C3855/900, Transcript of Proceedings [2003] AIRCTrans 801 (12 March 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N VT1740
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LEWIN

C No 38559 of 2000

TRANSPORT WORKERS' UNION OF AUSTRALIA

and

AERO-CARE PTY LIMITED and OTHERS

Notification pursuant to section 99 of the Act
of a dispute re log of claims - wages and
conditions

MELBOURNE

10.07 AM, THURSDAY, 20 FEBRUARY 2003

Continued from 11.2.03

PN322

THE COMMISSIONER: Good morning. Are there any changes in the appearances, please?

PN323

MR L. DUFFIN: Yes, Commissioner. I appear on behalf of the Transport Workers' Union. MS J. TISDALE continues her appearance.

PN324

MS L. McDONALD: I am the National Industrial Officer with the LHMU and with me is MR P. McNEILL, Organiser with our Victorian Branch. He is also a witness today.

PN325

THE COMMISSIONER: McNeill, is it?

PN326

MS McDONALD: That is right, M-c-N-e-i-l-l.

PN327

THE COMMISSIONER: Yes. It is probably best if we don't enter an appearance for Mr McNeill. He will be a witness in the proceedings, is that right? Very well. Thank you.

PN328

MR I. McDONALD: I now appear on behalf of Quality Bakers pursuant to leave previously granted.

PN329

THE COMMISSIONER: Yes, thanks, Mr McDonald. Well, it is probably appropriate if those seeking the exercise of the Commission's powers to dismiss this matter go first.

PN330

MR McDONALD: Yes, we are the moving party, if the Commission pleases. Can I proceed on the basis that the Commission has received the outlines of submissions, those filed on behalf of Quality Bakers, the LHMWU and the TWU?

PN331

THE COMMISSIONER: Correct.

PN332

MR McDONALD: Commissioner, you may have seen in the submissions filed on behalf of the Transport Workers' Union that it is no longer pressing for federal award coverage outside of Victoria. That is, the form of the roping-in application in its original form sought to rope Quality Bakers into the Transport Workers' Mixed Industries Award in accordance with its incidence and operation and that award, in those terms, applies in Queensland, Victoria, South Australia and Tasmania.

PN333

So the claim which was previously on foot, Queensland, South Australia and Tasmania, has been abandoned and the claim in its modified form is for the roping in of the company into the Transport Workers' Mixed Industries Award 2002 but subject to the qualification that Quality Bakers is bound only in relation to employees employed within the state of Victoria. Can I inquire, have you received a copy from the union of the modified form of order?

PN334

THE COMMISSIONER: I am not sure about that.

PN335

MR McDONALD: No. If it is convenient, can I hand up a copy because what occurred, Commissioner, is that when we saw the terms of the outline of submissions filed by the union we, in fact, asked them to provide us with the form of the order they were now seeking and there is no - there is silence at the other end of the bar table so I take it there is no problem with me handing that up.

PN336

THE COMMISSIONER: All right. Well, we might just mark this as TWU1.

PN337

MR DUFFIN: I think that is appropriate, Commissioner.

EXHIBIT #TWU1 MODIFIED FORM OF ORDER

PN338

MR McDONALD: And the substantive and operative change between this and the earlier proposed award is found in schedule A where there is the qualification in relation to the operation of the award in relation to Quality Bakers employees.

PN339

THE COMMISSIONER: Thank you.

PN340

MR McDONALD: You will probably have also seen, Commissioner, that the submissions filed on behalf of the Transport Workers' Union have raised an alternative submission, I think, perhaps, could be a fair description of it. That is, that if you are not persuaded of the force of the claim in relation to the roping-in application, that you could vary the Quality Bakers Award. This is found in paragraph 19 of the outline of submissions of the Transport Workers' Union:

PN341

The TWU submits alternative form of remedy could involve an order making the TWU a party to the QBA Award.

PN342

Just for your convenience, given that that is being put up as an alternative form of relief, Commissioner, that award, the QBA Award, is found behind tab 10 to Mr Campbell's witness statement and it is the third award behind tab 10. We have had some discussions with the Transport Workers' Union regarding the position which they wish to take in terms of cross-examination of the witnesses to be called who have filed statements on behalf of Quality Bakers and the union indicated that they didn't require Mr Galvin or Jeffries for the purposes of cross-examination and that there was no objection to the tender of their statements without requiring those gentlemen for the purpose of cross-examination.

PN343

So I would seek, Commissioner, at the outset if I may, to tender into evidence the witness statement of Grant Galvin of 11 February 2003 together with its exhibits.

EXHIBIT #QB1 WITNESS STATEMENT OF GRANT GALVIN DATED 11/2/2003 INCLUDING EXHIBITS

PN344

MR McDONALD: And the witness statement of David Jeffries of February 2003 and exhibits. Thank you.

EXHIBIT #QB2 WITNESS STATEMENT OF DAVID JEFFRIES DATED 11/2/2003 INCLUDING EXHIBITS

PN345

MR DUFFIN: Commissioner, I don't mean to interrupt my friend while he is in flow but I just wanted to put one clarification in relation to what Mr McDonald has just said. It was made clear to Mr McDonald's instructor that we do not object to those going in. However, we do reserve our rights in relation to those matters should we ultimately seek to press an application as against South Australia or Queensland. So it was a means of, given the nature of the relief that we were seeking here today - - -

PN346

THE COMMISSIONER: Well, you don't object to the admission of the statements - - -

PN347

MR DUFFIN: No, that is - - -

PN348

THE COMMISSIONER: - - - without cross-examination for the purposes of determining whether or not Quality Bakers should be bound by an award?

PN349

MR DUFFIN: By - that is correct.

PN350

THE COMMISSIONER: To which the TWU is a respondent, either the Mixed Industries Award - - -

PN351

MR DUFFIN: Or the Quality Bakers.

PN352

THE COMMISSIONER: Or a varied Quality Bakers Award in Victoria.

PN353

MR DUFFIN: That is correct, Commissioner.

PN354

THE COMMISSIONER: And insofar as issues concerning other States are concerned, at a future time you may wish to quarrel with or elaborate upon - - -

PN355

MR DUFFIN: Precisely.

PN356

THE COMMISSIONER: - - - the evidence that has been admitted now.

PN357

MR DUFFIN: That is precisely - - -

PN358

THE COMMISSIONER: Is that right?

PN359

MR DUFFIN: Yes, sir.

PN360

THE COMMISSIONER: All right. Well, that is noted.

PN361

MR McDONALD: Yes, thank you. Well, at this point in time, Commissioner, if I may, I would like to proceed directly to the evidence which the Company wishes to lead. And that is, in addition to the evidence of Mr Jeffries and Mr Galvin, that is - would seek to call Mr Simon Campbell, so if he could, please, come to the witness box.

<SIMON JOHN CAMPBELL, SWORN [10.15am]

<EXAMINATION-IN-CHIEF BY MR McDONALD

PN362

THE COMMISSIONER: Thanks, Mr Campbell, please be seated. Yes, Mr McDonald.

PN363

MR McDONALD: Now, Mr Campbell, do you have in front of you a copy of the witness statement that you prepared for the purpose of these proceedings dated 11 February 2003?---Yes.

PN364

Do you have that? Now, there is just one matter I wanted to clarify with you. In paragraph 11 of that statement, you have listed various figures in relation to employee numbers of the Company and the location of those employees. Now have you had cause to update those figures of recent times?---Yes.

PN365

And if I could lead the witness through this? Is the position now, as you understand it to be, that the total number of wages employees in fact is 902?---Yes.

PN366

Correct?---Yes.

PN367

The number at Ballarat is 129?---Yes.

PN368

At Clayton, 515?---Yes.

PN369

At Geelong, 98?---Yes.

PN370

At Mildura, 28?---Yes.

PN371

At Moe, 62?---Yes.

**** SIMON JOHN CAMPBELL XN MR McDONALD

PN372

And Wodonga, 70?---Yes.

PN373

Thank you. Now, save for that alteration to your statement, are the contents of the statement true and correct?---Yes.

