach of clauses 16 and 21 of the award. When we discussed the minutes of 20 August, 1999 under the paragraph numbered 4, you said that you didn't think that paragraph captured the sense of what you said. Do you recall that?---I recall that, and I understand the question, that I made no attempt to amend the minutes, the previous minutes.
**** JONATHON PETER GEE XXN MR DOWD
PN457
All right. Then from there on, I think you repeatedly, one way or another with the Site Committee Meetings, raised your concerns about how the implementation of the change of hours was operating vis a vis pay?---That's correct. I had a disagreement on this matter with not just the company but also with other officials but I was also - I was acting on the basis of other areas that I looked after where workers worked through their lunch break, and there was very little I could do about that because the employer paid the penalty rate.
PN458
But you would agree that from time to time and fairly regularly, it would seem, you raised this issue with the Site Committee?---Continually.
PN459
Now, when you said you had discussions with members of the company and other officials, or disagreements with members of the company and other officials, the comment you just made, you are talking about company officials or union officials?---I'm talking about officials from other unions.
PN460
Thank you, and other than the observations that we looked briefly at in my cross-examination but are set out in your statement, you would agree that the minutes of the meetings that you have seen fairly accurately recorded what occurred at the meetings?---There was always a concern about the minutes of the Site Committee and at certain points in time, those particular concerns weren't raised though until the year 2000, into the year 2000, were they, when I think there's a record of Mr Camillo specifically raising them in February 2000. I think that is the date.
PN461
The concerns that were raised about the minutes at various times were not minuted. Perhaps I should say they were formally noted in the Site Committee Meeting which occurred on 25 February, 2000. If you would just look through to about the middle of that bundle of meeting documents, you will find the Site Committee Meeting of 25 February 2000. Have you found that?---Yes.
PN462
Now, paragraph 2, do you have that, Commissioner?
**** JONATHON PETER GEE XXN MR DOWD
PN463
THE COMMISSIONER: Yes, I do, thank you.
PN464
MR DOWD: Yes.
PN465
Paragraph 2 records a formal concern, or complaint by Mr Camillo, doesn't it?---Yes.
PN466
The documents speak for themselves, but that is the only formal complaint made. I take it the sense of what you are saying is though, the minutes don't always capture exactly the flow of what was being said at the meetings?---I think it was a bit more than that. I've attended site committee meetings for many, many years and on numerous occasions at the commencement of meetings we have disputed certain things that are in the minutes, but I think this is the first occasion that it was actually formally put in writing because the minutes were actually - because I think - my recollection is that the Federation of Vehicle Industry Union meeting had - or officials had all complained about the accuracy of the minutes.
PN467
Why didn't you then insist as other meetings came up that you attended that these matters be noted, or that previous minutes be corrected. We have just looked at a couple of examples where you didn't seek to correct the minutes?---Why didn't we?
PN468
Why didn't you?---Why didn't I, personally?
PN469
Yes?---Really an oversight. I've got to say I believe that the - the operation of that site committee structure was not really a committee that forced things on - from one side of the table to the other. It was pretty much done by consensus.
**** JONATHON PETER GEE XXN MR DOWD
PN470
Okay?---And it is a bit like somebody demanding that somebody work through their lunch break and somebody would be annoyed by that. It is not formally written down. Until that person complains and puts it in writing to that person who is ordering them to work through their lunch break, there is no record that that has ever happened before, but that person could have complained bitterly about that in the past?
PN471
But the whole purpose of taking minutes is so we know what happened at meetings?---Yes.
PN472
You say in your statement that on a couple of occasions when we compare what you say in the statement with the minutes, the minutes don't record what you say was said - what your statement says was said at the meetings, or don't capture the sense of that?---Mm.
PN473
All I'm saying is, well, why didn't you raise that at the time? You clearly read the minutes, didn't you?---I - look, I - the answer is that I should have, perhaps everybody should have and perhaps from now on I will take my tape recorder and we will record everything that happens at those meetings.
PN474
Or perhaps the very good suggestion made in the minute in February, how to deal with the matter is - saves the need to do that but, anyway, that is for the future. Could I just ask that the witness be shown a document. There is a copy for the witness and there is a copy for you, Commissioner. I don't think - it is not in my documents and I don't think it is anywhere else in existence. It is called: An Information Booklet to All Shop Stewards and Union Members re Holden EBA Negotiations. Do you recognise that document, Mr Gee?---Vaguely.
PN475
Just let me put this to you and you tell me if I'm wrong, just for the purposes of understanding what the document is. You see the logo of the ACTU and the FVIU up the top?---Yes.
**** JONATHON PETER GEE XXN MR DOWD
PN476
The logos. You will see down the bottom in the small print:
PN477
Information booklet, FVIU Holden EBA 0109/98.
PN478
?---Yes.
PN479
Can I just suggest this to you, that this is an information booklet, as it says, issued to all shop stewards and union members, by the Federation to Vehicle Industry Unions, in relation to the application of the August 1998 Holden Enterprise Agreement. Why I suggest the date is because at the bottom: Information Booklet, EBA 0109/98. Now, if you just don't know, you know, please say so, but I don't know and I'm asking you to tell me what the document is?---I believe - yes, I know - I think I'm familiar with this document. I believe that this was a summary of the enterprise bargaining agreement that was - - -
PN480
Now, just pausing there, that is the agreement that becomes the August 1998 agreement, you are talking about?---Yes.
PN481
Okay?---And I believe that the requirement is for the workers to have the EBA - a copy of the enterprise bargaining document for 14 days before they voted on it. This document was distributed to all workers and I - at the time I remember I didn't believe that this document was a copy of the enterprise bargaining agreement and it should not be considered a copy of the enterprise bargaining agreement.
PN482
No, that is fine. It actually does not say it as either, does it? It says, it is an information booklet?---I didn't - I didn't actually want anything to do with that document. I believed that that document was not sufficient and that the company should distribute the full copy of the enterprise bargaining agreement, if they wanted to have a vote within 14 days of it.
**** JONATHON PETER GEE XXN MR DOWD
PN483
But this isn't a company document. It purports to be from the ACTU and the FVIU?---I'm not saying it is a company document.
PN484
I'm not asking about the document as to whether it is sufficient to give to employees to enable them to vote, that is not a matter before this Commission. All I'm saying is, it is purports to be an information booklet about the August '98 agreement, does not it?
PN485
MS SMITH: Commissioner, I object to this line of cross-examination. First, this document has never been discovered. It is the first time I've seen it and I would appreciate it if my friend could explain the relevance that this has to the matter before the Commission.
PN486
THE COMMISSIONER: Mr Dowd, I think that is a reasonable point. There has been many occasions on which this document could have been tendered.
PN487
MR DOWD: Yes. It is the union's document.
PN488
THE COMMISSIONER: Yes, I realise that.
PN489
MR DOWD: So it can't possibly take the union by surprise.
PN490
THE COMMISSIONER: That may well be the truth.
PN491
MR DOWD: I have located it. It has come into my possession recently and its purpose is not great. I'm just trying to ascertain what it is, because if you go to page 4 of the document - this answers my friend's second question - if you go to page 4 of the document, it is quite pertinent to the matters at issue before you, Commissioner, because it talks about "flexible work patterns" at the very top and that of course is clause 29 of the agreement, which this document appears to bear upon. It says:
**** JONATHON PETER GEE XXN MR DOWD
PN492
Any matters in relation to work patterns will be dealt with locally through plant or site committees.
PN493
Now, that is not insignificant. What weight you attach to it is for you, of course, but it is not insignificant when you bear in mind the heading of the document. It is an information booklet, apparently, to all shop stewards and union members re Holden EBA negotiations. Its date, of course, is after the date of the August 1998 EBA. That is the point I - the only point I wish to make about the document. Before I could go to those questions with Mr Gee, I had to ask him: whether he recognised the document? There is no point in talking to him if he does not know it.
PN494
MS SMITH: With respect, Commissioner, this clause appears in the enterprise agreement 1998, so this document adds nothing in this motion.
PN495
THE COMMISSIONER: Well, it perhaps reinforces the view that Mr Dowd is expressing.
PN496
MR DOWD: Yes, we can debate that in final address, what weight is attached to it.
PN497
Mr Gee, to return to my line of questioning. Is my summation of that document - would you disagree with my summation of that document, that is, that it appears to be an information booklet issued by the union in relation to the enterprise bargaining agreement of August 1998?---Yes, it appears to be a document issued by Ian Jones.
PN498
Issued by?---Ian Jones.
PN499
Who is that?---He's the federal secretary of the - the national secretary of the Federation of Vehicle Industry Unions.
**** JONATHON PETER GEE XXN MR DOWD
PN500
It is a document that you saw some time - it would seem from what you said earlier - some time at or about the time the vote on the August '98 agreement was being taken, is that - - - ?---I can say to you that I haven't - I haven't read this document. I had no part in distributing this document - - -
PN501
In fact, you wanted nothing to do with it?---No, I was - I was - I was quite happy to take people through the award, but I believed that this was in breach of the Workplace Relations Act. I believe that - and I argued at the time that if any worker, I believe, wanted to put in a protest against the outcome of the vote on the basis of not having the document for 14 days, that that would be legitimate for them to do that.
PN502
All I'm trying to ascertain - - - ?---There would be a reasonable case for them to do that.
PN503
Sorry, all I'm trying to ascertain is when you say you argued at the time, I comprehend what you argued, but what time, when are you talking about?---Sorry, could you ask that - - -
PN504
I argued at the time that if any worker wanted to protest, what time, what is "at the time"? When did you argue about the usefulness of this document - some time presumably - - - ?---Probably in August, September.
PN505
It would seem it couldn't be - - - ?---Towards the second half of 1998.
PN506
It would seem it couldn't be before 1 September, because the document - if we understand the footer correctly - wasn't printed before that?---Mm.
PN507
I seek to tender that document, Commissioner.
**** JONATHON PETER GEE XXN MR DOWD
PN508
PN509
MR DOWD: Yes, I have no other questions of Mr Gee.
PN510
PN511
MS SMITH: I seek leave to approach the witness and give him a copy of a document. It has been discovered, however, I am unable to find - I have a copy also for the Commission and for my friend.
PN512
THE COMMISSIONER: Yes, my Associate will do that.
PN513
MS SMITH: Mr Gee, I have handed you a letter dated 10 February written to Mike Holland, the managing director at Holden's from John Camillo. Could you please read the third paragraph of the letter?
PN514
MR DOWD: Can I just make an observation please, Commissioner. I don't quite follow two things here, how this becomes part of re-examination?
PN515
MS SMITH: It is in relation to my friend's questioning about when the issue of the accuracy of minutes was raised and why Mr Gee did not write and formally request, Commissioner.
**** JONATHON PETER GEE RXN MS SMITH
PN516
THE COMMISSIONER: Yes, it is an issue that is important to the parties, but given that it has been introduced during re-examination, then I will provide an opportunity for Mr Dowd to take up any issues that arise.
PN517
MS SMITH: Yes.
PN518
MR DOWD: I'm not surprised at its introduction, but it is Mr Camillo's document, not Mr Gee's, is my other point.
PN519
THE COMMISSIONER: Yes.
PN520
MR DOWD: Thank you.
PN521
MS SMITH: Do you have any objection for Mr Gee to read the third paragraph?
PN522
MR DOWD: The one numbered - no, of course I don't, anyone, whichever one.
PN523
MS SMITH: Okay.
PN524
Would you read the third paragraph?---
PN525
I have raised my concerns previously. In fact, over the last 6 months or more, the EB site committee minutes do not reflect a true and correct recording of these meetings.
PN526
Okay, and what date is that letter?---10 February 2000.
**** JONATHON PETER GEE RXN MS SMITH
PN527
So 6 months would probably be around September 1999, do you agree?---Yes.
PN528
Yes. Okay. I refer to the document marked as H4, the information booklet to all shop stewards and union members. Do you know who this was distributed to?---This would have been distributed to all of the workers at - I don't know. I don't know for sure the answer is. I would think that it would have been distributed to all of the workers in South Australia and Victoria, and I'm not even sure where this was printed, whether it was printed by Holden's, or by the union - by the F - Federation of Vehicle Industry Unions.
PN529
Okay. I have no further questions, Commissioner, and I request that the witness be released.
PN530
THE COMMISSIONER: Yes, thank you. Mr Dowd, is there anything that arises from the introduction of the letter?
PN531
MR DOWD: Of the letter of 10 February, no.
PN532
PN533
THE COMMISSIONER: I need to mark that letter, I would assume.
PN534
MS SMITH: I suppose, on the side of caution I would press that it be marked as an exhibit, but I'm sure that it appears in some of the many documents before you because I remember you referring to it before on another occasion, so to caution I asked that that be marked as an exhibit.
PN535
THE COMMISSIONER: Given that we have hundreds of pages here, I will mark it as another exhibit. It will be exhibit number S3.
PN536
MR DOWD: Well, could I suggest perhaps a minor change to marking it as an exhibit, I will tell you why, I can't find it immediately, I haven't looked, but Mr Camillo actually has a paragraph saying he wrote this letter in his statement, but the letter is not with his statement and it might make more sense, with the greatest of respect, to mark it in a sort of Camillo-type witness sequence, which might be S24.1, or something, or something, I don't know. I leave that to you, but I just point out it is mentioned in Mr Camillo's statement.
PN537
PN538
MS SMITH: I seek leave to call our final witness, Mr John Camillo.
PN539
THE COMMISSIONER: Yes.
PN540
THE COMMISSION: Could you please state your full name and address?
PN541
PN542
MS SMITH: Could the witness please be handed a copy of his witness statement, it appears at pages 19 to 26 in the applicant's book of documents? Mr Camillo, is that the statement prepared for the purpose of these proceedings?---Yes.
PN543
Is that statement true and correct to the best of your knowledge, information and belief?---Yes, it is.
PN544
I have no further questions of the witness, Commissioner, and I take it that that statement will be tendered and marked as an exhibit S2.4, is that correct?
PN545
THE COMMISSIONER: Yes, that is correct.
PN546
PN547
THE COMMISSIONER: Mr Dowd?
PN548
PN549
MR DOWD: Mr Camillo, could I just take you to paragraph 7 of your statement and that refers to attachment A, and attachment A is that chart or graph, flow chart?---Yes.
