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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N 7024
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
DEPUTY PRESIDENT HAMILTON
C2004/2837
APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION
Application under section 127(2) of the Act
by Automotive, Food, Metals, Engineering,
Printing and Kindred Industries Union for an
order to stop or prevent industrial action
at Masterfoods Australia New Zealand -
Snackfood
MELBOURNE
2.15 PM, MONDAY, 10 MAY 2004
Continued from 6.5.04
PN1850
PN1851
THE DEPUTY PRESIDENT: Mr Hale.
PN1852
MR HALE: Thank you, your Honour.
PN1853
On the last occasion we were here I asked you a question in relation to Darren Everitt's personnel file. Do you remember there that you said:
PN1854
I did note that the one done for the 2003 year was done late. It was actually signed in January this year.
PN1855
Do you remember that part of the evidence?---I do.
PN1856
Okay. Now, have you revisited Darren Everitt's file since then?---Not his whole personnel file, no.
PN1857
Did you have a look at those appraisals?---Yes.
PN1858
Okay. Did you specifically have a look at who had signed them and how many were signed?---Not who but I did notice there was one in the five that wasn't signed.
PN1859
By anyone?---No, not by Darren or his line manager. It was signed by a personnel person and the operations manager at the time.
PN1860
Okay. So of those, of the last five years, how many appraisals would Darren have received a pay rise from?---I don't now.
PN1861
Okay.
**** KATRINA SAUNDERS XXN MR HALE
PN1862
THE DEPUTY PRESIDENT: Where are we going with this? What is the relevance of it? The appraisals of a witness, I might be right wrong but I am just not clear.
PN1863
MR HALE: Well, what it is, is in relation to the appraisals and I was going to ask a couple of more questions, but in relation to the appraisals and the skills, unless you get both the appraisal and the skill under the current system you don't get a pay rise. So Darren Everitt gave evidence that he hadn't received a pay rise for - - -
PN1864
THE DEPUTY PRESIDENT: I can recall that.
PN1865
MR HALE: Yes.
PN1866
THE DEPUTY PRESIDENT: But why is that relevant to a section 127 application?
PN1867
MR HALE: Well, what we would say is that that is consistent with the company taking industrial action or putting pressure on employees to return the system under which they are currently operating.
PN1868
THE DEPUTY PRESIDENT: All right, I will be guided by you. If it is relevant I will be guided by you, Mr Hale. Please continue.
PN1869
MR HALE: Now, on the last occasion in relation to once again Darren Everitt, you gave evidence that you spoke with his shift manager and his words were he was taking to the associate about leaving early and he told the associate he couldn't. Was that correct or were you in fact talking about someone else on that occasion?---I don't know what part you are talking about. I remember the conversation with - I remember the part of the thing but - - -
**** KATRINA SAUNDERS XXN MR HALE
PN1870
If I just read a bit. It is paragraph number 1707, over the page, and it says:
PN1871
So I spoke to that shift manager. His words were he was talking to the associate about leaving early and he told the associate he couldn't. The associate told the line manager that one of the organisers told him to leave whether or not he had permission. The line manager then said to him that if you do that we will follow it with consequences later.
PN1872
Were you talking about Darren Everitt then or were you talking about somebody else?---I think I was talking about Darren.
PN1873
Okay. Would it surprise you if Darren says that - well, first of all, the line manger, is that Avin Krishnan?---It is.
PN1874
Okay. Would it surprise you if Darren were to say that in fact that was Keith Morrow, not himself?---Okay. I thought it was a Darren. I have had a conversation with Avin. I know he had a conversation with two or three of the delegates that night.
PN1875
Now, you said that you had discussions with individual associates that were having problems and I believe you said there was four of them that approached you?---Yes.
PN1876
Okay. Can you tell me what you have done in relation to helping those people to resolve those problems?---For each of the individuals?
PN1877
Yes?---One was about not wanting to move because it affects her super, because she is going to retire into the near future.
**** KATRINA SAUNDERS XXN MR HALE
PN1878
Yes?---I have told her that I will look into that and we will see as a business what we can do to protect super for people due to retire soon. I am still looking into that. Another associate was uncertain about how it would affect her with child care and her husband also worked at Masterfoods on a different shift pattern, on the three shift pattern on a different shift. So she was uncertain how it would affect her, so I have actually worked with her to find - and she works job share. So I have actually worked with her to find hours and a shift that suit her in terms of child care and still allows her time at home with her husband.
PN1879
Okay. So you moved her to a shift, another shift?---I think we actually tried about three different ones but we have found that she was quite happy with.
PN1880
So is that three shift or four shift, the new shift?---Three shift.
PN1881
Okay. So you found her another three shift?---Yes.
PN1882
So her problem wasn't in relation to income, it was in relation to the hours available?---Yes.
PN1883
Okay. What other?---I have had another associate speak to me because he felt it was unfair that he was moving because he only moved about November last year. I at the time told him that he was part of the Bite Size wrapping room and he knew that when he moved into that role and that he would need to move and at the time he said to me, you know, "I don't expect my conversation to change much but I would like you to know that I don't want the change." And the fourth one was another associate with job share and about who was going to be her job share partner and how she would work out hours in the week around child care and we have worked hours in the week for her that she can fit with child care.
PN1884
Okay. So you have managed to do the job share ones, but they are really the only ones that you have managed to be able to do anything for, is it?---Well, there is only one outstanding which is the one we are looking into with someone's super.