PN374

Thank you. Nothing further.

PN375

THE COMMISSIONER: Thank you. Yes, Mr Duffin.

<CROSS-EXAMINATION BY MR DUFFIN [10.17am]

PN376

MR DUFFIN: Mr Campbell, I might just take you first to paragraph 9 of your statement. You say there that your main competition - - -

PN377

THE COMMISSIONER: I beg your pardon, QB3 is the statement.

EXHIBIT #QB3 STATEMENT OF S.J. CAMPBELL

PN378

MR McDONALD: Thank you.

PN379

THE COMMISSIONER: Sorry, Mr Duffin, go ahead.

PN380

MR DUFFIN: That is okay.

PN381

You say there that the main competition is George Weston?---Yes.

**** SIMON JOHN CAMPBELL XXN MR DUFFIN

PN382

Is that correct?---Yes.

PN383

And that Tip Top is the main brand that comes out of George Weston; is that correct?---Yes.

PN384

Are you aware of Tip Top's industrial arrangement sin Victoria?---Not specifically, only generally.

PN385

Perhaps if the witness could be given a copy of this agreement? Do you see that that agreement there is an agreement between Tip Top Bakeries and the TWU? That is correct, isn't it?---Yes.

PN386

And that if you look at that agreement - it may not be a matter of dispute obviously, but the agreement is in force at the present time, doesn't expire until 1 March 2003. That is on the first page, Mr Campbell?---I can't see it, actually but - oh, yes, I can, at the bottom of the page, yes.

PN387

Okay. And you would see in relation to that agreement, Mr Campbell, that the sort of parent award, if you like, is on page 3 of that, which is the Tip Top Bakeries Bread Carters Victoria Award 1994?---Yes.

PN388

Now, are you aware of the industrial arrangements in the ACT in relation to your company, Mr Campbell?---Generally, but not specifically.

PN389

Could I hand up another certified agreement to you, Mr Campbell?

PN390

THE COMMISSIONER: I think for the sake of ease of reference, we will call this an exhibit.

EXHIBIT #TWU2 AGREEMENT T2180

**** SIMON JOHN CAMPBELL XXN MR DUFFIN

PN391

MR DUFFIN: Perhaps it might be appropriate to seek - if I tender this one as well then, Commissioner.

PN392

THE COMMISSIONER: Yes, well, just give it to the witness first in case there is some issue.

PN393

MR DUFFIN: That is an agreement between your Company and the Transport Workers' Union and the ALHMWU, isn't it, Mr Campbell?---Yes.

PN394

That operates in Canberra, or the ACT?---That would appear to be the case.

PN395

And it is in force until 6 March 2004?---Yes.

EXHIBIT #TWU3 ACT AGREEMENT

PN396

MR DUFFIN: Just continuing along that sort of theme, Mr Campbell, do you know of the arrangements in Queensland at all, whether there is - - -?---Again, generally, but not specifically.

PN397

Again I would seek to hand up an agreement, Commissioner. This is actually attached to Mr Galvin's statement. Regrettably, the stapler at my office found this one a little bit difficult to get completely around.

PN398

Do you see in the middle of the first page there:

PN399

This agreement made under the Industrial Relations Act 1999 ...

**** SIMON JOHN CAMPBELL XXN MR DUFFIN

PN400

?---Excuse me, Commissioner, can I get my reading glasses?

PN401

THE COMMISSIONER: Certainly?---Thank you.

PN402

MR DUFFIN: In the middle of that first page:

PN403

This agreement made under the Industrial Relations Act 1999 between Quality Bakers Australia, trading as Queensland Country Bakeries, ALHMWU, AMWU, and TWU Queensland Branch.

PN404

Do you see that?---Yes.

PN405

Are you aware that in Western Australia, the TWU is a - - -

EXHIBIT #TWU4 QUEENSLAND AGREEMENT

PN406

MR DUFFIN: Thank you, Commissioner, my apologies.

PN407

Are you aware that in Western Australia, the TWU is a party to the industrial arrangement in the State Commission in Western Australia?---Yes.

PN408

So the TWU has a reasonable presence in employee delivery across Quality Bakers; is that not correct?---In those locations, yes.

PN409

And clearly has a presence in Tip Top, your main competitor in Victoria; isn't that correct?---I am not - I have no specific knowledge of the extent of that presence.

**** SIMON JOHN CAMPBELL XXN MR DUFFIN

PN410

All right, that is fine. Paragraph 20 and onwards, 20 through to 25, you detail some matters in relation to section 118A applications. Do you understand what section 118A applications are?---Generally, yes.

PN411

What is your interpretation of how they work?---At that time - - -

PN412

Sorry, just generally?---Generally?

PN413

Don't worry about - - -?---Okay, well, when - my knowledge is based upon specifics of my experience, and my experience was that was to determine union coverage, union rights to represent within particular companies and particular industries.

PN414

So it is a - - -?---And an award coverage.

PN415

Would it be fair to say that the - where the Commission determines this, exclusive coverage is granted to one union at the exclusion of another?---I believe the Commission can make that order, or a combination of orders of coverages, which indeed they did in that case.

PN416

That is fine. Paragraph 22 you detail the order the Commission gives. There is nothing in that order about the TWU, is there?---The TWU withdrew from the matter.

PN417

Could you just answer the question? There is nothing in that order about the TWU, is there?---No.

PN418

Thank you. Indeed, if you go to - what is it - SJC2, which is this second attachment to your statement, there is the actual decision of Deputy President Watson. That is correct?---Yes.

**** SIMON JOHN CAMPBELL XXN MR DUFFIN

PN419

The TWU matter is C No 31143 of 1992. That is found in the first paragraph? If you go to the third page, do you mind just reading out the first sentence there?---Of the third page?

PN420

Yes?---

PN421

There is no doubt that there are other organisation coverage issues reflected in the terms of the application in matters C No 33397 of 1991 and 31143 of 1992, which are left unresolved by the order I will make.

PN422

So from the decision and the order, the matter of the TWUs position has not at any stage been resolved?---As I said, the TWU withdrew.

PN423

The TWU position in relation to this has not been resolved according to that decision; that is correct, isn't it?---That is correct, the TWU withdrew.

PN424

The position of what the TWU may or may not have done by way of withdrawal of notification, is quite different to what the decision of the Commission was; is that correct?---Well, the decision doesn't go to the TWU.

PN425

Thank you, that is all I needed from you. I just need to clarify again, when did you actually start with Quality Bakers?---Thirty-first of July, 2000.

PN426

Thirty-first of July, 2000?---Mm.

PN427

Have you had any industrial disputes between 31 July 2000 and the present time, arising from TWU membership?---Disputes - what do you mean by disputes?

**** SIMON JOHN CAMPBELL XXN MR DUFFIN

PN428

Well, let us start with industrial action. Have you had any industrial action whatsoever arising from TWU membership?---No.

PN429

Has there been any disputes by way of something lodged in the Commission from the TWU?---No.

PN430

There has been - there has not been - - -

PN431

MR McDONALD: There has been a finding of an industrial dispute.

PN432

MR DUFFIN: I accept that issue. I was - perhaps I need to clarify my position a little bit by way of a - - -

PN433

THE COMMISSIONER: It might sort of qualify how useful for the purposes of at least jurisdictional questions, the witness's evidence can be.

PN434

MR DUFFIN: I understand that, Commissioner.

PN435

In relation to - has the TWU sought at any stage to come onto sites where they have members employed by your organisation in Victoria, in your period of time there?---Yes, I am aware that there is a handful of members at our Moe Bakery, and that there has been some discussion with the - with the local baker manager about that.

PN436

Could I hand a copy of a letter to you from the TWU addressed to Mr Peter Nelson. Have you seen this letter before?---Yes, I believe so.

PN437

Okay.