**** JOHN CAMILLO XXN MR DOWD
PN550
You say at paragraph 7 that the enterprise bargaining approval process is attached at attachment A. Now, that is a process that come into operation after the introduction of this trial period that we are talking about, isn't it? The process set out in "A" came into operation after that?---Yes, either that one or the one in the - probably the body shop which was a 6.05 start but out of the problems that were occurring at Holdens, yes.
PN551
Yes, I mean, clearly the process, the trial period was introduced in September '99 and it was to run to December '99 and this document is dated 23 June 2000?---That's right.
PN552
So what we are seeing in looking at attachment A is not quite the process as it was in 1999, but rather an altered version?---It was probably a process, there was probably an understanding between the company and the unions but it was never written down.
PN553
THE COMMISSIONER: Perhaps while Mr Dowd is locating the document - Mr Camillo, on page 25 where we have been looking at the enterprise bargaining plant approval process and Mr Dowd has asked you and you have agreed that the site committee meeting date 23 June 2000 endorsed that. What is your understanding of the note underneath that where it says: previously endorsed by Holden management and FVIU?---Well, the - these arise out of the 1995 enterprise bargaining where were talk about plant committees and site committees. Now, if you read the - the clause in regards to flexibility it is sort of confusing of what a plant committee, what a site committee can do and we've always trying to fix those issues up where we sort of - people read it and interpret their understanding of the clauses and so on. So at the site committee we try to have a process where people on the plant committee can deal with those issues and take them to the site committee. Previously we might have had something in place but it mightn't have been in depth, it may be we discussed that certain things happen and they go to the site committee but that was it and people tend to forget in certain areas what happened, on the site committee what happened. We thought at that time by putting a document together and then giving that document to everybody to understand the process it gives everybody a chance to - to view it and to rubber stamp it because I
**** JOHN CAMILLO XXN MR DOWD
think there were some unions that were rubber stamping certain items and yet other unions who might - may not have been at the meeting but it might affect - their members had no chance to - to - to endorse and so on. So we put that process there to safeguard all unions and also a process for the company and the unions to abide by.
PN554
So that is consistent with your answer to Mr Dowd that this process had been operating prior to its formal ratification at the meeting, the site committee meeting of 23 June 2000?---I think at the previous one on that probably never that, it went to the FVIU, it went to the executive and it probably was a process that it went to the plant committee and then straight to the site committee and a decision was made at the site committee. That's my recollection prior to this one. This one here gave the option for the unions to take it away to take it to the Federation Vehicle Industry Union which represents all unions at Holden but also gave it a change for Holdens to take it to the executive to rubber stamp, rather than certain people at that site committee making a decision that effects other unions or executive and management and so on. So the - prior to that it was just a normal way that we might have made a decision on the site committee but because it wasn't working and realised the problems we had, this was put in place and rubber stamped by both parties. I hope that explains.
PN555
Yes, thank you.
PN556
MR DOWD: Now, if I could just take you to paragraphs 9 and 10 of your statement. I just want to set the time that you are talking about there.
PN557
THE COMMISSIONER: I'm sorry, what point was that?
PN558
MR DOWD: Paragraphs 9 and 10 of Mr Camillo's statement.
PN559
THE COMMISSIONER: Yes.
**** JOHN CAMILLO XXN MR DOWD
PN560
MR DOWD: You say in 9, around 1999 Ian Hutchins presented to the site committee the change of working hours for shifts and then you go on in 10 to say: the site committee agreed to a 3-month trial period. They are the events that were occurring in 1999, are they not? Would you like to see some minutes for 20 August?---No. All I can recall is that Ian Hutchins put a presentation on to the EB site committee of Holdens consisting of management and senior officials and shop stewards. My understanding is that Ian was there with either stop steward, it was either Charlie Robertson or a previous shop steward, a guy by the name of John somebody. So there might've been two presentations of the EBA site committee probably around about August sometime, yes.
PN561
Well, to move though it, if can see ..... Commissioner, if you have a look at the site committee meeting minutes for 20 August 1999 these minutes record in item number 4:
PN562
Change of working hours plant 4 press.
PN563
I'm reading to - - -?---Yes.
PN564
...a presentation by Ian Hutchins, press shop manager and two representatives from the press shop EB committee detailed the intent to modify the hours of work on all three shifts and the consultative process thus far taken. Some issues were raised concerning the deletion of the unpaid break, use of pass-outs and the trade breaks.
PN565
THE COMMISSIONER: That is the unpaid lunch break?
PN566
MR DOWD:
**** JOHN CAMILLO XXN MR DOWD
PN567
The unpaid lunch break, use of pass-outs and the trades paid break. It was agreed that the proposal would be a for a 3-month trial and restricted to plant 4 press shop for the duration of the trial. During the trial alternative proposals would be countenanced and the senior shop stewards would assess the trial and report taken to a further site committee meeting. Action: Plant 4 in the committee.
PN568
That is the presentation, or one of the presentations of Mr Hutchins you are referring to?---If that is reading out of the EBA site committee minutes, yes that is a presentation to - by Ian Hutchins who is the site committee but you what you read in the minutes probably isn't a true reflection of anything that was said and presented to the EBA site committee.
PN569
That is fine, we will come to that, but that puts the time of paragraphs 9 and 10 of your statement to be around August 1999?---Yes, that's my understanding, yes.
PN570
That is what I wanted to get to. Now, you say - or just said that the minutes of the site committees were not always accurate?---That's right.
PN571
On at least one occasion you are recorded as correcting the minutes of the site committee and that is in February 2000 making a correction to some site committee minutes of January 2000. Would you like to see those minutes or do you know what I'm referring to?---I think I understand it, yes.
PN572
Are you quite sure?---Well, if I can have a copy, but - - -
PN573
The copy I have, Commissioner, that was with Mr Gee seems to have disappeared - it is there, thank you. So if you go to the site committee meeting minutes for 25 February 2000 and that is probably around halfway through the document?---25 February 2000?
**** JOHN CAMILLO XXN MR DOWD
PN574
25 February 2000?---Yes.
PN575
In particular, I draw your attention to paragraph 2?---Yes.
PN576
Now, this is the point that I was just discussing with you, isn't it, where you actual ..... the correct minutes of the earlier meeting?---Yes.
PN577
You would agree with me, would you not, for the purpose of having minutes is to record what is said so that at a later stage one avoids debate about that? You have to speak because your voice is recorded?---Sorry - yes.
PN578
Thank you. Now, insofar as actually correcting things in minutes is concerned and you are welcome to look all the way through those but you probably already have. I think that is the only occasion where you are recorded as making a formal amendment, a comment under the - where due to the acceptance of minutes is recorded. Do you agree with that or are you not sure?---In regards to recording the minutes, yes, but in regards to a verbal between the company in regards to me has not been correct that has been raised, probably prior to that entry - I had better say that the relationship between the unions and Holden was very, very good and when those minutes were taken they were just looked at. There might've been some major changes, or some minor changes needed to be done, but a good understanding between the union and the company at that time, was just over-looked and we left it at that.
PN579
Would you agree that by and large the site committee minutes in relation to this matter, this period of time, had reflected reasonably accurately discussions that had taken place?---Not quite, because I think when Ian Hutchins put the presentation in regards to the flexibility of the working hours in plant 4 my recollection at the time was that the union was concerned about the unpaid break but because of probably about 98 per cent of the workers wanting to do those hours the union decided okay we'll do the 3-month operational period but subject on - about three issues I think it was. I think, one, that myself or Paul
**** JOHN CAMILLO XXN MR DOWD
Niker was the State Secretary of the AMWU, I was the regional secretary of the B division, we'd address the workers to explain what the interpretation of the union is and the unpaid meal break. Another issue I think might have been the workers compensation referred - workers compensation parts - there was about three issues that was raised that mainly concerned with the union and I think the minutes didn't reflect that at all in the - I think it was either the August or September - August EBA site committee and that was explained to the company at the next meeting that those three issues were omitted from the minutes.
PN580
That was explained to the company, when, I'm sorry?---That was explained at the next EBA site committee after the - the - August, Ian Hutchins put a presentation on to the union. Ian Hutchins put a presentation onto the EB site committee in August. Those minutes didn't reflect that and then at the next meeting whether it was September or October it was reflected by the unions that those three issues were omitted.
PN581
I'm sorry - now, that you have the minutes in front of you, could you find the minutes of the site committee of 20 August please?---20 August 1999.
PN582
Yes, and if you look in the second column of names, the fourth one down that is your name as present?---Yes.
PN583
Now, please feel free to take your time having a look at these minutes, but it is paragraph 4 that I read to you a little while ago and that I want to direct your attention to. Let me know when you are ready for me to ask you a question?---Yes.
PN584
Now, that records that some issues were raised if you look at it concerning the deletion of the unpaid lunch break use of pass-outs and the trades paid rates. Now, that was, as I understand your evidence, you say is a little skimpy, it does not quite thrash out what was discussed, is that correct?---That's right.
PN585
But nevertheless you would agree with the next sentence:
**** JOHN CAMILLO XXN MR DOWD
PN586
It was agreed that the proposal would be for a 3-month trial and be restricted to plant 4 press shop for the duration of the trial.
PN587
Because you said, I think you used the figure, 90 per cent of the men wanted to try it. You would agree with that?---My understanding, yes, that is my understanding that the workers did want to do that trial for that period, yes.
PN588
And it is your understanding that the comment here: it was agreed that the proposal would be for a 3-month time, is in fact a genuine agreement?---That's right. That was agreed at that - that day that it would be a 3-month trial period.
PN589
And they are the matters - that is clumsy. I will just start that again. And in paragraph 10 of your statement, but please keep the minutes of the committee meeting open as well, in paragraph 10 of your statement you say that there were three matters that were raised at this committee meeting?---Yes.
PN590
And if I look at paragraph 11 of your statement, do I correctly understand your statement to be saying that it was in around December 1999 that you did the matters referred to therein, that is, that you addressed all the workers for the day shift, etcetera, that is what you are saying, isn't it, it was in December that you did that?---My understanding I addressed the workers two times, mass meeting of workers. My - I'm not to sure of the date whether it was September or October and there was another one just prior to Christmas. So there was two mass meetings and that would've been one of them that I would have addressed the workers.
PN591
I understand, and of the two, one was before December?---My understanding, yes. I think - - -
PN592
When you say, your understanding - - -?---It was pretty close to Christmas.
**** JOHN CAMILLO XXN MR DOWD
PN593
- - - you mean your memory?---My memory, yes.
PN594
Okay, so there was one close to Christmas and one earlier than that?---It was either earlier or it was after Christmas. I know all I can say is that I had two mass meetings at different times and they might have been 3 or 4 months apart.
PN595
Was the purpose of those mass meetings to carry out the function that is set out in the number 1 in paragraph 10, that is:
PN596
Myself who was then regional secretary of the vehicle division addressing all plant for workers to explain the award provision on unpaid meal breaks.
PN597
?---Well, my understanding and the minutes don't reflect that, in the August EBA site committee, it was agreed by the company unions that it was either myself or Paul Noack who would address the mass meeting of workers with the unions understanding of the unpaid meal break and the company allowed me to go down. I would have addressed those workers in regards to the unions understanding of the unpaid meal break and I addressed the day shift, afternoon shift, midnight shift, workers and put to those workers the interpretation of what the award meant with the unpaid meal break and what the award meant in regards to smokos. What I done is use a whiteboard because it's probably a lot easier to explain when you are talking to 200 workers by putting on a whiteboard what we meant by unpaid meal break, what we meant by meal breaks and relief breaks because there is a bit of confusion when you look at those award clauses and that's what I put on the whiteboard for the three shifts. Each shift was different, a day shift we had one meeting, the afternoon shift another meeting and the midnight shift another meeting. My first mass meeting of the workers was for the sole purpose of explaining to those workers that what they were doing was wrong and that there was an unpaid meal break and that was the interpretation of the union at the time. My understanding which had come in quite clear from the workers was that the union needed to get its act together, that the union needed to get a legal opinion because when they asked me how positive I was in regards to interpretation of the award, I've got to be honest, I wasn't 100 per cent positive in regards to that. So from the first meeting we went away and got a legal representation regards to it.
**** JOHN CAMILLO XXN MR DOWD
PN598
All right. Can we just return to the question I was asking. These addresses which you have just described in some detail took place after the introduction of the new system of work pattern, didn't it?---That's right, after the approval of 3 months to go ahead, yes.
PN599
That is right. So we are saying is in August 1999 the minutes record that there will be - there is an agreement to introduce to trial this work pattern for 3 months, correct?---That's correct.
PN600
After that, after the trial is in place, you then have one or two sessions addressing the workers about the matters you just outlined?---Yes, in regards to the 3 months that was approved by the unions, yes, I would have talked to those workers en mass, yes.
PN601
About the matters you just told us about in length about the whiteboard and so?---That's right, yes.
PN602
Now, if I could just get you please to turn over the minutes of meetings to the next site committee meeting which is in October and is in fact on 22 October 1999?---I have that before me, yes.
PN603
Have you got that, thanks Commissioner. Now, again you will see that you are present. You are third name from the top on the right-hand column?---Yes.
PN604
All right. Now, you note that there's a record here that the minutes of the previous meeting, of 20 August 1999, were accepted, paragraph number 2?---Yes.
PN605
So you didn't seek to make, or at least it does not record you as seeking to make any change to those earlier minutes that we were just looking at, that is paragraph 4 that talked about Mr Hutchins carrying out a presentation, does it?---That's how the minutes reflect that, yes.
**** JOHN CAMILLO XXN MR DOWD
PN606
Yes. If I could just take you to - now, please feel free to look at any other paragraphs in it, I'm not trying to confine you but the one I want to ask you a question about is paragraph 6?---Yes.
PN607
Now, what I'm going to suggest to you is that Mr Gee raised this issue in this meeting and that it was after he raised this issue, some time after, that the workers that you addressed also said they wanted the union to get a legal opinion. Does that sound right or can you not recall?
PN608
THE COMMISSIONER: Are we still on 22 October, site committee meeting?
PN609
MR DOWD: Yes.
PN610
THE COMMISSIONER: Which paragraph number?
PN611
MR DOWD: Number 6.
PN612
THE COMMISSIONER: Number 6. Which part of number 6 are you referring to? I have five points.
PN613
MR DOWD: Sorry, I didn't hear you properly. Mr Gee stated that he has a legal opinion regarding the two paid breaks and my question was - - -
PN614
MS SMITH: Subsection 6 of 6, Commissioner.
PN615
MR DOWD: Paragraph number 6 under, "Any other business".
PN616
THE COMMISSIONER: What number under 6?
**** JOHN CAMILLO XXN MR DOWD
PN617
MR DOWD: Paragraph 6.6, sorry.
PN618
THE COMMISSIONER: I see.
PN619
MR DOWD: Headed, "Plan for change of working hours".
PN620
THE COMMISSIONER: Yes.
PN621
MR DOWD: I was afraid you were missing a page for a minute. No, I'm sorry, Commissioner.
PN622
What I put to Mr Camillo was that here Mr Gee has recorded as stating that he has a legal opinion regarding the two paid breaks, could Mr Camillo recall whether it was at some time after Mr Gee raising it in this meeting that the workers asked the union to get a legal opinion? If you don't know, just say so?---I'm not 100 per cent sure, no. All I can say is I know the workers asked the unions to get the legal opinion. I could say that. I know there was a lot of discussion between Holdens and the unions and Holdens asking that if we have got a legal opinion to give them the legal opinion. I know there was those discussions but I can't recall on that day whether that was a discussion or what the situation is. I can't honestly say one or the other.
PN623
I imagine what you would agree with is that any documents that record any of these matters would, unless you want to raise anything specifically, are more likely to be more accurate than your memory giving evidence today?---The only thing I might have taken some notes in regards to mass meetings and what I was saying to those workers and the actions coming out of those meetings. I might have that, I might not have, I can't recall but it's going back, like I said, 1999.
**** JOHN CAMILLO XXN MR DOWD
PN624
Of course it is and even that makes the point though, does it not? If you did have any notes, you would believe that they would be more likely to be accurate than any independent recollection you would have today. I mean it makes sense, does it not?---If you've got notes, yes. Once you've got notes, yes.
PN625
Could I just ask that the witness be shown exhibit H4 please?---I have that, yes.
PN626
Now, could you just explain to the Commission what that document is? Actually I withdraw that question. I apologise. Have you seen the document before?---I've probably seen it but it is something that we put out as the FEIU in regards to all EBA, you know, to bring shop stewards up to date rather than reading the whole 30, 40 pages. We really break it down and give documents to the shop stewards so the shop stewards can go and talk to their members in regards to what the enterprise bargaining may be or part of the negotiation or what has been finalised. So just looking at the bottom of information book, FEIU Holdens EBA 1st of the 9th 1998, so I presume it's the 1998 EB document.
PN627
So is this a reasonably description that it is a bit of a precis in a handbook as to how the EBA - it is a guide post as to how the EBA should work?---That's right. This is a national FEIU, National Federation of Vehicle Industry Unions could come together because with an enterprise bargain at Holdens, you have Victoria and South Australia and this was combined by the National FEIU.
PN628
Yes. I don't have any further questions on that document, thank you.
PN629
THE COMMISSIONER: Yes, thank you. Ms Smith?
PN630
MR DOWD: No, sorry, just on that document. I haven't finished with the witness. I apologise, Commissioner.
**** JOHN CAMILLO XXN MR DOWD
PN631
THE COMMISSIONER: I beg your pardon.
PN632
MR DOWD: The witness needs to be given a chance to comment on S3, it is, Commissioner. Now, that is the letter from Mr Camillo to Mr Holland. Now, the letter clearly speaks to itself but if I can just paraphrase it. What the letter is doing is in fact recording earlier than your comments at the site committee meeting of 25 February 2000 another issue that you have, not only with the 31 January 2000 minutes which you raise on 25 February but with these earlier matters in August 1999. That is the effect of the letter, isn't it?---Yes.
PN633
I asked you a question earlier about whether you thought that by and large the minutes had - and I actually read the words to you from the very first paragraph of this letter:
PN634
...have reflected reasonably accurately the discussions that have taken place.
PN635
You responded by saying that you didn't think they did, that there were occasions where there was disagreement about the minutes in discussion and then you went on to say that you, you the unions, had always got on well with Holden. In fact, when you open with this letter, you put the contrary position, don't you? You say that the minutes have reflected reasonably accurately the discussions? Do you agree with that proposition that you put in 2000?---Well, in regards to writing the letter to Mike Holland at the time, like I said earlier on, the relationship between the unions and the company has been very very good and it is a good working relationship between the union and the company. I think we have built it up since the 1995 enterprise bargaining where we had the plant and your site committees and we had this approach where you got this trust between the company and the unions. So therefore you have the minutes. Even then the minutes don't reflect a true reflection of really what's happening, you don't mind it because you can correct it and you can discuss it, you can talk and there is trust between the two groups. We kept on going forward and with this issue on plant 4 and another issue of the 605 start in the body shop where we had some disagreement, I decided that correspondence needed to go
**** JOHN CAMILLO XXN MR DOWD
backwards and forward because I think we were just - you know, the company and the union were sort of moving apart in some areas. When that happens, you've just got to note these things down. So that's one of the reasons why I wrote to the company at the time because of certain things that were happening. Previously we just sort of would have let it go and get on with business and so on.
PN636
So in fact previously, and you say previously, you would let it go and get on with business. That is exactly what has happened up until 10 February 2000 when you write this letter making a more formal statement of your position?---That's right.
PN637
You also raise in this letter the same types of matters in your example that you have told us about insofar as the minutes. That is, the things that were agreed by all, as you say. So you have got those dot points?---Yes, that's my recollection, yes, for example, yes.
PN638
It would be fair to say then although you say the minutes of August 1999 don't reflect this position as set out in this letter, it is not until 10 February 2000 that you formally make it apparent to the company that this is the correct position. This, what is said in the letter of 10 February, is the correct position insofar as the minutes of August 1999 are concerned?---That's right, yes.
PN639
This is possibly a question you just can't answer with the influx of time but I have to ask why you didn't raise these matters in the next site committee meeting of October 1999?---A lot of discussion. You need to first of all look probably at the agenda of that meeting whether there was those issues of plant 4 was there. It's hard to say - - -
PN640
Well, no, no, let us not guess. You can have a look at the agenda but - and I want you to do that but don't want a guess. So if you have a look at the site committee meeting for the October - - -
PN641
MS SMITH: Are you referring to 27 October 1999? You said August twice.
**** JOHN CAMILLO XXN MR DOWD
PN642
MR DOWD: No, the site committee meeting 22 October 1999.
PN643
MS SMITH: Thank you.
PN644
MR DOWD: Now, you will see that not only was the plant 4 issue mentioned, it is in paragraph 6(6) of the last page, but you will also see in paragraph 2, the very first paragraph 2, that is not 6(2), minutes of previous meeting were accepted?---That reflects - yes, that's what the minutes reflects in regards to that, yes. I can't say whether I recall raising it or not raising it, I can't recall at this stage whether I did or not but it was a major concern for the union and still is in regards to that, unpaid - - -
PN645
Well, I comprehend that but if it was a major concern for the union, wouldn't you agree that you would raise it at the meeting on 22 October?---Like I said it might have been raised and the minutes don't reflect that but it was an issue the union had continuously discussed and tried to resolve this issue of the unpaid break.
PN646
Yes, all right. If it might have been raised in the minutes of 22 October don't reflect you raising it there, wouldn't it be fair to say that you would have raised that issue as well in your letter of 10 February 2000? You don't make any comment about inaccuracy in the minutes of October 1999 and yet you are able to make comment about inaccuracy in August 1999?---Yes. I think in regards to that it is just probably one of the frustrations when I wrote to Mike Holland on 10 February. I wasn't just raising the issue about 31 January but it reflected the issue of the August one but, you know, whether it was overlooked by myself or, you know, wasn't raised there, I can't say whether it was or not. It might have been raised but it hasn't been recorded in the minutes but I can't say.
PN647
You wouldn't say the minutes of 22 October '99 are wrong?---Sorry?
**** JOHN CAMILLO XXN MR DOWD
PN648
You wouldn't say that the minutes of the site committee of 22 October 1999 are wrong?---No. Well, regards to that, no. In regards to the way you put it and now you have made me aware of it, yes, you know, if I knew it on 10 February when I wrote the letter or prior to that, I probably would have raised it but, no, at that time I didn't raise it.
PN649
Well, you say you probably would have raised it, but let us look at your accurate recollections about these things. What you can accurately recall today, just get rid of terms like probably or would have, is that you had some concern about the fullness or detail of the site committee meetings minutes for a period of time?---I wouldn't say for a period of time but there were times they weren't that accurate, yes.
PN650
That concern was raised in the letter of 10 February 2000 to Mr Holland?---That's right.
PN651
I don't intend this as any criticism, in fact I would suggest you would be remarkable if you can remember everything that occurred at meetings back in 1999 but beyond what is in the documents and in that letter of 10 February, your recollection of events is not as accurate as what these documents record. I'm not saying it is wrong, I'm just saying it is not as accurate?---Well, the response was to Mike Holland of 10 February of union concerns about those matters and so on. If there was any major correction of the way I wrote the letter or anything, I would have got a response from Mike Holland and I presume that Mike Holland would accept it or else he would have responded in the negativity in regards to what I had wrote to him.
PN652
I understand that but all I'm putting though is the fact that you haven't raised anything about, say, the October '99 minutes would indicate that you didn't have a concern about them, wouldn't it? I mean, back at this time you didn't raise any concern?---Well, if I was aware of it, I probably would have raised it but I didn't.
**** JOHN CAMILLO XXN MR DOWD
PN653
So does that mean you weren't aware of it or you just don't know?---Probably wasn't aware of it.
PN654
If I could ask you to have a look at the site committee meeting minutes for February 2000 again, please, that is 25 February 2000?---Yes, I have those.
PN655
Sorry?---Yes, I have that.
PN656
You say, in your statement, at paragraph 20:
PN657
Also the most important fact -
PN658
and that is underlined -
PN659
was the February 2000 site committee minutes reflected I was extremely disappointed that plant 4 managers were addressing plant 4 workers for the endorsement to continue the working hours contrary to the unions and EBA flexibility clause.
PN660
Do you see that in your statement, paragraph 20 of your statement?---Yes.
PN661
Now, if you look at the notation in the minutes of the meeting, under: Business arising, paragraph 3.1, basically that is a repeat of what is in your statement, you were disappointed to hear that the plant 4 managers were addressing the workers?---Yes.
PN662
Why do you say that is the most important fact?---What do you mean "the most important fact"?
**** JOHN CAMILLO XXN MR DOWD
PN663
You say it, Mr Camillo. Paragraph 20 of your statement, also underlined, "the most important fact"?---Okay. Most important fact for myself was it was a 3 month probationary period that the unions agreed in regards to working those hours in plant 4, 3 months. The company was well aware the union was seeking the underpayment of wages - not seeking but had a problem with the unpaid lunch break and I was extremely concerned that the company went ahead and continued, against what the union was saying, about working during the unpaid lunch break and continued to work those hours - put to the workers they would continue working those hours. So for myself I would say that was an important fact that the company was well aware of what the union wanted and the company still decided to go ahead and work these hours contrary to what the union was saying so an important fact to us was that then, by going ahead with those hours, they were in breach of the award in regards to unpaid lunch break and that is why I put in there the most important fact, it was that fact.
PN664
I understand. Now, if I could just ask you then to go over to the site committee meeting, 29 March 2000?---Yes, I have those.
PN665
You will see that you are in attendance in the third column from the top - sorry, left hand column, third name from the top?---Yes.
PN666
If I could just take you to the bottom, under: Business arising, it records you as explaining that you distributed a letter through plant 4 press shop detailing the union's view position. Then it goes on to say this and this is what I want to ask you about:
PN667
In addition he was disappointed that management had addressed workers without the union's knowledge.
PN668
Mr Jamieson, from the company, is reporting as refuting that allegation and explaining that following the last site committee meeting on 25 February 2000 - you recall that was the minutes we were just looking at recently or last, where you raised this most important fact. Here is not Mr Jamieson refuting your most important fact where he says:
**** JOHN CAMILLO XXN MR DOWD
PN669
Press shop. EB plant committee meet to discuss the issue at which official shop stewards were invited to attend. The attendees of this meeting overwhelming endorsed the plant seeks support for press shop employees regarding the new 8 hour shift arrangements.
PN670
Now, do I misunderstand that? Is that a reply from Jamieson to matters that you raised on 25 February 2000?---I can recall raising the issue - well, actually one of the senior shop stewards approached me saying that the company is asking the workers to continue this 3 months. I raised it at the meeting. I can't say that the March meeting minutes of Jeff Jamieson refers to the new 8 hour shift which the unions put forward or whether he's talking about the old way of going forward - the old system that was there.
PN671
At the end it is not clear whether he is in fact responding to what you said, you are recorded as saying and agree you said, in the minutes of 25 February 2000, is it?---If I raised this in February - I am just trying to see whether Jeff Jamieson was at the meeting and he was at the meeting so by raising it I would presume that Jeff would have then had to explain, at that meeting, and give response in regard to what I was saying and what was happening so I don't know why - you now, why it takes a month afterwards that he then refutes what I said at the previous meetings earlier. Why it didn't come out - I'm not too sure the intent of that, the way it was written, that paragraph, what it really meant.
PN672
Well, perhaps that is why it comes under: Business arising in the meeting on 29 March 2000, business arising from the previous meeting where Jamieson appears to be refuting what you have said or may be refuting what you have said?---I understand that. Like I said, on 25 February, when I raised the issue in regards to the company going ahead with it, there was nothing there about Jeff Jamieson responding to what I would have said.
PN673
That is beyond doubt. There is nothing there until the next meeting. Then, curiously, if you go to the following site committee meeting minutes of 26 May 2000?---Yes.
**** JOHN CAMILLO XXN MR DOWD
PN674
There seems to be no further comment except that it is noted that the minutes of 26 May 2000, that is a typing error, it would seem because this is the only on which this site committee meeting, minutes of 26 May 2000 are accepted, do you see that? Of course, that can't be right because that is the day on which - - -?---That's right.
PN675
- - - this meeting is occurring so it must be the minutes of the previous meeting, as it's heading suggests, in two, minutes of the previous meeting and the previous meeting is 23 March 2000, do you agree with that?---I think that's right, yes.