EXHIBIT #TWU5 LETTER FROM TWU TO P. NELSON

**** SIMON JOHN CAMPBELL XXN MR DUFFIN

PN438

MR DUFFIN: What was your response to that letter?---The - Mr Nelson, Peter Nelson and I discussed the letter and our response was to deal with individual issues raised by our employees, and as the TWU aren't members to - aren't respondent to our industrial agreement, Peter was - approach was to address the issues of our employees. And that was an agreed approach, and he consulted me about that.

PN439

And you recommended that?---That we address the concerns of individual employees, yes, certainly.

PN440

Did you allow the TWU to come on site to discuss matters with the members?---I don't believe so.

PN441

If I could show you another letter?---Thank you.

PN442

Have you seen a copy of this letter before?---Yes, I am the recipient of this letter.

PN443

Indeed.

EXHIBIT #TWU6 LETTER ADDRESSED TO S.J. CAMPBELL

PN444

MR DUFFIN: Now, as I understand it, that letter sets out your position in relation to the TWU coming on site, which is that the Union is entitled to come on site for inspections of a breach of the Act, but not in relation to the breach of the agreement?---Sorry, would you ask the question again, I was just reading the letter just to make sure - it has got to be this letter - - -

PN445

Certainly. Your position is that the Union can come on site for a breach of the Act, but not for a breach of the Agreement, is that correct?---Yes, I think the letter clearly outlines our response.

**** SIMON JOHN CAMPBELL XXN MR DUFFIN

PN446

So where a member of the TWU would seek to have discussions on site with their relevant union official, be it organiser or industrial officer, you would refuse that permission unless it was a breach of the Act; is that correct?---Unless there was a legitimate right, that is right.

PN447

What about in relation to the disputes procedure under your agreement? Would you require - would you refuse the right of the TWU official to attend?---The TWU aren't a party to the agreement.

PN448

That is my understanding. So you would refuse the right of the TWU official to attend to deal with that?---I think that letter outlines our response.

PN449

I am just trying to clarify it for my own purposes. I mean it may well be that we deal with this somewhere down the future?---Any - for the handful of members the TWU have, any individual who raises concerns with our manager, that is dealt with.

PN450

You understand, don't you, that the Act is about - one of the principal objects of the Workplace Relations Act which you are relying upon in that letter, is freedom of association?---Myself and our company have no quarrel with that.

PN451

I am sure that is true. However, what I am interested in is why a person who is a member of a legitimate organisation is not entitled to request that official from that organisation to come on to site to deal with a matter in relation to an individual grievance, and your answer is the TWU is not a party to the agreement?---We have a comprehensive dispute settling procedure and our company is party to a comprehensive agreement regarding the terms and conditions of employment and how we deal with such matters and we follow those procedures.

PN452

Which is essentially to refuse the TWU - - -?---Which is outlined in our enterprise instrument - industrial instrument.

**** SIMON JOHN CAMPBELL XXN MR DUFFIN

PN453

Your agreement, as I understand it, is attached to SJC10; you have a copy of it there in front of you?---Yes, I do.

PN454

The reference to the union in this agreement is found at clause 3(b); is that correct?---That is correct.

PN455

And the union in this instance being the Australian Liquor, Hospitality and Miscellaneous Workers Union?---That is correct.

PN456

Where are - you don't recruit your drivers from the breadroom, do you?---They could come - anybody is allowed to - or free to apply for a job.

PN457

The majority of your drivers are not recruited from either the breadroom or the bakery, are they?---There is nothing excluding them from making application.

PN458

No, I accept that. You are being very good on your answers. Let's just deal with this one step at a time. The majority of your drivers are not recruited from the bakery?---That is correct.

[10.40am]

PN459

And the majority of your drivers are not recruited from the bedroom, are they. The majority of your drivers are recruited from the transport industry, generally, aren't they?---A basic requirement is the relevant ability to drive the truck, yes.

PN460

So, for example, those class 5 drivers and above, or is it class 4 and above, I think, they require the heavy vehicle licence, don't they?---Without checking the exact reference, yes, we have requirements for particular licences.

**** SIMON JOHN CAMPBELL XXN MR DUFFIN

PN461

Okay. So the people that you are recruiting for drivers by and large would require - would be required to have the appropriate licensing to drive the sort of vehicles that you use?---Obtaining a licence, a truck licence isn't a hard thing to do and it is not the essential qualities we look for. The essential qualities are our customer focus, customer service.

PN462

So the issue is, for those drivers that you - for the majority of the drivers that you have employed, they have come to you with the appropriate qualifications from the transport industry, haven't they?---Many of them do but it is not an essential requirement because, as I say, that licence isn't hard to obtain. The other qualities of our customer service requirements are more important to us.

PN463

But many of them do?---Certainly.

PN464

At the present time you have that certified agreement which I have previously referred to in place, that is correct, isn't it?---Yes.

PN465

Are clerical employees - are employees covered by the ASU Clerical Award covered by that agreement?---I am not fully familiar with the total coverage of the ASU Award. There could be some overlap in terms of customer service personnel, there are some classifications here that cover office - you know, the office and customer service positions.

PN466

Asking the question slightly differently: Are there employees covered by the ASU Award who are not subject to this agreement?---That is likely to be the case but I can't think of any specifically.

PN467

All right. So it is likely to be the case?---Yes.

PN468

And in addition to wages staff, I presume from the reference in paragraph 11 that Mr McDonald took you to this morning that there are salaried staff there as well?---Yes.

**** SIMON JOHN CAMPBELL XXN MR DUFFIN

PN469

Approximately how many salaried staff are there in Victoria?---I would say approximately 300.

PN470

Right?---Yes, maybe less.

PN471

So the probability is, in Victoria, that there are approximately 300 salaried staff, there are some people covered by the ASU Award who aren't covered by the agreement and then there is the agreement staff. That is correct, isn't it?---That is probable, yes.

PN472

That is probable?---Yes.

PN473

You would aware that, in the ACT, the employee drivers were contracted out in approximately mid 2001?---I am generally aware again, I am not specifically aware of the details.

PN474

Are there any - and my understanding is that in some areas of Victoria there has been some contracting out of employee drivers already?---Approximately seven, after the closure of a depot and there was approximately seven.

PN475

Are there any plans in place to contract out any additional employee drivers within Victoria?---No.

PN476

Now, the only issues that the TWU has raised since they have had these, to use your words "handful of members", have been in relation to workers comp for a particular employee and the right of entry. Is that correct?---Sorry, could you just give me the lead in again, I am sorry, I didn't hear it.

PN477

I am sorry?---Could you just repeat the start of that sentence?

**** SIMON JOHN CAMPBELL XXN MR DUFFIN

PN478

Yes, certainly?---Yes.

PN479

Since the TWU has obtained these members, the only issues that have come to your attention in relation to it have been a right of entry issue and something concerning workers comp with a particular employer?---Okay. The right of entry issue. Yes, to it because it is subject to that correspondence. The workers comp issue. No, not specifically. My discussions with Mr Nelson, baker manager in Moe, has been around addressing employee concerns and the problem that he faces is that when he gets anonymous messages left on a phone, he can't deal with that. When an employee comes to him he does deal with it and he is a very good - one of our very good managers and deals with employee issues as soon as they come to his notice. But I am not specifically aware of a workers comp matter. No.

PN480

That you know of. You know that there was a TWU matter involving a workers comp situation in Moe?---No, I don't. I just said that I am not specifically aware because I have a very good manager in Moe and we discuss generally his approach to managing his people but I didn't get involved and don't get involved specifically unless there is a particular technical or difficult reason.

PN481

All right. Well, that is fine. So from your perspective the only issue that the TWU has brought to your attention is the right of entry issue?---Specifically, that came to my attention. Yes.

PN482

Nothing further, Commissioner.

PN483

THE COMMISSIONER: Thank you. Any re-examination, Mr McDonald?

PN484

MR McDONALD: No, Commissioner.

**** SIMON JOHN CAMPBELL XXN MR DUFFIN

PN485

THE COMMISSIONER: Did you - - -

PN486

MS McDONALD: Commissioner, could I ask some questions?

PN487

THE COMMISSIONER: I beg your pardon.

PN488

MS McDONALD: Thank you.