PN676
One of the things that working through these meeting with you illustrates is that really whilst people might have views now about what might have been said at various times. We all are having to fall back on what is recorded in the minutes or in letters, aren't we, and that is a fair proposition?---In some of the minute stuff you would probably say yes but in some of the major stuff you would have a recollection of what really occurred and what has been the issue on major issues, you know, major problems.
PN677
You would know the issue but you would agree you wouldn't necessarily know what was said?---I think, in regards to the EBA site committee, most of those are minor issues, you could yes, that is probably correct but like I said, major issue that has got a concern for the workers or for Holdens or for the unions, you would recall roughly probably the guts of it in regards to what you go for, surely.
PN678
I just want you to stay with the site committee documents or the bundle that has the minutes from the site committee meetings and so on and I want you to find an email which appears immediately after EBA plant 4 minutes of Wednesday 24 November 1999. It is an email from Ian Hutchins dated 2 December 1999?---2 December?
PN679
2 December 1995?---To Jamieson, cc Mike Holland?
**** JOHN CAMILLO XXN MR DOWD
PN680
That's the one?---Yes, I have that.
PN681
I just ask you to have a look at it and I tell you why before you read it, if you like. It is not your document, you didn't write it, obviously but I am wondering if the contents of it - what comment you have in relation to the contents of it in particular in that it may or may not refresh any of your memory as to what happened in December 1999 and the reason most specifically I am bringing it to your attention is because you say,in paragraph 11 of your statement:
PN682
Around December 1999 I addressed all the workers of day shift, midnight shift and afternoon shift.
PN683
?---Yes.
PN684
If you would just have a look at the email the proposition I am going to put to you is that seems to relate to the events of paragraph 11 of your statement, the addressing of shifts on December 1999?---I've read my statement, yes. Do you want me to read the whole lot in regards to the letter to Jeff Jamieson, the whole email?
PN685
The email, yes, only to let me know if these are the events that are being referred to in paragraph 11 and if this email refreshes any memory of yours?---Yes, well my recollection is probably about - not quite the same but the points there in regards to myself raising the flexibility in the EB would've been explained to the workers, the business sense of Holdens, that would have been a issue that I would raise because both, you know, employees and union and company working together.
PN686
Can I just interrupt you there:
PN687
The flexibility contained in the EB would have been explained to the workers at the meeting of 1 December.
**** JOHN CAMILLO XXN MR DOWD
PN688
What do you mean by "the flexibility contained in the EB would have been explained"?---In regards to flexibility, what workers can agree to in regards to changing their flexibility is like, you know, their relief breaks and those sorts of things. I would explain the flexibility of what the plant committee does and the site committee does and so on. I would have went straight onto this is an unpaid lunch break and so on, it would have been an introduction in regards to why we were there, the issues and so on.
PN689
It would seem - I do not want to get into the inflammatory parts of the second to top paragraph on the second page:
PN690
The workers became very annoyed.
PN691
I want to ignore that. It would seem that the workers, your members, asked you to take the issue to the IRC for a ruling, if this record is correct, does that seem right?---Look, in regards to the workers being annoyed, I mean, in here it says the workers were annoyed, probably more the union, I have got to say on the afternoon shift the workers were probably more annoyed that a survey was not reconducted by all the workers in approving working the three shifts. What was told to me by the afternoon shift workers that the supervisor or work leaders were going around and discussing the three 8 hours proposition. Nobody said it was going to be rubber stamped. What I was getting back from those workers was that they were told it was only a survey and no recommendation and that surprised me because at the EB site committee I did put a presentation that 98 per cent of the people wanted to do this and yet when I addressed the mass meeting of workers on afternoon shift there was all this hostility towards the union - - -
PN692
Just pause there. At the EBA site committee were that occurred, that was in August 1999 wasn't it?---That's right.
PN693
Now, this is happening in December 1999?---That's right?
**** JOHN CAMILLO XXN MR DOWD
PN694
So there is a change of complexion, you might say, from August 1999 to December - from the introduction of the trial in September in parts of plant 4 to December there is a change or view amongst the members?---No, no there wasn't a change or view. The workers told me directly that they were very disappointed that they were railroaded into doing these three shifts and they really never had a vote on it. They were only asked whether they wanted to do these hours and the company went away and before they knew it, they were forced to do these shifts. That is where the hostility came towards the union in regards to why did we allow that to happen and so on and so on.
PN695
You did allow it to happen because at the site committee meeting in August 1999 it was agreed that the shift would be implemented and then in the next plant 4 EB meeting minutes, after that site committee, the plant 4 EB, has the job of implementing the change and that is what the minutes show. Now, I don't mean this uncharitably but for the purposes of this exercise, I am not fussed whether the workers were cross with the union, cross with the world, not cross with anyone or cross with the company. What I am saying here is was it, at this time, is this right, at this time the members say to you that they would like the union to get a ruling from the Australian Industrial Relations Commission, do you think that record is correct?---I thought my understanding of that meeting was that the workers sought us to get legal advice because we weren't extremely confident in the interpretation of the award.
PN696
So do you think the workers - - -?---And the EB.
PN697
So do you think the workers wanted - this is wrong where it says "for a ruling" you think they wanted legal advice?---My understanding is I went away from those meetings that we had to get legal advice, they were satisfied with legal advice and if the legal advice was that it was contrary to the award then we would then seek - taking it before, you know, whether it was Industrial Relations or someone. I myself was - my understanding of day shift, afternoon shift and midnight shift, I went away, getting legal advice, to report back to the workers, that's my recollection of that.
**** JOHN CAMILLO XXN MR DOWD
PN698
And that is legal advice about the legality or otherwise of the introduction of the change to the system of working?---My understanding was in regards to the unpaid lunch break.
PN699
As to whether there was an entitlement to payment or not?---That is right.
PN700
Yes, and so if you are right, that is it was about legal advice, that point arose at this meeting on 1 December?---Whether the day was around - probably about December.
PN701
It is pretty clear, isn't it, that prior to the end of the trial, which was either 4 or 5 December, the following has occurred, the union through yourself and through Mr Gee, have raised concerns about the entitlement or otherwise of workers to this penalty pay for meal breaks, that is correct, isn't it?---Yes.
PN702
Yes, and then how so ever would you agree with this, that prior to the end of the trial, whether it is at these meetings of 1 December, the workers say that they want guidance from the AIRC as to - or a ruling as this says, as to the correct interpretation of the award, or you say that they wanted you to get some formal legal - some legal advice?---Look, my understanding was that I went away to get legal advice and to determine whether it was legal to do it or not legal to do it, that was my - whether the - naturally if it was illegal to do it of course, workers will be seeking their, you know, underpayment of wages but I'm not too sure, I wouldn't say that the workers said: go to Industrial Relations Commission and sort this matter out. My understanding was at that meeting to get legal advice and if it was underpayment of wages, then we would go further down the track, what ever it - it needs - needs to do, to go by Industrial Relations or Federal Court or MAB.
PN703
And the expiry date at the trial period was 4 December 1999 which was a Saturday, wasn't it? Can you recall?---Sorry?
**** JOHN CAMILLO XXN MR DOWD
PN704
Can you recall?---I just recall probably an endorsement in August, it would probably be up and running at the end of August or the beginning of September, so it was somewhere prior to Christmas, a 3 months - - -
PN705
Well- - -?---expiry, yes.
PN706
We have agreed as an agreed fact that the - it is agreed fact 3, the expiry date of the trial period was Saturday 4 December 1999 and if I could then take you - just past that email to the next document EBA plant 4 minutes of 8 December '99?---Sorry, what was that?
PN707
Sorry, EBA plant 4 minutes of 8 December 1999?---18th - 8th?
PN708
8 December?---Yes, I've got that before me.
PN709
Now, I don't suggest you were at present at this, I just want to follow a train of events from your meeting with the workers on 1 December 1999 to the time when the trial expires and to shortly thereafter. So you see paragraph 3 under "items discussed - 8 hour shifts status quo to remain" until "management and union resolve outstanding issues"?---Well, that EBA plant 4 minutes, I mean, that is a plant committee so I'm not - I'm not - - -
PN710
No, no, I'm just saying you can see that, I'm just pointing this out to you. I just want you to note what is in paragraph 3 there?---Yes.
PN711
Just observe it?---Yes, I note that, yes.
PN712
Just observe it, and then if you go over to a couple of documents you will get "EBA plant 4 minutes 19 January 2000" the same observation applies. You are not there and I'm just asking you to observe paragraph 2; "8 hour shift remain at present until we obtain the legal opinion from Mr Camillo"?---Yes, I've seen that.
**** JOHN CAMILLO XXN MR DOWD
PN713
Now, that is consistent with what you have been saying, that you were to go away and get some legal advice. And then if you go to the next document where you are present, 31 January 2000; "site committing meeting" under paragraph number 4; "plant 4 change of working hours." I will just leave you to read that?---Yes.
PN714
Now, you would agree that that captures the sense of what was being said at the time? That is that paragraph 4 - - -?---Yes, yes.
PN715
And ultimately this matter was concluded, wasn't it, in about June or July 2000 in a way not too dissimilar from the suggestion made by Mr Owen, that is that there was a bit of a change around and some fine tuning, and the proposal met the - was accepted by the union, met the award requirements people felt and was implemented?---Well, there is a lot more work there than that. It was the - - -
PN716
I don't - no, I don't suggest it was an easy task?---Yes.
PN717
I don't - but that is what happened, that was the outcome in the end?---The outcome in the end, it was changed to the satisfaction of the workers, the unions and the company, yes.
PN718
Yes, and that - no that is all right, I withdraw that. Thank you very much for your time Mr Gee, I have no further questions of this witness.
PN719
THE COMMISSIONER: Mr Camillo.
PN720
MR DOWD: Mr Gee, I beg your pardon, Mr Camillo.
PN721
THE WITNESS: Okay, thank you.
**** JOHN CAMILLO XXN MR DOWD
PN722
PN723
MS SMITH: Mr Camillo, do you have the letter before you that you wrote to Mike Holland dated 10 February 2000?---Yes, I have.
PN724
Okay, in the third paragraph you say: I have raised my concerns previously, in fact over the last 6 months or more. How did you raise your concerns over the last 6 months or more to Holden?---Well, actually in regards to that paragraph, it would have been at the EBA site committee where we either meet on a bimonthly or on a monthly basis, so those issues would have been raised. The minute taken at the time was a company as it is today, would take the minutes and just done verbally.
PN725
Who did you advise verbally?---Well, I would have advised the site committee where the unions and the company representative was at the site committee in regards to previous minutes that were taken and it was always taken by the company and just distributed out to everybody without the union having a chance to rectify any of those changes. So it would have been done at those site committee minutes - meetings.
PN726
So your verbal complaints over the last 6 months or more weren't minuted either, is that right?---No, no, not that I can recall.
PN727
All right, I will just refer you to your statement it is an attachment A the enterprise bargaining approval process. Earlier in your evidence, the Commissioner asked you a question to explain this. Just to clarify, were you saying that this process was changed to include the involvement of the FVIU and Holden's executive to make sure that future proposed flexibilities were not breaching the award? Is that - - -?---Yes, what happened - I will give you for an example, it is probably easiest to explain, a situation where a plant committee met, which was let us say the body shop. The vehicle division
**** JOHN CAMILLO RXN MS SMITH
which is mostly production workers wanted to start work early because of the summer period and also the company wanted those production workers to start early. They came up with a proposal to start work at 5 minutes past 6 and that went to the site committee, the shop steward and the area manager, put a presentation to the site committee. The company wanted an answer straight away. The site committee endorsed just the vehicle division to start at 6.05 and all the workers were notified in regards to these changes, all those workers supported those changes. The site committee endorsed those changes only for the vehicle division. And the problem that arose was that when they implemented the 6.05 start, those workers to change their hours from 7 o'clock in the morning start to 6.05, the trades people were dragged into that - those hours and the trade didn't want to have anything to do with it, they wanted their own flexibility. But unfortunately the way circumstances were, they weren't consulted, they were just told: you will start at 6.05. The unions got together and said: look, we need to fix this problem up, and that is one of the reasons why this flow chart has come about. So if there is any unions that go forward and rubber stamp, they have to bear in mind that all the other unions need to know of those changes because if it does effect their members they need to have an input and that is why that flow chart was put in place, to safeguard all the other unions in regards to only one union rubber stamping something. I hope I made my point clear?
PN728
I will just refer you to the minutes of the site committee meeting held on Wednesday 29 March 2000?---29 March 2000, yes I have those.
PN729
Do you have that, Commissioner?
PN730
THE COMMISSIONER: Thank you.
PN731
MS SMITH: Under paragraph 3.1 "business arising" over the page, it says: Jeff Jamieson refuted your allegation and explaining that following the last site committee meeting on 25 February, the plant 4 press shop EB plant committee met to discuss the issue at which were the shop stewards were invited to attend. So the site committee meeting after 25 February, if you look - do you have an index to the Book of Documents at the front?---No, I haven't.
**** JOHN CAMILLO RXN MS SMITH
PN732
Okay, well, I put that with the - it would be the next minutes of the site committee with 29 March 2000. So if I could get you to turn to the minutes of the site committee on 29 March 2000?---29 March?
PN733
Sorry, just - the plant committee. So he is referring to a plant committee meeting after 25 February, so that would be next minutes of the plant committee meeting was 12 April, 2000?---Yes, I have those before, 12 April 2000.
PN734
Okay, can you show the Commission anywhere Mr Jamieson refuting this allegation and any mention of a meeting where officials and shop stewards were invited to attend in their minutes?---The what? The 29 March minutes are you saying or the - - -
PN735
It would be the plant committee after - 12 April minutes for the plant committee?---Okay. No, I don't see anything of Jamieson here refuting notes, no.
PN736
Okay, was Jeff Jamieson present at that meeting?---The EBA plant 4 minutes? No, I don't see his name there or an apology or a guest.
PN737
So that is clearly inconsistent with what he is saying - what the minutes say he says on the site committee on 29 March 2000, isn't it?---That is right.
PN738
THE COMMISSIONER: Mr Dowd?
PN739
MR DOWD: I just rise to protest that observation. You see, you can't say, with respect, that the fact that Mr Jamieson does not say anything at a meeting on 12 April 2000 is inconsistent with what he said at a meeting earlier than then. You see, my friend is talking about a meeting of 29 March, of course at 29 March he won't be talking about what happened at a meeting of 12 April, it hasn't come yet.
**** JOHN CAMILLO RXN MS SMITH
PN740
THE COMMISSIONER: Ms Smith?
PN741
MS SMITH: I'm just trying to - it does not make sense to me, Commissioner. It says on the - I've got page numbers. Has your book got page numbers?
PN742
THE COMMISSIONER: No.
PN743
MS SMITH: No. The minutes of the site committee meeting, Wednesday 29 March 2000, says Jeff Jamieson refuted this allegation explaining that following the last site committee meeting on 25 February, 2000, the plant 4 press shop, EB plant committee met. So the next time the plant committee met following 25 February in accordance - into the chronological documents, is the EBA plant 4 minutes on 12 April 2000. And I was just curious how - and Mr Jamieson does not even appear to be present. So I just wanted to bring to the Commission's attention that either the minutes are inaccurate or either Mr Jamieson's recollection is wrong on this point.
PN744
This was the point that Mr Camillo was taking issue that the company had addressed the workers without inviting union officials to attend and Mr Jamieson then refuted this. That merely goes to the weight of Mr Jamieson's evidence on this point, Commissioner.
PN745
THE COMMISSIONER: Yes.
PN746
MS SMITH: Perhaps my learned friend could address that further. I have no further questions of Mr Camillo, Commissioner, and I ask that he be released and his statement - that has already been tendered I think, Commissioner?
PN747
THE COMMISSIONER: Yes, thank you. Yes, you can step down, thank you Mr Camillo.
**** JOHN CAMILLO RXN MS SMITH
PN748
PN749
MS SMITH: That is our case, Commissioner.
PN750
THE COMMISSIONER: Yes, thank you. Mr Dowd, how do you wish to proceed now?
PN751
MR DOWD: Our position is that I could open very briefly and really my opening would just be to follow on from the observations and comments you make in the decision you have already issued. And then to call Mr Hutchins to give evidence, I will follow the same process in doing that as my friend. And it may be she will complete her cross-examination by lunch time, I don't know.
PN752
MS SMITH: I only have a very short cross-examination of Mr Hutchins, Commissioner.
PN753
THE COMMISSIONER: Yes, well, if that is the case then we may as well proceed.
PN754
MR DOWD: I am happy to have a pretty fair crack at it.
PN755
THE COMMISSIONER: Well, if we could go off transcript for a moment.
OFF THE RECORD
RESUMED
THE COMMISSIONER: Yes.
PN756
MR DOWD: Just to open briefly, I really follow on from the comments that you made, Commissioner, from paragraphs 54 to 58 of the decision you have already issued. Now, what the company says is that the minutes and the evidence we have heard so far and the evidence that you will receive in the statement form from Mr Hutchins, all demonstrates that all of the parties who were parties to the certified agreement had entered into a process to by agreement, to introduce some flexibility and they had done that using the various committees, the very committees that clause 29 of the agreement envisaged and they had done that also on a basis where there would be no penalty payable.
PN757
We say that if that wasn't an expressed term of this agreement, that is that nobody pay a penalty, that the company not pay any penalty, I beg your pardon, under clause 16 of the award. It certainly wasn't implied term, and we say that there is considerable evidence of the fact that it was an implied term. You will note in the union's outline of submissions for this matter contained in their book of documents that they say in their last paragraph numbered 14, referring to the claim by Willis:
PN758
The particulars of claim do not claim the penalty rates for the 3 month period in which the union and the respondent agreed to conduct the trial.
PN759
And that is, we say because there was an implied agreement that no penalty rates would apply. What we then say is, having correctly and successfully introduced this process pursuant to clause 29 of the agreement. It is clear that prior to the end of the trial period, that is prior to the agreed date of the conclusion of the trial period, which is 4 December, problems had arisen and in fact witnesses have talked about these problems and let us not be coy, the problem is that quite clearly, for what ever reason, the union has properly formed a view that there may be a breach of the award.
PN760
It is equally clear that even if that view were formed prior to the implementation of this trial, that is as early as the August meeting, which is recorded in the site committee meeting minutes for August, even if that view were formed then and articulated at that meeting, as Mr Gee suggests in his letter of 10 February 2000. There was agreement to implement the trial. There was agreement to implement the trial and no claim for any penalty rates to be paid during the trial. The problem was further fleshed out with Mr Gee getting legal opinion, or Mr Camillo - Mr Gee says he obtained the opinion and gave it to Mr Camillo.
PN761
Mr Camillo says he got it. No argument with any of that. All that did was crystallise the problem during the trial period and at the end of the day on or about 1 December, it would appear from Mr Camillo's evidence that what happened was that his members wanted him, his union, to find out what the true position was at law. Now, whether that was, you know, by going to the AIRC or by getting a legal opinion, we say is irrelevant. We say that certainly there can be no doubt that within the trial period the problem has arisen.
PN762
The problem having arisen at clause 16 of the agreement, the dispute resolution clause, requires that there be status quo. The minutes talk about there being status quo in December and ongoing and what we say is that when the matter came before Huxter C and indeed as you commented in your decision that - just let me find it - status quo was the new system.
PN763
We say it is implicit in that that that means that in exactly the same way as there is an agreement that there be no claim for the trial period, when the parties are controlled by a mandated process that they have agreed to in an industrial instrument to implement status quo, that is what they should do. And that it would be quite wrong, an entirely incorrect operation of the agreement which set up this process, to then say, "The company is exposed after the agreed trial to have to pay any penalty rate".
PN764
Now, the evidence of Mr Hutchins, as I've already said to you, Commissioner, really is historical in nature and it does little more than again reinforce. One might wonder why I'm bothering to do this frankly but it reinforces the introduction of the process and the appropriateness of the process. It also of course gives my friend the opportunity to ask Mr Hutchins some questions which the company thinks is a fair thing. So without further ado, I would call Mr Ian Hutchins, Commissioner.
PN765
MR DOWD: Now, could Mr Hutchins just be shown a copy of this statement and could I be so bold as to ask that it just be passed under your eye, Commissioner, so that you can satisfy yourself it is a copy of the document that we have already filed in this court?
PN766
Now, Mr Hutchins, do you recognise that document?---Yes, I do.
PN767
Have you read that document recently?---Yes, I have.
PN768
Are you able to say whether that document to the best of your recollection is accurate?---Yes, it is.
PN769
Do you wish to adopt that document as your evidence to this Commission?---Yes, I do.
PN770
So I ask that the statement of Mr Hutchins be tendered, Commissioner.
PN771
PN772
MR DOWD: There is just one matter, Mr Hutchins, I just want to take you to quickly. Could I just ask your associate, is there still a bundle of those minutes of meeting documents that had been shown to the other witnesses there? Good, thank you.
PN773
Mr Hutchins, could you just quickly look through those documents. We are looking for an email dated 1 December - sorry, 2 December 1999, sent apparently from you or by you to Mr Jamieson and Mr Holland?---Yes, I have it.
**** IAN ROBERT HUTCHINS XN MR DOWD
PN774
And do you have it, Commissioner.
PN775
THE COMMISSIONER: What date was it?
PN776
MR DOWD: The email of 2 December 1999.
PN777
THE COMMISSIONER: Yes, I have it.
PN778
MR DOWD: Mr Hutchins, if I could just ask you to have a look at paragraph 36 of your statement?---Okay.
PN779
Does the email of 2 December 1999, which you also have, relate to the meeting referred to in paragraph 36, that is the meeting of 1 December 1999?---Yes, it does.
PN780
I have no further questions of this witness thank you, Commissioner.
PN781
PN782
MS SMITH: Mr Hutchins, at paragraph 36 of your statement you say that prior to the end of the three month trial period the union raised some concerns as to the legality of the trial arrangement. These concerns were put to the company by John Gee, weren't they?---I'm not sure who put those concerns.
PN783
It is your evidence that the union raised some questions. How do you know the union raised some questions?---I had feedback from a number of sources, mainly from the site committee. The site committees are not always attended by myself.
**** IAN ROBERT HUTCHINS XXN MS SMITH
PN784
So do you have personal knowledge that the union raised concerns to the questions of the legality of the arrangement?---The first-hand knowledge I have is the meeting referred to here on 1 December. The other knowledge, from my recollection, is third party.
PN785
Do you recollect that John Gee said that the company should pay the workers time and one half after they had worked six hours without an unpaid break for a meal?---I cannot recall John Gee saying that.
PN786
Can you recall anyone saying that?---Yes, John Camillo.
PN787
When do you recall - did he say it to you or - - -?---No, this is while he was addressing the plant at three separate meetings on 1 December.
PN788
Okay. So that was near the end of the trial period?---That is correct.
PN789
So there is no evidence to suggest that the union or the workers agreed to forgo penalty payments during the period of the three month trial, is there?---I have no evidence that they forgave any rights other than agreeing to the trial.
PN790
So there was no implied agreement that workers would forgo their award entitlements for penalty payments under the award, was there?---I have no evidence of that.
PN791
The company has no evidence of that either, do they?---I'm not aware.
PN792
I have none in the documents before me. At paragraph 39 of your statement you say that a change was introduced where the unpaid break at the end of the shift was swapped with the second relief break. This change meant that the workers now got a break for a meal where they didn't have to obtain pass-outs should they wish to leave the plant, didn't it?---That's correct.
**** IAN ROBERT HUTCHINS XXN MS SMITH
PN793
Prior to this they had to get pass-outs if they wanted to go out during the second relief break or the paid 20 minute second relief break at which they were allowed to eat?---That's correct.
PN794
Do you know when this change commenced, when the workers were allowed to leave without a pass-out?---I'm not sure of the exact date. My recollection is this was when we changed to the conditions as we operate now currently with the unpaid relief break.
PN795
21 July 2000, does that sound familiar?---It would be approximately about that.
PN796
I have no further questions for the witness, Commissioner.
PN797
THE COMMISSIONER: Mr Dowd.
PN798
MR DOWD: I have no re-examination, thank you, and subject to any questions you have I would ask for the witness to be released.
PN799
PN800
THE COMMISSIONER: I take it there is no further evidence from either side in relation to this.
PN801
MR DOWD: No, thank you.
PN802
THE COMMISSIONER: It might be a convenient time then and we will recommence at 2.15 for closing submissions.
PN803
MR DOWD: Thank you.
LUNCHEON ADJOURNMENT [12.31pm]
RESUMED [2.21pm]
PN804
MS SMITH: Commissioner, the large amount of evidence before you in many areas is not contradictory. In fact, the evidence of Ian Hutchins does not contradict the union's case. The evidence shows that prior to commencing new working hours for a three month trial period, that consultation occurred at the enterprise bargaining site committee in relation to the proposed changes of hours.
PN805
Despite my learned friend's assertion from the bar table, there is no evidence that shows that the issue of penalty rates pursuant to clause 16 of the award was addressed by the parties prior to the commencement of the three month trial period. The company has provided nothing to show that the workers agreed to forgo any penalty payments due to them under the award.
PN806
The evidence of John Gee, the minutes of the consultative meetings and the evidence of Ian Hutchins shows that the union requested that penalty rates be made to the press shop workers of plant 4 prior to the end of the three month trial period. The evidence also shows that the three month trial period continued after three months had passed and by that time a dispute had arisen and clause 16 of the enterprise agreement said that the status quo shall prevail.
PN807
It is important that you note that the status quo - there was no implied agreement for the union or its members to forgo penalty payments as my friend asserted from the bar table. The evidence has shown that the workers in the press shop of plant 4 only received two 20 minute pay breaks before they went home. I refer the Commission to clause 21(a) of the award which is headed, "Relief time". At the bottom of subsection (a)(i) it says:
PN808
The amount of such relief shall be modified accordingly for a shift other than a regular eight hour shift. Relief will be arranged before and after the lunch break ...(reads)... be in equal periods.
PN809
Although the workers in the press shop of plant 4 were allowed to eat during the relief breaks they were not allowed to leave the plant without first obtaining a pass-out and having their pay docked for the time in which they were absent. The workers were unable to run personal errands outside of the plant during their working day. This is confirmed by the evidence of Ian Hutchins from the company. In effect, what the workers were receiving were two crib breaks. The workers had no time during the day to do as they wished and they were always under the control of the respondent during these breaks.
PN810
The evidence has also shown that John Camillo wrote to the respondent in relation to inaccurate minutes of the site and plant committee meetings. This letter stated that he was dissatisfied with the content of the minutes and had been for at least the last six months. It is clear from the evidence that from around 21 July 2000 the affected workers were given an unpaid meal break, a time when they could leave the plant to run personal errands, time to spend as they wished. This open was open to the respondent as soon as the issue of penalty rates was brought to their attention by the union. However, they took some seven months to adopt this to resolve the dispute.
PN811
The evidence shows that clause 16 of the award deals with pay rates whereas clause 29 of the enterprise agreement deals with flexibility of hours. Clause 29 of the enterprise agreement is not inconsistent with the award, therefore, the enterprise agreement does not prevail over the award on this point. It could not have been the intention of the parties to the enterprise agreement that clause 29 is interpreted so broadly so as to allow the site, plant or other specific committees to be in the position to change the minimum rates of pay and penalty payments or any other matters prescribed in the award. If this was the intention of the parties this intention would have had to be clearly spelled out in the enterprise agreement. The words in the enterprise agreement at clause 29 clearly do not extent to the variation of rates of pay prescribed in the award.
PN812
It is also clear on the evidence that there was no application made to the Australian Industrial Relations Commission to vary the award. If the company's assertion is correct that the union agreed to forgo penalty payments during the three month trial, this could have been done by consent variation to the award and that would have been the appropriate method to take. But it is clear that no such application was ever made to the Commission.
PN813
Commissioner, I will now briefly address you on the authorities on which this claim relies. The first I would speak of is Walkley v Dairy Vale Cooperative Limited, the preliminary issues. This was an agreement between an employer and a union. The agreement was illegal at the time it was made but it continued after the enactment of the award provisions. Section 51 as it was, the equity and good conscience provision and the substantial merit of the case were addressed in this matter.
PN814
THE COMMISSIONER: Do you have a print number for that, or a reference?
PN815
MS SMITH: Yes, it would be on our list of documents.
PN816
THE COMMISSIONER: I beg your pardon.