PN489

THE COMMISSIONER: Sorry. I didn't realise that you wished to examine this witness. Before I return to you, Mr McDonald.

<CROSS-EXAMINATION BY MS McDONALD [10.48am]

PN490

MS McDONALD: Mr Campbell, you were the HR Manager for Victoria and Tasmania. Is that correct?---That is right.

PN491

Which unions have you dealt with in your position in relation to Victoria?---In Goodman Fielder?

PN492

Yes?---In the main, the only one has been the HMU other than what we would have discussed on the record.

PN493

Any other union in Victoria?---The AMWU. I know some people are members but we have not had any direct dealings.

PN494

Thank you. To your knowledge has there been any disharmony in the workplace over the TWU?---Only in respect of, you know, Moe and those issues that have been discussed.

**** SIMON JOHN CAMPBELL XXN MS McDONALD

PN495

Thank you. In reference to Mr Duffin's question to you about bakers taking up bread carters contracts - that is not unknown, is it, in the industry?---It is not unknown but, you know - it is not unknown. It is a possibility.

PN496

And in relation to the clerical staff would it only be the salaried clerical staff that do not fall under the current agreement?---That would be - yes, I think that is a fair summary. Yes.

PN497

Has the TWU delegate or organiser ever attended any of the consultative committee meetings as offered in the letter of 18 February from Mr Nelson to the TWU?---Not that I am aware of.

PN498

No. Thank you.

PN499

MR McDONALD: I have got no questions, Commissioner.

PN500

THE COMMISSIONER: Thank you for your evidence Mr Campbell. You are released from your oath and you are free to come and go as you please?---Thank you.

<THE WITNESS WITHDREW [10.49am]

PN501

MR McDONALD: Now that represents the totality of the evidence on behalf of the applicant. I did, just for the sake of completeness, Commissioner, wish to put in to evidence a copy of the Transport Workers Mixed Industries Award and I have one other - - -

EXHIBIT #QB4 COPY OF TRANSPORT WORKERS MIXED INDUSTRIES AWARD

PN502

MR McDONALD: And I have one other document that I will be referring to in submissions but it might be appropriate to put that to you now. It is a comparison document which we have prepared which compares key provisions of the Mixed Industries Award. In the middle column there is the safety net award, the Goodman Fielder Baking Australia (Victoria Division) Award and then in the right hand column we have got the corresponding provisions contained in the certified agreement. I will come back to this document in submissions.

EXHIBIT #QB5 DOCUMENT COMPARING KEY PROVISIONS OF THE MIXED INDUSTRIES AWARD

PN503

MR McDONALD: But subject to that, Commissioner, that is the evidence on behalf of the applicant.

PN504

THE COMMISSIONER: Thank you. Ms McDonald.

PN505

MS McDONALD: Thank you, Commissioner. Commissioner - - -

PN506

THE COMMISSIONER: Sorry. I beg your pardon. Just before we start. I am not quite sure whether the letter to Mr Noonan dated 18 February 2002 is exhibit TWU6. If I didn't - - -

PN507

MR McDONALD: Yes, you did.

PN508

THE COMMISSIONER: I did. All right. I just couldn't recall whether I did. Thank you. Yes. Sorry, Ms McDonald.

PN509

MS McDONALD: Thank you, Commissioner. Commissioner, the LHMU appears in this matter as the Baking Industry Union to oppose the application by the TWU to rope Quality Bakers Australia Limited into the Transport Workers Mixed Industries Award 2002 and the further alternate remedy to become party to the current Goodman Fielder Baking (Victoria) Award. The union acknowledges that the TWUs roping in exercise was for a number of employers and our interest clearly lies only in that part of the application with respect to Quality Bakers Australia Limited.

PN510

The dispute finding with the company is now two years old. We know of no reason for the delay in bringing this roping in application except that bargaining is due to commence shortly with Quality Bakers with the current agreement expiring on 30 June 2003. As put to the Commission in our written outline of submissions filed on 11 February, which we appreciate the extra day, thank you. The basis on which the LHMU opposes the application is primarily two grounds.

PN511

The LHMU ask the Commission to use its power pursuant to section 111(1)(g) of the Act and secondly today the LHMU will not pursue our application in accordance with section 111AAA as put in our written submissions at paragraph 7. In paragraph 10 of the TWUs submission the union says it will not press the making of a federal award that would cover Queensland, Tasmania, South Australia, West Australia and New South Wales. Further the TWU states in paragraph 13 that they will not press the making of any federal award in relation to the ACT or the Northern Territory.

PN512

The LHMU notes here that in the incidence clause 8.1 of the TWU Mixed Industries Award it only covers the states of Tasmania, South Australia, Victoria and Queensland. So we do not see any relevance to the reference by the TWU to instruments in the other states and territories. The LHMU also opposes the alternate presented in paragraph 19 of the TWUs submission where the union propose an order making them a party to the current Victorian award.

PN513

Commissioner, our evidence will go to the reasons for our opposition. If I could call Peter McNeill to the stand.

<PETER McNEILL, SWORN [10.54am]

<EXAMINATION-IN-CHIEF BY MS McDONALD

PN514

THE COMMISSIONER: Mr McNeill, please be seated.

PN515

MS McDONALD: For the record, please tell the Commission your name and occupation?---Peter Bernard McNeill and I am the organiser convenor for the LHMU Baking and Sales section.

PN516

Thank you. Have you prepared a written statement of evidence you wish to give to the Commission today?---Yes, I have.

PN517

Commissioner, may I tender the signed witness statement?

PN518

THE COMMISSIONER: Yes, tender it for the witness first.

PN519

MS McDONALD: Commissioner, would you like a moment to read the witness statement.

PN520

THE COMMISSIONER: No, it is not necessary but he will have to affirm it. Is that true and correct, that statement, Mr McNeill?---Yes, it is.

EXHIBIT #ALHMWU1 WITNESS STATEMENT OF MR McNEILL

PN521

MS McDONALD: Mr McNeill, prior to being an organiser, what was your position?---I was actually a bread vendor for Granny Davis Bread originally.

PN522

And how long have you been involved in the baking industry?---All up as being in the industry - around 24 years.

**** PETER McNEILL XN MS McDONALD

PN523

And how long as an organiser with the LHMU?---Approximately 13 years.

PN524

Thank you. Mr McNeill how do the company's drivers refer to themselves?---Well, the call themselves bread carters or bread van salesman, is there normal way that they call themselves. The call themselves bread carters because it is like you don't call a baker a cook. They see themselves as a unique sort of people so that is what they call themselves, bread carters.

PN525

Thank you. In your statement at paragraphs 5 to 8, you discuss the history of the union rules coverage of bread carters since 1995 and the amalgamations that have occurred. Has is the coverage of drivers and the membership of our union or predecessor organisations remained fairly constant during that period?---Yes, it has.

PN526

In paragraph 10 of your statement you refer to the Kennett industrial legislation. What had to be done in Victoria to comply with that legislation?---Well, I think we all were aware that the state awards were being abolished by that - by the Kennett government. We actually took our members from the state system through to the federal system and around that same time or just before that time we had actually gone through the process from the National Wage Case of re-doing classifications and we actually re-did the classifications for all our members.

PN527

Mr McNeill was the LHMU the only union involved in that process?---Yes, it was.

PN528

Thank you. In paragraph 11 you refer to a long relationship with Quality Bakers Australia Limited. Have there been agreements in place between the LHMU and the company for the whole time since 1992?---Yes, there has. We started the first agreement and we are probably up to about our fifth generation of agreements with that company.

**** PETER McNEILL XN MS McDONALD

PN529

In paragraph 12 of your statement you point out some of the benefits achieved through enterprise bargaining. What has LHMU representation achieved for bread carters?---It has recognised that the unique industry that they are and it actually in some of the provisions that are in the enterprise are, you know you talk to other unions and they say that it is absolutely amazing the conditions that you have got there. Like the sick leave provision that you have in there. The average earnings. People actually don't believe the rates of pay or with their average earnings, the wages that they are on and the conditions that they enjoy now. From looking at the past, you know, I talk to a lot of retired members and in the old days it was absolutely shocking and the hours were shocking. The hours are still terribly bad because of the early starts but the rosters and the conditions that are there are absolutely fantastic.