PN817
MS SMITH: That is - - -
PN818
THE COMMISSIONER: Yes, thank you.
PN819
MS SMITH: - - - 1972, 39 South Australian Industrial Reports at 327, Commissioner.
PN820
THE COMMISSIONER: Thank you.
PN821
MS SMITH: The final conclusion of the court was based on the finding that all parties had at all material times proceeded on the basis that there had been a valid and continuing arrangement. Secondly, that serious prejudice to the company would result if the proceedings were to proceed and finally, that the original consensus had continued over a number of years.
PN822
Commissioner, this can be distinguished from the case before you where at no time was there a consensus between the parties in relation to the application of penalty payments. Further, the consensus for the three month trial agreed between the parties is not the period that penalty payments are being claimed for. You will note from the union's application that they have precluded the three month trial period from their claim.
PN823
It is our submission, Commissioner, that employees of the company should not be prejudiced by allowing the company to avoid penalty provisions contained in the award. Finally, Commissioner, the time period in question in the matter before you is around six to seven months and not several years. The union has, as the Commission is aware, disputed the non-payment of penalty payments from at least before the trial period concluded.
PN824
The next authority I wish to refer you to, Commissioner, is N.J. & T.M. McMullen Pty Ltd trading as B&E Plumbing Services v Chakiti No. 2. The citation for that - I don't have that currently. I can find that and give it to you later.
PN825
THE COMMISSIONER: Yes, if you would, please.
PN826
MS SMITH: It is a decision of the Full Court of the Industrial Relations Court comprising of Cawthorne J, McCusker J and Parsons J. This too was an application under section 14 for under payment of wages and they looked at the terms of their employment contract. There was discussion of the intention of the legislative provisions and I quote:
PN827
The senior judge did not find it necessary to deal with section 154 but nevertheless we would conclude that even though the existence of the equity ...(reads)... in light of a general power of conscience.
PN828
This is cited in Walkley v Dairy Vale Cooperative, the preliminary issues at page 358. At page 7 in the judgment, JJ Cawthorne and Parsons say and I quote:
PN829
The remedy provided by section 105 is, as we have already said, centred on the dismissal and whether it was harsh, unjust or unreasonable whereas the section 14 claim centres on whether the employer's actions were -
PN830
and I stress -
PN831
unlawful in the sense of representing a breach of the Act, an award enterprise agreement or contract of employment, giving rise to an entitlement to a specific sum.
PN832
The next authority I refer you to you, Commissioner, is Fricker and Mitchell v Conroy Smallgoods Proprietary Limited. Again, I don't have the citation but I will be happy to provide that. This decision was in relation to an agreement made between an employer and employees. The agreement was that the employees would not be asked to do clean up work and they would be permitted to leave after the labouring and dry clean up work had been completed, but would not be paid for the balance of short days. On a literal reading of the award, the applicants were entitled to be paid for a full day of 7.6 hours, even if they worked a lesser period.
PN833
The applicant, Fricker, was held to be bound by the agreement and was not to be paid for the short days, and his application was dismissed whereas the Industrial Relations Court held that the agreement came into operation before Mitchell commenced employment and, therefore, Mitchell could not be bound by this agreement. The distinction here, Commissioner, is there is no question that the employees of Holden Limited were willing to present themselves for a full day's work. The Holden employees did not refuse to take a meal break, whereas Fricker and Mitchell had refused to do a wet clean up, but rather, the Holden employees wanted a meal break - a meal break where their time was their own to do as they wished.
PN834
It was Holden Limited that refused to give them this meal break. Then not only were the press shop employees in part 4 denied a meal break. They were denied penalty payments due to not having a meal break by the expiry of 6 hours. The reason why Mitchell did not success in this application was because an employee is expected to be available for a full days' work, and the facts of the case were otherwise. The matter before you, Commissioner, is very, very different on its facts. I will now refer you to the decision of Hutton and Hutton v Ken and Sally Burgess, trading as PAs Family Food Place.
PN835
Again, I don't have the citation at this present time. This was a claim for wages by sisters aged between 12 and 14 years. The effective award provisions had prescribed wages for workers under 17 years of age. There was a consideration of the application of the equity in good conscience provisions in this case. The application was allowed as the applicants were employees and the award was applicable to work which they performed. The Industrial Relations Court of South Australia held that employment of such juveniles is a matter of a commercial decision for an employer who, regardless of age and effectiveness of the employee, is required to pay the award prescribed minimum wage.
PN836
It did not matter that the applicants had accepted to work for less than the award conditions. At paragraph 29 of the decision, the Honourable Industrial Magistrate Hardy states and I quote:
PN837
The only factor which troubles me is that the arrangement was one that all parties happily accepted, but it has never been and cannot be a determinative factor in proceedings such as this that the parties in the ignorance of the applicable award conditions made their own, albeit on mutually acceptable terms. They are caught by the award, and must observe it even if, with the full knowledge of the award, they might never have entered into the contract of employment in the first place.
PN838
Commissioner, in the matter before you, no claim is being made for penalty payments for the period in which the employees accepted and agreed to work a 3 month trial period. The period being claimed for is where there was no agreement in place, but the respondent continued to expect its employees to work the same hours that had been adopted during the 3 month trial period. This would be in conformity with clause 16, the dispute resolution clause of the enterprise agreement. The next matter is H.G. Collet Proprietary Limited v Allsop and Allsop.
PN839
This is at (1982) 49 SAIR 309 part 1. This decision refers to Walkley v Dairy Vale Cooperative Limited, the preliminary issues, saying that it would be contrary to equity, good conscience and the substantial merits of the case to allow the claims. The applicants in this case each knew of the precise situation from their father, and regardless of her personal preferences, accepted it and at all times, worked in conformity with it. Whereas in the matter before you, Commissioner, at no time did the affected workers agree to forgo their entitlements under the award, and I stress that the company has provided no evidence that this was the case, either in documentary or in witness evidence.
PN840
At page 316 of the judgment, Olsen J states and I quote:
PN841
Indeed, the observance by the claimants of the basis of employment negotiated before them by their father was the clearest possible indication to the appellant of confirmation of what had been arranged by him. For them, some 15 or 16 months later, to suggest that they should be paid for full time work when they only ever presented for 3 hours per day would appear to me, taken in isolation, to constitute very clear acts of bad faith.
PN842
Commissioner, this case could be compared to the case before you if the union was claiming penalty rates for the period during the 3 month trial where the employees of Plant 4 press shop agreed to participate in the trial. However, there was no agreement by the union to extend the trial beyond 3 months, nor to forgo penalty payments or other award entitlements, either during the 3 month trial or whilst these new hours of work continued. The evidence of the minutes of the Enterprise Bargaining Site Committee Meetings before you show that the union has always requested workers be paid penalty rates shortly before the expiry of the 3 month trial period.
PN843
This is also confirmed by the evidence of the company and the minutes. The equity and good conscience provision requires all cases to run the gauntlet of the test as to whether a proposed decision accords with the equity, good conscience, and the substantial merits of the case. At page 328, Olsen J states and I quote:
PN844
The test is best applied by first asking what is the strict legal situation and secondly, posing the subsequent question as to whether, on the totality of the evidence, an application of the concepts of equity, good conscience and the substantial merits of the case demand some variation of or departure from an application of strict legal principles. In some cases, equity will demand an adherence to the strictly legal position established by the evidence. In other instances, equity, good conscience and the substantial merits of the case will compel the Court to a different final conclusion.
PN845
Commissioner, the evidence in the case before you has shown that there was an agreement to trial new hours for a period of 3 months, and that there was no agreement by the workers or the union to forgo award entitlements. The evidence has also shown that the workers are not claiming penalty payments during the 3 month period of the agreed trial. The evidence also shows that the union requested that the workers be paid penalty payments shortly before the expiry of the 3 month trial. It is our submissions that it is not inequitable for the workers to claim their minimum entitlements under the award in these circumstances.
PN846
The evidence clearly shows that the affected workers changed from one paid 20 minute relief break, an unpaid lunch or meal break, and a further paid 20 relief break to two paid breaks, like the definition of crib time in the award, which appears at clause 20(f). They took their meal break at the end of their shift. In effect, the meal break was not given until the expiry of the shift. This is confirmed by the evidence from the company of Ian Hutchins.
PN847
It is also clear that clause 16 of the award provides for penalty payments when a worker has worked for six hours without a meal break or a break for a meal. The next authority I will refer to is Dernford v Alan Taylor and Company Limited (1990) 34 Industrial Relations 423. At page 428 of this decision Wilcox J of the Federal Court of Australia states and I quote:
PN848
I find that on many shifts men have the opportunity to sit down and eat an interrupted meal. Indeed, it was common for the men to have lengthy periods of time during which time they had no pressing duties when they were able to eat a leisurely meal and possibly read a newspaper or a book. There seems to have been a considerable variation in the extent of the work required to be done from one shift to another. However, it is equally clear that there was never a defined break during which the attendants were -
PN849
and I stress -
PN850
free to do as they wished. Although they always had some opportunity to eat lunch often at a leisurely pace they never have a lunch -
PN851
and I quote -
PN852
lunch break. A period of time during which they were free to leave the boiler room and chat to other workers or either leave the premises altogether on business of their own exemplifying the principle they also serve who only stand and wait. They were always on duty.
PN853
Mr Willis' evidence states that if a worker wished to go to their car to retrieve something they were required to receive a pass out and have their pay docked for the period which they were absent. The workers during the commencement of the trial up until around 21 July 2000 were not free to use their time as their own. They were allowed to eat. They weren't expected to work although on occasions in consistent with the evidence from Mr Willis in an emergency they could be called to work and have their break at a later time.
PN854
The next authority I refer to is Butler Kenyon and Ridge Knight - Regnia v Lerwin Nursing Home (1998) SAIRC 48 dated 2 October 1998. This again was an underpayment of wages matter and there was a claim made for a meal allowance. The applicable award was the Health Services Employees Award. The matter to be determined was whether an employee was entitled to a meal allowance in respect of an uninterrupted shift - of an interrupted shift, sorry, Commissioner, and whether employees were directed not to leave their premises.
PN855
This is a case were employees who were working night shift were directed not to leave the premises during their meal breaks. The Honourable Industrial Magistrate Hardy allowed the application and held that the fact that the staff were not interested in leaving the premises anyway was of no significance. He stated at page 7 in the second paragraph and I quote:
PN856
That factor is not a condition for the application of clause 6. I think that it is sufficient that there was a direction and it does not matter whether its application suited or met with the approval of the staff. Accordingly, I do not regard evidence to that effect or to the effect that there was little to do in Murray Bridge or there were few food outlets to be of any relevance.
PN857
The next decision - or authority I wish to refer the Commission to is Russell v ACN 008 268 415 Proprietary Limited formerly Adelaide Business Communications Proprietary Limited (2001) SAIRC 22 dated 19 September 2001. This was an underpayment of wages claim in relation to unpaid overtime. The applicant was employed as an operator by the respondent who were directors and managers of a paging and communication centre.
PN858
There was an agreement made between the employer and the applicant were the employee agreed to work overtime for the ordinary rate of pay and agreed that she would not pay overtime rates. The issue was whether the applicant was entitled to claim overtime after having previously renounced her right to this entitlement. The agreement for the applicant to work overtime at ordinary time rates was held to be consensual. It was held by the late Honourable Industrial Magistrate Cunningham that an enterprise agreement prevails over a contract of employment to the extent that the agreement is inconsistent with the contract.
PN859
However, the terms of the contract of employment will prevail over an award or enterprise agreement if the terms of the contract are more beneficial to the employee than the industrial instrument. He also held that an enterprise agreement operates to exclude the application of an award only to the extent of inconsistency with the award. It is our submission that the flexibility clause in the enterprise agreement, namely clause 29, in the matter before you, Commissioner, is not inconsistent with the penalty provisions of the award.
PN860
The applicable enterprise agreement has no wage rates or penalty provisions included in this and it is our submission that the flexibility clause of the enterprise agreement does not extend to allow the plant or site committees or any other specific committee to alter the award conditions without making an application to the Commission for a variation of the said award. The evidence is clear before - is clear that no such application to vary the award was made.
PN861
In this decision the Honourable Industrial Magistrate considers the authorities on the meaning and interpretation of the equity and good conscience provisions in the Act. Notably, in Walkley and Dairy Vale Cooperative Limited and Thiele and Dairy Vale Cooperative Limited and H.D. Collet and Allsop and Allsop. He states at paragraph 31:
PN862
The effect of these decisions is that the provision does not create rights and liabilities that otherwise are unrecognised in the law. Still less do they provide a basis for denying a claim that is directly contrary to the provisions of the Act and the law generally. The provisions seems to me to be summarised as it relates to the present circumstances by a number of general propositions initially laid down by Olsen J in Walkley's case and repeated by him with some amendment in Collet's case at page 323 to 324.
PN863
He then cites - and I won't repeat because they are quite lengthy, paragraphs 1, 2 and 5 in Collet's case at page 323 to 324. At paragraph 33 of the decision the Honourable Industrial Magistrate states:
PN864
This also seems consistent with what McCusker J said of the equity and good conscience provision in McLaren v Corporation of the City of Adelaide. That provision cannot be used directly to negate a clear and fundamental provision of the same Act which confers these powers nor to undermine a basic purpose of that Act.
PN865
Further, at paragraph 34 he states:
PN866
It is clear from the provisions of the Act overall that the procedures in section 14 and its predecessors ...(reads)... performance of the work in those extended and necessarily overtime shifts upon which she was rostered by the respondent.
PN867
He continues at paragraph 35 and he says:
PN868
I can think of no result more inequitable than to dismiss the applicant's claim leaving the respondent in full position of the benefits of her work even though those benefits were received by it in express disregard of the enterprise agreement it had negotiated with its work-force and asked the Industrial Commission to approve.
PN869
Commissioner, it is our submission that in the circumstances of the matter before you especially the fact that the workers are not seeking to be paid penalty payments for the period of the agreed three month trial period that the equity and good conscience provisions would have no effect or application in this case especially when the evidence has shown that the union has requested that penalty payments be made to the workers in the press shop at plant 4 since prior to the ending of the three month trial period.
PN870
The final decision, Commissioner, which I wish to refer you to is the - and the most recent decision is the Public Services Association of South Australia Incorporated v The Commissioner for Public Employment, the Department for Correctional Services (2002) SAIRC 61 dated 23 September 2002.