PN530

THE COMMISSIONER: You are just about to start a new negotiation, aren't you?---Yes, your Honour.

PN531

MS McDONALD: Mr McNeill, in paragraph 13 you say you have been planning with LHMU delegates for the next round of agreement negotiations. Are drivers represented in that group of delegates?---Yes, we have - with Goodman Fielder we have probably about 30 delegates throughout the state. We have the major plant at Clayton but we also have all the other plants. The country plants and depots and we have delegates from the bakers, the bread room and the drivers at probably all of those sites and we have got probably about, over 30 delegates and probably 20 of those are from the driving force.

PN532

Thank you. Will all members be consulted regarding the claims to be made for the new agreement?---Most definitely. A survey has gone out to members that has gone through from the delegates to actually go through what they would like in the next enterprise agreement and we are currently collating all of that from all the different sites and then we are going to get the delegates back together again and go through what our priorities are in that survey.

PN533

And that survey has been distributed to every site?---Yes, it has.

**** PETER McNEILL XN MS McDONALD

PN534

The TWU say that contracting out is intended by the company for Victoria. Apart from the contracting out which has occurred in the regional areas of Wodonga and Shepparton are there any other moves you were aware of?---I am not aware of any and I believe, through my information, that the Hub Manager or the State Manager of Victoria has actually put out a notice to all the employees stating that - because a rumour has gone around, I suppose, and he has put out a notice on the notice board which I haven't seen, but the question is - is there going to be contracting and he has answered that by saying, no there won't be any contracting in there and I don't know the wording of it but that is - and I think it would be foolish of the company to do that because with the current working arrangements of the bread carters I don't think they would go to seven day contracting in comparison to what they have now with the work arrangements and the wages that they have.

PN535

What representation is available from the LHMU for the Moe site at Quality Bakers?---We have a regional organiser who looks after Gippsland and I am also available to deal with specific issues that are pertaining to baking.

PN536

What has been your experience with driver members at Moe?---Well, from - well, up until recently, the drivers have been very good, but from time to time these things crop up where you have a couple of people who come in that are relatively new to the industry who say, we are in the wrong union, and we have this push and it seems to come and it goes all the time.

PN537

To your knowledge, did the TWU ever approach yourself or the Victorian Branch of the LHMU indicating that members had concerns at Moe so that the LHMU could take some steps to address those concerns?---No, not at all.

PN538

Thank you, Mr McNeill. Thanks, Commissioner.

PN539

THE COMMISSIONER: Thank you. Do you want to ask Mr McNeill any questions, Mr McDonald?

**** PETER McNEILL XN MS McDONALD

PN540

MR McDONALD: I have got no questions of this witness.

PN541

THE COMMISSIONER: Yes. We probably should have gone in this order last time, but I thought because you came first, there were no questions.

PN542

MR DUFFIN: It was quite okay, Commissioner.

<CROSS-EXAMINATION BY MR DUFFIN [11.03am]

PN543

MR DUFFIN: I have just got a couple of questions for you, Mr McNeill. When you started as a bread carter, so called, in 1978, where were you delivering to?---Shops and supermarkets.

PN544

And has the - I guess the size of the trucks increased since 1978?---The size has increased in certain - there is different ways of doing it now. There is what we call the route trade, which is basically shops and supermarkets, and then there is the grocery runs which are just supermarkets.

PN545

You go on as Ms McDonald led you through your statement fairly extensively in the area of your union's rules. Are you aware of the TWUs rules at all?---No, not entirely, no.

PN546

Are you aware that the TWU rules allow it to cover drivers?---Well, I would say it would because it is Transport Workers Union, so -

PN547

In relation to your rules, I see a lot of references to employees. Does this union rule - this union rule - provide the LHMU with the right to cover independent contractors or owner/drivers?---I am not aware that it is, but we have been - since I became the organiser, we have been involved with the contract for Tip Top drivers - or Tip Top vendors or subcontractors. We were actually instrumental in negotiating on behalf of them, and then probably five years ago it changed because the industry changed and we were also a party in negotiating their vendors' agreement or contractors.

**** PETER McNEILL XXN MR DUFFIN

PN548

But you don't know whether you have constitutional coverage of that group?---No, I couldn't say whether - well, as a subcontractor, no, I don't think so.

PN549

You are the - from my understanding of your evidence, and please correct me if I am wrong, you are the organiser for the brad section of the LHMU?---I am the primary organiser because I - probably because of the experience I have with the industry.

PN550

The LHMU has some regional organisers who are effectively able to service or organise members across the entire coverage area of the LHMU; is that correct?---Yes, that is correct.

PN551

All right. And they work essentially under your guidance, if you like, in relation to bread areas?---If they have any - if they - we have a regional organiser in Gippsland; we have one who does Geelong, Ballarat, we have another one Bendigo, Wodonga, and if they are servicing - if there is a complaint that I can't get to and they service that, they contact me and if it is an absolute specific bakery problem, then we go through it and address it.

PN552

I have nothing further, Commissioner.

PN553

THE COMMISSIONER: Thank you.

PN554

Thank you for your evidence, Mr McNeill, you are released from your oath?---Thank you.

PN555

You can rejoin Ms McDonald.

<THE WITNESS WITHDREW [11.07am]

PN556

MS McDONALD: Commissioner, if I could call Mr Frederickson.

<GREGORY JOHN FREDERICKSON, SWORN [11.08am]

<EXAMINATION-IN-CHIEF BY MS McDONALD

PN557

THE COMMISSIONER: Thanks, Mr Frederickson, please be seated.

PN558

Yes, Ms McDonald.

PN559

MS McDONALD: Mr Frederickson, for the record, please tell the Commission your name, address and occupation?---Yes. Name is Gregory John Frederickson and I am a bread carter. I work for Goodman Fielder.

PN560

Have you prepared a written witness statement that you wish to give to the Commission today?---Yes, I have.

PN561

Commissioner, if I could hand up an original signed copy of the witness statement and one to Mr Frederickson.

PN562

Mr Frederickson, do you identify this as a true copy of your statement?---Yes. Yes.

EXHIBIT #ALHMWU2 WITNESS STATEMENT OF GREGORY FREDERICKSON

PN563

MS McDONALD: Mr Frederickson, how long have you been working as a driver in the baking industry?---Sixteen years as a driver.

PN564

And as a driver at Quality Bakers, you transport bread and represent the company in that capacity to customers. Does the fact that you carry bread differentiate you to drivers in the transport industry in that you have more of a relationship with the goods you carry and your customers?---Most definitely, most definitely. The idea of us - well, yes, we drive trucks, but the bottom line is we have to communicate with our customers and it is all the sales-based -

**** GREGORY JOHN FREDERICKSON XN MS McDONALD

orientation for sales, so like, the better we get on with customers, the better it is for our sales, so - and we also go to merchandise shops as well, so, you know, we must make sure they look fine and sellable units so we can sell units and keep our jobs.

PN565

Some other states do have merchandisers that do that as a separate job; you don't have merchandisers?---We do have merchandisers, but they are mainly follow up merchandisers. We go early mornings into the supermarkets and shops and when the shops open their doors, we are - the bread is on display and then the merchandisers normally come in later on and do the top-up bread and face-up the shop to make it tidy later in the afternoon.

PN566

And does your employer engage casuals?---Yes, we have need of casuals, not always the best because we have had - actually had some casuals employed as drivers, and unfortunately we have had them come in and they think all they have got to do is just drive a truck, and unfortunately we have had a case of two or three times where we have had a person come in and been there for an hour and walked away because he didn't understand that he had to actually physically pack bread on the shelves and take returns and do documentations and communicate with customers, so, you know, they have up and walked out. So there is a big difference.

PN567

In paragraph 3 you say that you were asked to join BESFA. To the best of your knowledge, would the majority of your colleagues at the time BESFA members?---Yes, they were; yes, they were.