PN871
Commissioner, as I said, this is the most recent decision upon which we rely. It is a decision by his Honour McCusker J. The case involved correctional officers at Yatala Labour Prison who continued to work throughout their working hours without a meal break. These workers were granted a crib break in lieu of a meal break. In our submissions, this is the same as the matter before you, Commissioner. Also as in the present case these workers had an entitlement to a meal break in their award.
PN872
His Honour refers to Duncans Holdings Limited v Cross and Ors. That is a 1997 decision, volume 76, Industrial Reports at page 261 where Wilson J said, in the Duncans Holdings decision at page 263 to 264, and I quote:
PN873
The difference between the two breaks extends beyond duration. A lunch break is a period of time during which employees are free not only to eat a meal but to leave ...(reads)... remain in the immediate workplace and available in any case of an emergency.
PN874
That is exactly the same facts that we have before you in this matter, Commissioner.
PN875
His Honour then referred to the Industrial Information Digest which described the standard of meal breaks and came to the following conclusions as to the award-maker's intent and they are as follows:
PN876
An unpaid meal break is to be provided during the worker's daily hours worked on each and every day.
PN877
In the case before you during the relevant time, Commissioner, the workers received this at the end of their shift after completing eight hours work. The next proposition he states is:
PN878
The meal break is to be free from any duties and any employment control.
PN879
As I said, Commissioner, the evidence shows that in most instances the employees were free from any duties with the exception of an emergency but they were definitely not free from the employment control. They were not permitted to leave the plant without first obtaining a pass-out and having their pay docked. They weren't free to go out and run personal errands or to purchase food from outside the plant.
PN880
The next proposition he states is:
PN881
It is to be taken after five hours -
PN882
and I should just put here, Commissioner, or six hours as in the matter before you -
PN883
- have elapsed from the recognised starting time.
PN884
He further adds:
PN885
The award-maker has recognised the requirement of flexibility and has added two elements ...(reads)... because of the request by or on behalf of the employee.
PN886
In the matter before you, Commissioner, the press shop workers in plant 4 worked eight hours before they were granted a meal break when the workers were free to do as they wished and were not under the effective control of the employer. These workers did not receive penalty payments.
PN887
It is also clear on the evidence that these workers did not request to continue working without a meal break beyond 4 December 1999 when the three month trial period ended. It is also clear on the evidence, Commissioner, that from 5 December 1999 until 20 July 2000, the press shop workers in plant 4 worked eight hours before they were granted a meal break and they did not receive penalty payments in accordance with clause 16 of the award.
PN888
Further in this decisions, at paragraph 22, his Honour states that An employee cannot agree to wholly dispense with a meal break altogether. At paragraph 20 he states that the flexibility provisions in the awards are, and I quote:
PN889
...a far cry from an intent to do away with meal breaks.
PN890
Finally, Commissioner, at paragraph 27 his Honour rejects the respondent's arguments that the provisions in section 154 of the Act has a role to play in the interpretive jurisdiction provided in section 11 of the Act. But the question he is being asked is what is the true interpretation of what section 11 of the Act is concerned with. His Honour held that there is no role for the equity and good conscience provision in the interpretation of an award or an enterprise agreement.
PN891
It is our submission, Commissioner, that the equity and good conscience provision has no role in determining the questions which are before you, which are namely - the first question is: what constitutes a meal break or a break for a meal? The second question to be determined is: does clause 29 of the enterprise agreement permit the respondent to alter the award rates of pay paid to its employees through the site committee, plant committee or any other committee without an application to vary the applicable award? The final question is: is the respondent in breach of clause 16 of the award.
PN892
Just finally, to close, my learned friend asserted from the bench that there was an agreement between Holden and the union that new hours would be tried and that penalty rates would be forgone. There is no evidence to support this but even if there was, Commissioner, it is not for the union or the employer or for them between themselves to vary the award without making the application in the Commission. That is the governing industrial instrument along with the enterprise agreement and if there is a consent to make the change then an application to vary the industrial instrument should be made. Those are our submissions, Commissioner. Thank you.
PN893
THE COMMISSIONER: Thank you, Ms Smith. Yes, Mr Dowd.
PN894
MR DOWD: Thank you, Commissioner. I will embark, if I may, by commencing to look at paragraphs 45 to 58 of the decision you already issued in this matter and then to tease out the argument that the company puts. Paragraph 45 of your decision of 18 June, you set out the factual circumstances of this unresolved dispute. You find that the dispute concerns the payment for lunch breaks for a five month period in early 2000.
PN895
At paragraph 50 you go to the heart of this dispute by saying, "The matter in dispute between the parties, based on the submissions before the Commission, in your view relates to flexible work patterns contained at clause 29 of the agreement. That has not changed, I say. The union, in its outline of argument" - and I will paraphrase it, but it is contained in the book of documents, S2 - "has confirmed that that is the dispute at paragraph 12." It says that when properly invoked, clause 29 allows the appropriate committees to change work patterns but this flexibility clause does not permit the company to override penalty rates. That is its point at paragraph 12. Why not one might ask I say. Clause 29, in the company's submission, is crystal clear. The parties agree that changes to work patterns will be dealt with by the appropriate plant or site committees or specific committees created for such purposes.
PN896
In addition, I would suggest that the booklet that is H4, the information booklet to all shop stewards and union members re Holden EBA negotiations - this is a booklet from the applicant to its members - makes a similar point. Any matters, it says at page 4, in relation to work patterns. Any matters in relation to work patterns will be dealt with locally through plant or site committees.
PN897
Now, it is trite for me to say that I don't attach the same weight to the contents of the booklet, H4, as I do to the industrial instrument, but equally I point out the harmony between what the instrument in clause 29, the certified agreement, provides and what the union tells shop stewards and union members regarding negotiations. So there is the scene set, I say. Clause 29 is crystal clear and even the book says any matters can be dealt with by appropriate committees.
PN898
There is an abundance of evidence in the minutes that are before you that that is precisely what happened. Now, you have already reached a tentative view, you say, at paragraph 54, that clause 29 relates precisely to the issues in the unresolved dispute which you have defined earlier in this decision at paragraph 45. Now, it would seem logically at least to follow, Commissioner, that if that were your tentative view then you would need to hear some further evidence or some compelling submissions to alter that view. We say, with respect, that there have been no such submissions. All the evidence today, this day, goes to the historical events surrounding the introduction of the change, the emergence of the problems and ultimately the solving of the problems.
PN899
What we have heard is that matters were raised very early on that plant 4 EB committee or site committees didn't come to terms with it terribly quickly and that a problem arose. Now, none of that goes to why a consequence of the introduction of an altered work pattern pursuant to clause 29 of the agreement isn't that that new work pattern and its consequences take precedence over the award.
PN900
What I'm saying is if you introduce a new work pattern in accordance with clause 29 of the agreement through the appropriate committees and a consequence of the introduction of that work pattern happens to be that penalty rates are not being paid and that is accepted during that trial period, then that consequence in exactly the same way as the introduction of the pattern takes precedence over the award, because of section 170LY of the Act, also takes precedence.
PN901
Just pause there for a moment. My friend has mentioned that I raised the matter of an implied term of agreement and that is true, I used that language. But every time the union says, "There wasn't any agreement that we wouldn't be paid during this three month trial", it adds, "and of course we are not making any claim for that time" and often it adds it along the lines of, "We're not making any claim for that time because we agreed to work it." That was one of the comments just made by my friend a little while ago. It is also a case in the matter before the learned industrial magistrate. No claim for that period of time was made.
PN902
That is what I meant when I said "an implied term". If you like an implied agreement - well, I didn't mean it in the legal jargon way, let us just get rid of that. Let us just say look at the facts. You know, here we have a period of three months where no penalty rates are being paid and, yes, a problem arises. Fine. There is no claim back for that period of time. When you look at that and think about the consequence of the implication of the change, hopefully you will grasp what I mean when I say the consequence as well as the altered pattern takes paramountcy over the award because of section 170LY and there's not any debate about the fact that anybody wants pay for the trial period.
PN903
So if the introduction of the change has paramountcy over the award then it must follow that its consequence does unless there's huge argument everywhere that we want our penalty pay. You have already made a correct observation earlier that in part pursuance of clause 16 of the agreement, the dispute resolution clause, you have noted that rather than taking the industrial action the union properly, we say, sat back and sought some legal advice and ultimately brought the matter to the Commission.
PN904
Now, I take comfort in what you say in the last sentence of paragraph 54 of your decision. Where the agreement is silent on the matter it is the scheme of the Act that the award provisions apply. With the greatest of respect, that is so, the parliament has made that clear. But in this case, and this is the bit I rely on, the process regarding flexible work patterns is contained in the agreement and that provision takes precedence over the award. If that provision takes precedence over the award, which it does by statutory force, then the consequences of that provision I say must also take precedence over the award for all of this to make any sense. You see, it does not make any sense otherwise.
PN905
Let us think about this pragmatically. Let us forget equity, good conscience and substantial merits. I will come and talk about those in a minute. Why on earth would these committees have ever come to this agreement, to introduce this pattern and why on earth would the union consistently say there's no claim for penalty rates during that period of time, if indeed it wasn't the fact that the pattern was being introduced to see what benefits could be gained? And it wouldn't have been introduced if penalty rates had to be paid. We know it wouldn't have been introduced if penalty rates had to be paid because if it were otherwise the company would have paid the penalty rates and we wouldn't be here and we would never have been before Huxter C.
PN906
What rather fantastically, in pursuance of the objects and intentions of this Act, ultimately happened of course is that the parties did just what they should have done under clause 29; they set about finally resolving this matter at plant level by coming up with another scheme, another way of dealing with it. Okay? So without wishing to be too simplistic, here is an award, let us try this to see if this is a satisfactory way of changing things. The documents show that came from the shop floor so let us try that. Let us put it in place and at its earliest what we know is that Mr Camillo might have raised some concerns very shortly before the commencement of the trial, indeed, on 22 August 1999, when the trial commenced on 5 September. Now, I intend no disrespect - - -
PN907
THE COMMISSIONER: I beg your pardon, did you say Mr Camillo?
PN908
MR DOWD: Yes.
PN909
THE COMMISSIONER: Or is it Mr Gee?
PN910
MR DOWD: No, I'm referring to letter S3, 10 February 2000, written by Mr Camillo. In particular, under the "For example" heading.
PN911
THE COMMISSIONER: Yes, but Mr Camillo advised the company of those concerns in his letter of 10 February 2000 but it had been Mr Gee, at the meeting of 22 August, who had raised the issues or am I mistaken in that?
PN912
MR DOWD: I think - - -
PN913
THE COMMISSIONER: I thought that was Mr Gee's evidence.
PN914
MR DOWD: With the greatest respect, I think you might be mistaken. I think Mr Gee says that he - I might be wrong. I won't get drawn on that. Perhaps you are right.
PN915
THE COMMISSIONER: Well, nothing greatly hangs on it - - -
PN916
MR DOWD: No, it does not.
PN917
THE COMMISSIONER: - - - but I pride myself on a perfect memory. The transcript will tell, Mr Dowd.
PN918
MR DOWD: I don't, I'm afraid, so I will yield. But the point is the contents of this letter to some extent. Let us put neatly to one side for a moment the minutes of 22 August which have some mention but not detailed mention of some issues that were discussed and let us work off this letter. Firstly - and again he has tried to say a letter written in February 2000 is more likely to be more accurate than any other document or comment made after it.
PN919
What we have got here is a correction to the minutes and Mr Camillo says, "This is what was agreed by all, that either Mr Noack or I do some things" dot point 1. At dot point 2, the plant EB committee addressed the pass-out problem. Dot point 3, that the union seek legal opinion on the removal of the unpaid lunch break. Dot point 4:
PN920
That all other unresolved issues raised by plant floor workers are left with the plant 4 EB committee.
PN921
Now, there is no suggestion on 10 February 2002, that even back on 22 August 1999, there was raised at that point in time a debate that the new company should be paying us penalty rates. What there is, is: let the EB committee address the pass out problem. Let the EB committee address something else and we, the union, will seek legal opinion on the removal of unpaid lunch break. What then happens in a mere matter of days afterwards is, of course, the trial commences.
PN922
So at best what we have here is a relatively contemporaneous historical document saying - and at best for the union I allow - this is what the minutes should have reflected. Well, so what? There is in this a crystallised communication that says: get on with the agreement we have reached, there is no comment contrary to the agreement recorded in the minutes of 22 August by the site committee that the trial will run, and in the meantime we will get a legal opinion on the removal of the unpaid lunch break.
PN923
Read that way too - and it does not strain the language - it makes sense why we find in the next minutes, Mr Gee, mentioning for the first time recorded in minutes that, he is getting a legal opinion, or has got a legal opinion. Now, when we look at it in that context, we then go back and have a look at paragraph 55 of your decision:
PN924
The claim by the union that the change which was made to working patterns breaches the award, fails to recognise the intent of clause 29 of the agreement.
PN925
And that meaning arises from that clause that:
PN926
The appropriate plant or site committee were specific committees created for that purpose, will deal with changes to work patterns.
PN927
Well, I don't know whether the union still seeks to claim that - I don't think it does, that those committees can't deal with changes to patterns. You go on to say:
PN928
In my view, the words and ordinary meaning derived from the flexible working patterns clause in the agreement, encompass precisely the change to shift times or patterns which have occurred. The fact that a primary object of the shift change was to remove shift overlap supports that view.
PN929
Now, we say of course that that is entirely right and, again, I say - I urge upon you that to make sense of it all - sense of the fact that there is no claim for penalty rates during the trial period. Sense of the fact, when we look historically at that letter, S3, that as early as August, all we are being told is that we are getting an opinion and that that is what is required - and I don't mean that in any you know derogatory sense. It is a perfectly sensible thing to do.
PN930
It makes sense of the fact that the consequence of the change, that is, the alteration to the penalty rate, should also have paramountcy because it is a direct affect of the application of clause 29 of the agreement. Now, I will just see how to launch into this. Up until some time in about January or February 2000, there is actually not any suggestion in the evidence that I have found that the company should have been paying penalty rates. So prior to that period there is no direct suggestion - well, there is the fact that the meeting of 1 December, if the email from Mr Hutchins is accurate, indicates that there is an issue about penalty rates, and then that becomes more articulated in around January and February 2000.