PN568

In paragraph 9 of your statement you say that the TWU came out to your workplace; what effect did that have on the drivers at your site in Clayton?---Yes, well, that actually - that caused a big division initially and there was a lot of friction between the people who wanted to be in the TWU and the people that didn't want, and it caused just a fair amount of havoc in the workplace, that is for sure. It made it a lot harder to work there.

[11.10am]

**** GREGORY JOHN FREDERICKSON XN MS McDONALD

PN569

Are there any TWU members to your knowledge at your site?---I believe we have two; they are our members as well, so they are joint members.

PN570

In your statement at paragraph 18 you say that the ALHMU is involved in working parties under the current agreement, what sort of working parties are they?---Well, working parties, we actually have a whole list of them at the back of our EBA but one that is certainly prone to us is our rosters party where it is involved with the management and the unions and delegates. We actually form better rosters for our drivers which were great for us, great for the business and that actually gave us as bread carters a quality of life. We used to work Monday to Saturdays and have every Sunday off. We are now currently on a four day on, four day off roster which is giving - certainly allow our drivers, like I said, a life now instead of previously having the one day off - and believe me you were just like a zombie on the one day off anyway, so, not a lot you can do on one day. Well, that is just one of them and we have got the common pay method where we have got most of our employees onto average earnings where it increases not only your superannuation but it gives you a set wage each week so that you can go to a bank and get a loan instead of previously being - having your overtime built in on top. You can go and get a loan on your average earnings wage. A staff shop where we can buy Goodman and Fielder products at cost price, or lower than. All these benefits to the people and workers there - just enormous.

PN571

And are there other drivers involved in those working parties represented?---Yes, yes, there are and I believe from a couple of other bakeries as well that are involved. We do have a big committee meeting generally once every month - once every three months it is now. We all do get together from country and metro and meet. But, yes, there are certainly other drivers, just couldn't be me. You know, on a four-on, four-off I still need some time off.

PN572

What do you hope to achieve in the next agreement between the ALHMU and the company?---Well, we have currently put out a survey to all our employees asking for their input into the next EBA and I really don't want to - with the company sitting there - I really don't want to, sort of, go into the results or what we are aiming for at the moment seeing we are only a few months away from the EBA. But we have put a survey out for input from all our employees and our members.

**** GREGORY JOHN FREDERICKSON XN MS McDONALD

PN573

And do you have much contact with ALHMU members at other sites?---Yes, I do, yes, whether it be personally or by telephone. I mean, I speak to blokes and other members and delegates in all country Victoria.

PN574

You have been to Moe?---Yes, I have been to Moe, yes, several times I have been to Moe.

PN575

Mr Frederickson, if the rumour of contracting out eventuated, what affect do you think that would have on drivers?---I personally believe that it would be very hard to convince any driver to pick up a contract to go back to seven days a week after we are currently on a roster of a four day, four-off so, it would have to be a pretty damn good contract.

PN576

Mr Frederickson, do you consider yourself working as a driver in the baking industry or in the transport industry?---I am in the baking industry, most definitely.

PN577

Thank you, that is all I have, Commissioner.

PN578

THE COMMISSIONER: Thank you. Mr McDonald?

PN579

MR McDONALD: No, nothing, thank you.

PN580

THE COMMISSIONER: Thank you. Mr Duffin?

PN581

MR DUFFIN: Thank you, Commissioner.

<CROSS-EXAMINATION BY MR DUFFIN [11.16am]

**** GREGORY JOHN FREDERICKSON XXN MR DUFFIN

PN582

MR DUFFIN: You consider yourself a driver though?---I drive a truck, yes.

PN583

You said earlier that the ALHMU and your delegate committee has been involved quite heavily in dealing with rosters and driving hours, that is correct, is it not?---That is correct, yes.

PN584

Are you aware of driving hour regulations generally?---Generally, well, it is - I know we have, as far as working days in a row, there is limitations to days in a row - days in a row that you may work and as far as hours go, I was under the impression it was, sort of, was maximum of 12 and nothing ever over 12 hours on a shift.

PN585

What about lengths of time between breaks, for example?---Well, as a bread carter it is like trying to say, have your lunch break, and history proves that bread carters don't have lunch breaks because the bottom line is you keep going and you keep going through your run; when you finish you finish.

PN586

Do you know about the sort of work that courier drivers do, for example?---I am not - courier - I just see them driving around the road; I don't see a lot of them, no.

PN587

Do you understand that many courier drivers essentially do the same thing as you though, pick up their commodity, they take it to the place they drop off. They have to maintain a relationship with the people they are dealing with. They use electronic scanning equipment to detail when things are dropped off and when things are not dropped off. Are you aware of that?---Well they - yes, parcel pick-ups, they do parcel-picks, yes.

PN588

Are you aware that milk carters, for example, do essentially the same thing as what you have just described. They pick up milk from a - either a large factory or they collect it from the various dairy farms and they take it back to the factory?---Yes.

**** GREGORY JOHN FREDERICKSON XXN MR DUFFIN

PN589

Are you aware that they generally do that sort of thing?---In the tankers?

PN590

Both tankers and smaller ones?---Well, they don't merchandise the milk though. They don't put the milk on the shelf.

PN591

No, they don't put the milk - well, actually, that is not quite true, there are some areas where they do?---Indeed, maybe - - -

PN592

But leaving that to one?--- - - - in milk bars but like, primarily, you wouldn't see a milkie put away milk in a Safeway supermarket.

PN593

But they do have a relationship with the client farmer or they deal with the relationship with the supermarket where it is appropriate?---At a store level - at a storeman's level with a storeman just so they can get checked in and out easier, yes.

PN594

So the main difference you are telling me so far is that you deal with the supermarket manager rather than the storeman, is that right?---Personally, in my cases, yes, yes, I do.

PN595

You know what coke drivers do?---Deliver coke.

PN596

Do you know where they deliver it to?---Basically to milk bars, yes.

PN597

Supermarkets?---Smaller independent supermarkets, most of the leading supermarkets, the bigger ones, they just get bulk loads through their warehouse, so - - -

PN598

But the small IGA ones?---Very, very small now and milk bars, very small.

**** GREGORY JOHN FREDERICKSON XXN MR DUFFIN

PN599

And they stack the coke in those places?---In the store - in the store room itself not in the shop.

PN600

No, actually in the store itself?---The coke driver actually - - -

PN601

The shop?---The coke driver actually goes into a milk bar and stacks it in their fridge for them, really?

PN602

I can take you to the 7 Eleven right next door to our offices, if you like?---Well, you learn something new every day, so, yes.

PN603

All of those people are drivers, are they not, they are all in the transport industry, they all have - - -?---They have got driver's licences, yes, they drive trucks.

PN604

They all have components of their job that involve merchandising or delivering their particular brand of product?---If you say, yes, it is - - -

PN605

The - I have nothing further, Commissioner.

PN606

THE COMMISSIONER: Very well, any re-examination?

PN607

MS McDONALD: Thank you, Commissioner.

<RE-EXAMINATION BY MS McDONALD [11.21am]

PN608

MS McDONALD: Mr Frederickson, you actually stack bread on the shop shelves themselves?---Yes, yes, and take returns as well, yes.

**** GREGORY JOHN FREDERICKSON RXN MS McDONALD

PN609

And what proportion of your job is this merchandising function, would you say?---Gee, I would say it is the best - probably the best part of our job is merchandising. We spend more time merchandising stores and stacking shelves than what we do driving, to be honest with you.

PN610

Thank you.

PN611

THE COMMISSIONER: Thank you, thank you for your evidence, Mr Frederickson, you are released from your oath and you are free to come and go as you please?---Thank you.

<THE WITNESS WITHDREW [11.22am]

PN612

MS McDONALD: Commissioner, will I proceed with the rest of my submissions now or - - -

PN613

THE COMMISSIONER: No, not now, I don't think, just not right now. Mr Duffin, how do you see it? Do you want to respond to everything, the submissions and the evidence or do you intend to call your evidence now?

PN614

MR DUFFIN: Well, I guess, we don't have any difficulty with calling our evidence now and then dealing with submissions following that stage, I think, Commissioner.

PN615

THE COMMISSIONER: You are happy to tender what evidence you will rely on in relation to these applications now?

PN616

MR DUFFIN: That is correct, Commissioner.

PN617

THE COMMISSIONER: Very well, well, let us do that then.

PN618

MR DUFFIN: We seek to call Mr Sandall - well, he is actually outside at the present time.

PN619

THE COMMISSIONER: Mr Sandall, just stand there for a moment please, in the witness box if you would be good enough please. Take either the oath or the affirmation as you choose.

<FREDERICK WILLIAM SANDALL, SWORN [11.23am]

<EXAMINATION-IN-CHIEF BY MR DUFFIN

PN620

THE COMMISSIONER: Yes, Mr Duffin?

PN621

MR DUFFIN: Thank you, Commissioner.

PN622

Mr Sandall, do you mind just stating your name for the record?---Frederick William Sandall.

PN623

Have you made a statement in this proceeding?---I have.

PN624

Have you got a copy of that there in front of you?---I have.

PN625

Have you read over it this morning?---Yes, I read through this morning.

PN626

Is it true and correct in every particular?---It is true and correct.

PN627

Commissioner, we seek to tender that statement.

EXHIBIT #TWU7 STATEMENT OF FREDERICK WILLIAM SANDALL

PN628

MR DUFFIN: Just arising out of some of the evidence from this morning, Mr Sandall, how did the drivers that are members of the TWU come to be members of the TWU?---In the later part of 2001 - when I say later part I would say around August, I had a phone call from one of the drivers stating that they were dissatisfied with the way things were going and they would like to have a meeting with the possibility of becoming TWU members.

**** FREDERICK WILLIAM SANDALL XN MR DUFFIN

PN629

How did they arrange that meeting?---After that first phone call nothing happened for about a month and I received another phone call over the same matter again, or over the same relationship with the yard, and the meeting was then convened at the Moe football ground club rooms which I attended and there was approximately 12 to 15 people at that meeting.

PN630

Why wasn't the meeting held at the Moe site?---I wasn't given permission to go on site.

PN631

After - sorry, when did the employees join the TWU?---If my memory serves me right either five or six joined on the day of the meeting and another two or three have joined over various occasions since with other meetings.

PN632

And the - since that time have you sought to have meetings with them on the site at Moe?---I have been and spoken to the manager at the Moe factory, Mr Nelson, and I was informed that the meeting - even though he was prepared to handle any information I may want to give the members, that I was not permitted on site - no, he didn't say, not permitted, I wasn't to be on site because they did not recognise the TWU as the relevant union.

PN633

Is that all that was said to you that they didn't recognise the TWUs relevance?---At that stage, it was, yes.

PN634

Okay, did - in your statement in paragraph 13 you say that you understand that the Vic Tas branch secretary of the TWU has written to the manager at Sunicrust. If the witness could be shown TWU5. Is that the letter that you are referring to in that paragraph?---That is the letter I was referring to, yes.

PN635

And if the witness could be shown TWU6, you say in your witness statement that the manager has written to the union refusing permission. Do you understand that to be the letter that - - -?---I understand that is the letter.

**** FREDERICK WILLIAM SANDALL XN MR DUFFIN

PN636

For drivers at Moe, where do they deliver to?---Pakenham - there are I believe, I was told this morning, from Pakenham to Bairnsdale and I believe there is one driver that comes to Clayton.

PN637

Approximately speaking how far is it from Pakenham to Moe?---Moe to Pakenham is approximately 70 or 80 kilometres, I would say.

PN638

And from Bairnsdale to Moe?---140 to 160 kilometres.

PN639

MR McDONALD: Well, I object to this, none of this arises out of anything that has transpired earlier in the morning. I must say, I came here under the understanding that these statements would stand as evidence-in-chief, as is the normal practice, and I have allowed Mr Duffin a little bit of leeway, but we seem to be heading off into entirely new territory now, which could have been dealt within the statement in the first instance, and responded to, if necessary.

PN640

MR DUFFIN: Commissioner, it arises out of the evidence of Mr Frederickson, when he said the majority of his work involved merchandising; for the drivers at Moe, a significant part of their work, probably the majority is those cases delivering to Bairnsdale, and also Pakenham, would involve driving. That is all that we were seeking to bring out by way of - I mean, the 140 kilometers is sufficient, I mean, I don't need anything further, as my friend's objection is seriously pursued in relation to - - -

PN641

THE COMMISSIONER: Yes, well I don't think that is objectionable. I think we can establish the distance between those towns by reference to a map of Victoria.

PN642

MR DUFFIN: Regrettably, Commissioner, I didn't bring one with me. I have nothing further, Commissioner.

**** FREDERICK WILLIAM SANDALL XN MR DUFFIN

PN643

THE COMMISSIONER: Yes, I think Mr McDonald - - -

PN644

MR McDONALD: I have no cross-examination.

PN645

THE COMMISSIONER: Very well. Ms McDonald.

<CROSS-EXAMINATION BY MS McDONALD [11.30am]

PN646

MS McDONALD: Mr Sandall, in performing their duties, what do most of your members in the region you look after, carry on their trips?---From what I have been told, they deliver bread around the supermarkets and the shops in the area that was mentioned before, and I presume that they would do their paper work on their dockets, delivery dockets, etcetera.

PN647

What about other members of your organisation that don't work for Quality Bakers?---Other members that don't work for Quality Bakers - well, as a truck driver they would be delivering the goods that they are delivery and they also would be delivering them to the shops or factories or wherever they are delivering and they would also be signing off on consignment notices and delivery dockets.

PN648

Can you give some examples of some of the goods that they would be delivering?---Yes, well we have got members in the Coke side of it, where they deliver to Coca-Cola. We have got - in the general transport we have members delivering to Safeway, for their goods, IGA, K-Mart.

PN649

In the area you look after, would most of the TWUs members come under the mixed industries, or the Long Distance Drivers' Award?---It is a mixture of both.

PN650

The original application by your union was for a roping-in award to the Mixed Industries Award, there is now an alternate application for your union to be a party to the current LHMU Award; do you know why that decision was made?---No I do not at this stage.

**** FREDERICK WILLIAM SANDALL XXN MS McDONALD

PN651

Which would you consider the more appropriate award as far as its classification, structure, terms and conditions?---I would be happy with anything that would allow me to service the members.

PN652

In paragraph 7 of your statement, you say that drivers at Moe expressed dissatisfaction to you about their wages and conditions, you say that it took a month for you to receive a second call from them. What was your response to that?---On the second call, before they became members, that I would come and talk to them and go through and I would put my position to them, what we could do and what we couldn't do, at that stage.

PN653

What sort of time frame was that, from - - -?---From when they first came into that meeting?

PN654

Yes?---As I said, probably a month, or maybe six weeks.

PN655

In paragraph 5 of your statement you say that you have 8 members at Moe, or roughly, to your knowledge, are they members solely of the TWU or are some of them joint members of both union?---As far as I know they all resigned from the LHMU, but I can't guarantee that.

PN656

In paragraph 10 of your statement you say that you have met with the drivers on 3 or 4 occasions, is this over the two years you have represented them?---This is over the period of time I have represented them. I have spoken to them as a group, three or four times, one of those occasions was outside the front gate of the yard.

PN657

And do you have much in the way of telephone communication with the - - -?---I have quite a few telephone information conversations, especially with the delegate, so and so here, I have got his phone number in my phone and have spoken to him, probably, I would say, on a basis of at least once a month.

**** FREDERICK WILLIAM SANDALL XXN MS McDONALD

PN658

In paragraph 13 of your statement you say that your secretary wrote to the manager at Moe, have you or anybody else at the TWU ever approached the LHMU about your assertions in paragraph 6 and 7 of your statement?---I haven't no. I am not too sure of anyone else who has.