PN931
You might recall that Mr Camillo and I had a discussion about paragraph 20 of his evidence, which is contained in the book. Sorry, I think I'm wrong. Paragraph - it is paragraph 15:
PN932
Legal opinion was received by the AMWU and was discussed at 31 January 2000 site committee meeting. The AMWU asserted that the company was in breach of the award in relation to the non-provision of a meal break.
PN933
Now, that is consistent with what seems to have been coming from the meeting of 1 December, when Mr Camillo addressed the members. So as at 1 December, we have a problem evolving and it is well and truly noted and by 31 January, we are now getting clear indications of what the problem is. My note of Mr Camillo's evidence was that when we were discussing this meeting, 31 January 2000, and also the minutes of the site committee for 31 January 2000, and just briefly that contains a record that Mr Camillo started that: he had received legal opinion regarding the taking of the two paid breaks, and unpaid meal break.
PN934
Mr Holland suggested that: this legal opinion be shared and reiterated that in his opinion the changes to the working hours were within the EB guidelines. Peter Owen suggested that with some fine tuning a proposal could meet the award requirements and suggested further discussion take place. It was generally agreed that the vast majority of employees in plant 4 press supported the changes and a resolution needed to be found. A meeting was scheduled for February 1.
PN935
Now, my note is that when we were discussing - Mr Camillo and I were discussing paragraph 15 of his statement and the site committee meeting minutes was that he said: the company was well aware that the union had a problem with the unpaid break. What I say about that is, it was between the period of late 2000, and certainly by this time of 31 January - sorry, late 1999, as the minutes record - and certainly by the time of 31 January 2000, that not only was the company aware that the union had a problem - an interesting use of words from Mr Camillo today - but the union's problem became the problem of the company too, so the parties had a problem. They definitely had a problem.
PN936
It is the emergence of that problem that of course triggers the clause 16 dispute resolution procedure. What we say - I should point out that - before I say that - that in paragraph 3.1 of the site committee meeting of 25 February 2000, at this stage, Mr Camillo is still reiterating that:
PN937
All the parties must abide by the EBA process.
PN938
Now, we say that that was done because the EBA process required the introduction of - well, the maintenance of status quo, and if you go back through the minutes and you find that, for instance, the EBA plant 4 minute, 24 November:
PN939
Mr Hutchins was to discuss with Mr Camillo the 8-hour shift review date, 6 December 1999.
PN940
And then you find at the next set of EBA plant 4 minutes, Wednesday 8 December, we have got:
PN941
Status quo to remain until management and union resolve outstanding issues.
PN942
That is just after the end of the trial and so on, so we have the maintenance of status quo throughout, once the problem has arisen. Now, we say really then that we had no choice but to maintain the status quo while the problem was being resolved, and in fact you will recall that I made mention to you that not only had Commissioner Huxter said: status quo should be maintained, but indeed at paragraph 46, you had agreed with him and you found that the status quo was the new hours agreement and what I say is, and it must also be its consequence.
PN943
The new hours agreement didn't embody the payment of any penalty rate, never had and it is quite clear that that really becomes an issue only towards the end of the life of the trial period. The comments that I want to make about the cases that have been - that your attention has been drawn to are very brief. I don't suggest on behalf of the company that section 154 of the South Australian Industrial Relations Act - that is, the equity and good conscience provision - has got any work to do in this at all. I might have introduced that into argument if I had a different set of facts and a different set of evidence and I was before the learned Industrial Magistrate, Mr Hardy, where this matter was started, but I don't think it is a matter, with the greatest of respect, that is of concern to you, Commissioner.
PN944
You will have observed, I am sure, that as the cases starting from the rather famous Walkley v Dairy Vale case - famous in this State anyway - rolled through, but most of those - the great majority of those cases dealt with situations where people purported to contract out of an award, and not only is the State Act not surprisingly clear that you can't contract out of an award, but you can have a more beneficial arrangement, but that is just simply not what we are dealing with.
PN945
We are dealing with, as you neatly summarised, the operation of this agreement and its clause, vis-a-vis, the relevant award, and the effect of section 170LY on the operation of the agreement. So with the greatest of respect, I don't really see that you can draw any comfort whatsoever out of the great majority of those cases. Dunford v Allan Taylor, the decision of Wilcox J, I think, is in a slightly different category, only in that it does not deal with contracting out of an award, but it looks at what a "meal break" is. It is equally of no assistance to you, I say.
PN946
Russell v Adelaide Business Communications, a case that is better known by its jumble of alphabet soup, those letters ACN number and then all of the numerals, the decision of the late Industrial Magistrate Cunningham, was really a decision that dealt appropriately with the application of an agreement, vis-a-vis an award and turned on a number of other issues, including the application of equity and good conscience provision, as to where you had agreements operating alongside of awards.
PN947
I certainly want to make it clear, I don't know why all those equity and good conscience cases were raised. Perhaps because some of them were on a list of authorities of mine to Industrial Magistrate Hardy. They are certainly not anything that I brought before you and, insofar as wherever the union has said they are relevant, I agree, and where they haven't, I say they are irrelevant.
PN948
I haven't actually referred you to any cases in relation to this matter, and there is a reason for that and, it is this, because what we - the people at the bar table - are asking you to do by virtue of clause 16 of the agreement, is resolve this dispute. As you have noted we have passed through a number of phases, so now we are at arbitration, and it is really not a matter where I could find any blueprint case that I could say to you: look, this is how this works, apply it here.
PN949
Rather, with respect, it is a matter of you approaching this on the particular and peculiar facts to this trial, on what you have already noted to be the extremely well minuted documentation in relation to the matter, and determining whether - we say, whether status quo, meant maintenance of both the hours and not paying any penalty rate, until this matter was resolved by the parties at the workplace under clause 29.
PN950
If you say that that is what it meant, if you say that is the dispute and that is what it meant, then, there is no relief here for the union. If you say otherwise, well, we are on a learning curve.
PN951
THE COMMISSIONER: Mr Dowd, there are several matters I want to raise with you. In relation to the employees whose pay was docked for leaving the premises, are there records of those people who lost pay?
PN952
MR DOWD: I would have to take instructions. I have no specific instruction at all in relation to any - whether there are any and the extent to which their pay was docked.
PN953
THE COMMISSIONER: Yes. Perhaps if you take a moment, I would like to know the answer to that.
PN954
MR ROELINK: At this point in time my understanding is there were very few employees, a number below 10, I believe, during that trial - during that period, who had any pays docked.
PN955
THE COMMISSIONER: Yes, I didn't hear the first part. You think there were about 10 people during the trial period - - -
PN956
MR ROELINK: I don't think there were more than 10.
PN957
THE COMMISSIONER: - - - who lost money?
PN958
MR ROELINK: Yes.
PN959
THE COMMISSIONER: What about over the entire period from the initial 3-month trial and through to the resolution of the issue of pass outs?
PN960
MR ROELINK: Again - - -
PN961
THE COMMISSIONER: Mr Roelink, you have been in the Commission before.
PN962
MR ROELINK: Yes, I have. Sorry.
PN963
THE COMMISSIONER: I think for the purpose of the record, there is not an announcement, so it will be Mr Roelink who is addressing the Commission. Yes.
PN964
MR ROELINK: I don't have an accurate number, but my belief is there was still a small number and it would have been very close to 10 for the whole period.
PN965
THE COMMISSIONER: Is there any way of identifying those people?
PN966
MR ROELINK: I would have to go back and go through the payroll system, so not today.
PN967
THE COMMISSIONER: No, no, but does the company have the relevant records for that period?
PN968
MR ROELINK: They will have, yes.
PN969
THE COMMISSIONER: Yes, thank you. Yes, Mr Dowd.
PN970
MR DOWD: Sorry, was there anything else?
PN971
THE COMMISSIONER: Is there anything else? No, that is all.
PN972
MR DOWD: Then, I have nothing to add.
PN973
THE COMMISSIONER: Yes, all right, thank you.
PN974
MR DOWD: Thank you.
PN975
THE COMMISSIONER: Is there anything in reply, Ms Smith?
PN976
MS SMITH: Yes, just a short reply, Commissioner. My friend referred to the union's submission that clause 29 of the enterprise agreement cannot override their penalty payments in the award, and he asked, why not? The reason the union says that, "why not", is because there is no express intent in the enterprise agreement which states that clause 29, which allows patterns of workplace flexibility to be agreed in the various site or plant committees, extends to changing, or altering the paid rates, or penalty rates within the award and this is not inconsistent.
PN977
My friend also referred to your decision of 18 June 2002. I refer you to paragraph 54 of that decision, the final sentence. Do you have that, Commissioner? It says:
PN978
Where the agreement is silent on a matter it is the scheme of the Act that the award provisions apply but in this case the process regarding flexible work patterns is contained in the agreement and that provisions takes precedence over the award.
PN979
We agree with that Commissioner. The enterprise agreement takes precedent over the award in relation to flexible work patterns but the enterprise agreement is silent on the rate of penalty payments and rates of pay in respect to changed work patterns that have been arrived at through agreement of the various committees. So what we are asking is not inconsistent with your decision of 18 June 2002.
PN980
My friend also said that it makes sense there is an implied term and he said not in a legal sense because the application is not claiming penalty payments during the trial period that it is implied that continues while the trial continued. The evidence has shown, Commissioner, that prior to the implementation of the 3 month trial period, the issue of penalty payments was not addressed by either party. It was not discussed. There was no agreement to forego it.
PN981
There was to agreement that it would be paid. It was silent on that matter and the enterprise agreement was silent, it is our submission that clause 16 of the award applies. I also refer you to clause - subsection (d) of 16 of the award it says:
PN982
This clause shall not apply to employees on continuous work shifts.
PN983
It our submission the workers in plant 4, in the press shop, were not on a continuous work shift which is defined within the award. My friend also has made much of saying that the respondent had no choice to maintain the status quo pursuant to clause 16 of the award while the issue was being resolved.
PN984
I put it to your, Commissioner, they did have a choice and they made that choice on 21 July 2000 when it was satisfactorily resolved by the parties when the second relief break was changed to an unpaid lunch break during which the workers were allowed to leave. There is no evidence to show why this was not available at the conclusion of the trial period and had it been made available at the conclusion of the trial period we wouldn't have been before you today.
PN985
So the respondent did have a choice. The respondent did not maintain the status quo. This issue is still not resolved and that is why we are here today. However, they made the choice to change the hours on 21 July 2000. That could have been done at the end of the 3 month trial period on 5 December 1999. I would also like to refer you to the minutes of the site committee dated 22 October 1999. This was the first meeting after the August meeting of the site committee where the union's concerns were clearly raised by John Gee and this is minuted at point 6, subsection (6), plant 4, change of working hours.
PN986
So that is in contrast to my learned friend's closing submissions that it was not until February 2000 when Mr Camillo raised this concern. This was 22 October which is prior to the finish of the agreed 3 month trial period. As I said in my closing submissions, Commissioner, the union could claim, in our submission, for the 3 month trial period but it was precisely because there was no discussion in relation to penalty rates and the fairness - I have been instructed not to claim for this period but just - which was agreed and it was a trial period but to claim from the end of that trial period which was not agreed by the parties.
PN987
Finally, Commissioner, my learned friend said that the authorities refer to you cases where people purported to contract out of an award and this is not what we are dealing with here and he refers to section 170LY of the Act. With respect, Commissioner, it is our submission that this is exactly what we are dealing with here. The award states penalty rates. It states the wage rates. The enterprise agreement state the flexibility to workplace hours and provisions. These are not inconsistent.
PN988
The enterprise agreement is silent as to award rates yet my friend is saying there was an agreement between the parties not to - yes, to contract out of the award. No application was made to vary the award. The award is the governing industrial instrument, the award and the agreement and nothing in clause 29 or anywhere else in the enterprise agreement spells out the intent of the parties for the flexibility clause in clause 29 for the parties to be able to agree to something contrary to the award without applying to vary this industrial instrument. Those are our submissions, thank you, Commissioner.
PN989
THE COMMISSIONER: Thank you to Mr Dowd and Ms Smith for their attention to detail and the manner in which they have presented the submissions on behalf of the parties. This matter has been going for some time and the end is in sight. It will not surprise you that I intend to reserve my decision in relation to this matter. I understand there are a number of matters relating to other cases which we have on this week but I will adjourn these proceedings sine die.
ADJOURNED INDEFINITELY [3.38pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
PETER ROBERT OWEN, SWORN PN379
EXAMINATION-IN-CHIEF BY MS SMITH PN379
EXHIBIT #S2 APPLICANT'S BOOK OF DOCUMENTS PN386
EXHIBIT #S2(2) STATEMENT OF MR OWEN PN386
WITNESS WITHDREW PN411
BRIAN WILLIAM WILLACE, SWORN PN412
EXAMINATION-IN-CHIEF BY MS SMITH PN412
EXHIBIT #S2(1) WITNESS STATEMENT OF MR WILLACE PN419
WITNESS WITHDREW PN422
JONATHON PETER GEE, SWORN PN424
EXAMINATION-IN-CHIEF BY MS SMITH PN424
EXHIBIT #S2(3) WITNESS STATEMENT OF JONATHON PETER GEE PN429
CROSS-EXAMINATION BY MR DOWD PN431
EXHIBIT #H4 INFORMATION BOOKLET TO ALL SHOP STEWARDS AND MEMBERS PN509
RE-EXAMINATION BY MS SMITH PN511
WITNESS WITHDREW PN533
EXHIBIT #S3 LETTER DATED 10/02/2002 PN538
JOHN CAMILLO, SWORN PN542
EXAMINATION-IN-CHIEF BY MS SMITH PN542
EXHIBIT #S2(4) STATEMENT OF JOHN CAMILLO PN547
CROSS-EXAMINATION BY MR DOWD PN549
RE-EXAMINATION BY MS SMITH PN723
WITNESS WITHDREW PN749
IAN ROBERT HUTCHINS, SWORN PN765
EXAMINATION-IN-CHIEF BY MR DOWD PN765
EXHIBIT #H5 UNSWORN STATEMENT OF MR HUTCHINS PN772
CROSS-EXAMINATION BY MS SMITH PN782
WITNESS WITHDREW PN800
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