PN659

If your union became a party to the award would you try to organise - recruit employees?---Can I have that question again, please?

PN660

If the TWU were successful in becoming a party to the award, would you try to recruit members?---I would be endeavouring to look after the members that I have got because I believe in retaining more so than increasing, but I definitely would be trying to look after - - -

PN661

Rather than recruiting new members?---Yes. And if they came to me to want to join, by all means, but I would not be going out there to chase them.

PN662

In paragraph 15 of your statement you say that Tip Top sought to contract out and the employees were placed in Traralgon, and you negotiated the transfer of those two employees?---The negotiation of the transfer is - what I did there is I went down there and I spoke to the members and the members there were quite happy with what was happening with the contractors and two of them moved down to Dandenong.

PN663

So the rest of them stayed with the contractor?---The rest of them stayed there and they are still there.

PN664

Would you say you have heard of any bread carters being killed, or badly injured?---Not in my time.

PN665

So the two Tip Top employees that travel from Traralgon to Dandenong, are they on 6 or 7 days a weeks?---I believe the have transferred and are living in the Dandenong area, they are no longer living down Gippsland.

**** FREDERICK WILLIAM SANDALL XXN MS McDONALD

PN666

Do you know how many days a week they work?---No, they are out of my area and I don't have contact with them.

PN667

So an other organiser would be servicing that area?---That is right.

PN668

Have you attended any of their consultative committee meetings that were offered in the letter from Mr Nelson, the bakery manager, about a year ago?---No, I have never been privy to any of those meetings.

PN669

Have any of your members?---I believe that a couple of them have been to the meetings, but what results, they are not that happy about.

PN670

Thank you?---Thank you.

PN671

THE COMMISSIONER: Mr Duffin?

PN672

MR DUFFIN: We have got no further evidence to lead, and there is nothing that comes out of that.

PN673

THE COMMISSIONER: Thank you for your evidence, Mr Sandall. You are released from your oath and you are free to come and go as you please.

<THE WITNESS WITHDREW [11.36am]

PN674

THE COMMISSIONER: I am just considering whether I will requiring the submissions to be filed in writing.

PN675

MR McDONALD: Well, I am in a position to make submissions now, I am in the Commission's hands. There is not a lot of material that has been led today, over and above the written material.

PN676

THE COMMISSIONER: That is one of the reasons why I think it may be, in the interests of clarity, desirable to have the submissions filed in writing. There seems to me to be a fairly expeditious and succinct summary of the matters before me, if I could have the submissions in writing.

PN677

MR McDONALD: Well, I am certainly in a position to proceed on that basis.

PN678

THE COMMISSIONER: But it may actually be more efficient for the parties to do it in their offices rather than to get involved in some potential digression in a verbal submission scenario.

PN679

MR McDONALD: Yes. Well, I am quite content, Commissioner, to proceed on that basis.

PN680

THE COMMISSIONER: All right, thank you.

PN681

MR McDONALD: We will file the submission by - is close of business tomorrow - is that - - -

PN682

THE COMMISSIONER: Certainly, yes that is fine. I have to travel, and won't be back in Melbourne until the later part of next week in any event, so I couldn't even look at it until the week after that, I am sitting on both days.

PN683

MR DUFFIN: Commissioner, the only thing I would probably say is that it may be appropriate to get transcript before providing those submissions. It may be that Mr McDonald's timetable is fractionally ambitious, given the time that sometimes can - - -

PN684

THE COMMISSIONER: Well, I think he is trusting his recollection of what the witness has said for the purpose of his case.

PN685

MR McDONALD: Yes, that is so.

PN686

MR DUFFIN: For an experienced advocate I think you can get away with that; for us inexperienced union people it can sometimes take us a little longer.

PN687

THE COMMISSIONER: Yes. Well, I think the key for you is not so much Mr McDonald's election, but the time that you would require to respond to it. As I say, I will be away until late next week, in any event, after tomorrow, and I will be sitting in the latter part of the week, all day, each day. I may have some time in the following week to start to look at the matter, so under those circumstances, what do you propose?

PN688

MR DUFFIN: Well, perhaps I guess the middle of next week, Wednesday/Thursday is probably - pending my friend, Mr McDonald's approach, which I suspect would be to be served at the same time as Mr McDonald's. It is bit of a clan McDonald that is stuck in here - - -

PN689

MS McDONALD: We are not related. Commissioner, I am sort of travelling a lot at the moment. If I could possibly have until Thursday, I am sorry to do that.

PN690

THE COMMISSIONER: All right. Well, let us say that the ALHMWU and the - well, it does place you in a slightly different situation, doesn't it Mr Duffin, because you have got to see the ALHMWUs submissions.

PN691

MR DUFFIN: That is correct, Commissioner.

PN692

THE COMMISSIONER: Ms McDonald, I understand, you know, the demands of travel, but you will have this afternoon, and you were ready to go a little while ago. Is there any reason why you cannot write it down this afternoon.

PN693

MS McDONALD: If we are finishing - that is fine, it is just that my office is in Sydney. If I could - close of business tomorrow.

PN694

THE COMMISSIONER: And Wednesday for you, Mr Duffin.

PN695

MR DUFFIN: Thank you, Commissioner.

PN696

THE COMMISSIONER: Very well. Thank you - - -

PN697

MR McDONALD: And could I have a right to reply by close of business the following Friday, to Mr Duffin?

PN698

THE COMMISSIONER: Yes. That means that by the end of next week all of the submissions will have been filed and I direct accordingly, and I will reserve my decision in light of those submissions. Thank you.

ADJOURNED INDEFINITELY [11.40am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #TWU1 MODIFIED FORM OF ORDER PN338
EXHIBIT #QB1 WITNESS STATEMENT OF GRANT GALVIN DATED 11/2/2003 INCLUDING EXHIBITS PN344
EXHIBIT #QB2 WITNESS STATEMENT OF DAVID JEFFRIES DATED 11/2/2003 INCLUDING EXHIBITS PN345
SIMON JOHN CAMPBELL, SWORN PN362
EXAMINATION-IN-CHIEF BY MR McDONALD PN362
CROSS-EXAMINATION BY MR DUFFIN PN376
EXHIBIT #QB3 STATEMENT OF S.J. CAMPBELL PN378
EXHIBIT #TWU2 AGREEMENT T2180 PN391
EXHIBIT #TWU3 ACT AGREEMENT PN396
EXHIBIT #TWU4 QUEENSLAND AGREEMENT PN406
EXHIBIT #TWU5 LETTER FROM TWU TO P. NELSON PN438
EXHIBIT #TWU6 LETTER ADDRESSED TO S.J. CAMPBELL PN444
CROSS-EXAMINATION BY MS McDONALD PN490
WITNESS WITHDREW PN501
EXHIBIT #QB4 COPY OF TRANSPORT WORKERS MIXED INDUSTRIES AWARD PN502
EXHIBIT #QB5 DOCUMENT COMPARING KEY PROVISIONS OF THE MIXED INDUSTRIES AWARD PN503
PETER McNEILL, SWORN PN514
EXAMINATION-IN-CHIEF BY MS McDONALD PN514
EXHIBIT #ALHMWU1 WITNESS STATEMENT OF MR McNEILL PN521
CROSS-EXAMINATION BY MR DUFFIN PN543
WITNESS WITHDREW PN556
GREGORY JOHN FREDERICKSON, SWORN PN557
EXAMINATION-IN-CHIEF BY MS McDONALD PN557
EXHIBIT #ALHMWU2 WITNESS STATEMENT OF GREGORY FREDERICKSON PN563
CROSS-EXAMINATION BY MR DUFFIN PN582
RE-EXAMINATION BY MS McDONALD PN608
WITNESS WITHDREW PN612
FREDERICK WILLIAM SANDALL, SWORN PN620
EXAMINATION-IN-CHIEF BY MR DUFFIN PN620
EXHIBIT #TWU7 STATEMENT OF FREDERICK WILLIAM SANDALL PN628
CROSS-EXAMINATION BY MS McDONALD PN646
WITNESS WITHDREW PN674