**** KATRINA SAUNDERS XXN MR HALE
PN1885
Right. So there is one outstanding and that was a complete knock back?---Well, he actually didn't have a request for anything. He said at the time, "I'm telling you this so you understand I'm not happy with the change."
PN1886
So you didn't see that that was that he was saying that he had a problem with the change?---Yes, he told me he wasn't happy with the change.
PN1887
Okay. So you didn't feel you were under any obligation to do anything for him?---I explained to him that he was a part of Bite Size and that he would need to move, but he didn't have any other reason other than not being happy with the change because he had moved recently.
PN1888
Okay. And is it still your view that the people in the area were expecting that change?---Yes.
PN1889
Okay. And that they are still expecting the change as far as you are concerned?---They have changed.
PN1890
Yes?---Yes.
PN1891
Okay. In relation to the letter that was signed by Jason but I think you said on the last occasion that you had done it up or something, had you?---No, I think I explained it was a pro forma that we use and then the details for each specific change get put in and that was done by Jason.
PN1892
Isn't that the pro forma letter that is used when people are being transferred from a short term contract to a permanent employee?---No, we use it for all sorts of change.
PN1893
But you do use it for that change?---We do use something. I couldn't tell you off the top of my head if it was exactly the same or not.
**** KATRINA SAUNDERS XXN MR HALE
PN1894
What if I put it to you that in fact this is the first time that any letter has been given to people who change shift, what would you say to that?---I would say I would disagree. I know when these Bite Size people went to four shift in April, or whenever it was last year, they were given a letter that said you will be doing this change.
PN1895
Okay. So you didn't see that there was really a need to put out that letter, it was more that the letter was a standard letter that would go out?---Pardon, sorry, what are you asking?
PN1896
Well, did you see that there was a need for that letter to go out?---There is a need when there is a change done, yes.
PN1897
And what is that need?---A need for people to understand where they are going, what the requirements are.
PN1898
Okay. In your witness statement - have you got your witness statement?---I haven't got a copy, no.
PN1899
THE DEPUTY PRESIDENT: Exhibit H5, is it?
PN1900
MR HALE: Yes, it is, your Honour. At point 511 you say:
PN1901
The AMWU has not sought to facilitate the resolution of its alleged dispute through the dispute resolution procedure under the award.
PN1902
Now, do you still stick to that?---Yes.
PN1903
Okay. Now, why do you say that?---The same as the same way we spoke about last time, all the steps in the dispute resolution procedure weren't followed.
**** KATRINA SAUNDERS XXN MR HALE
PN1904
Okay. So you looked at it and decided that the letter from Linda Pope didn't apply to the settlement of disputes procedure because the steps in the settlement of disputes procedure hadn't been followed?---Yes.
PN1905
So you specifically did that?---I thought about it, yes.
PN1906
So when you got the fax, was it, from Linda Pope on the 8th I think it was?---Yes.
PN1907
When you got that fax your thought process, well, they are not following the settlement of disputes procedures because they haven't gone through the steps?---I can't tell you exactly what my thought process was but it was thought about at that time, yes.
PN1908
So you actually, by reading that note, it did trigger you to think about the settlement of disputes procedure?---I note, yes.
PN1909
Okay. So it did trigger you to do that?---Yes.
PN1910
Did you go and have a look at the settlement of disputes procedure?---I noted the disputes resolution procedure but I can't tell you whether I specifically looked at it at that time or not.
PN1911
Okay. You didn't raise with Linda Pope or any of the shop stewards that the union hadn't been following the settlement of disputes procedure?---I did send a return fax to Linda when I received that one.
PN1912
Saying that they didn't - that the union hadn't been following the settlement of disputes procedure?---It was saying the status quo would remain but we were happy to discuss the rationale for the change.
**** KATRINA SAUNDERS XXN MR HALE
PN1913
The status quo would remain or wouldn't remain?---Wouldn't remain.
PN1914
Okay. But you didn't mention the settlement of disputes procedure in that?---Not that I can recall, no. I haven't got a copy of it but.
PN1915
Okay. At 7.5 you say:
PN1916
Masterfoods is prepared to consider an address the legitimate concerns that the AMWU may have about the impact of the proposed change on associates.
PN1917
Wasn't that only when you were given specifics in relation to individuals?---To address the issues we needed to know what the issues were, yes.
PN1918
Right. But you wanted more than just the issues. You wanted the specifics of the individuals names, didn't you?---Names, details about what the issues were, yes. We can't address the issues without the issues being raised.
PN1919
But couldn't it be an issue with a 32 per cent reduction in income?---And we could help them through that if that was the case.
PN1920
That was the case, wasn't it?---It was brought up with me as loss in pay. Now, 40 people are going to be affected by loss in pay differently. So without some detail around how that loss in pay is going to affect someone I struggle to see how we can actually address any outstanding issues.
PN1921
I have no further questions of the witness, your Honour.
PN1922
THE DEPUTY PRESIDENT: Thank you very much, Mr Hor. Any re-examination? I am sorry, you had some questions. I forgot, my apologies.
**** KATRINA SAUNDERS XXN MR HALE
PN1923
MR JOSE: Your Honour, yes. I will try and be brief.
PN1924
PN1925
MR JOSE: Ms Saunders, in your written statement here in 4.1 you identify that the Confectioners Award 2002 applies to the employment of associates at the Ballarat plant. Are you suggesting that that is the only award that is applicable or do you also acknowledge that the Metals Award applies to those associates who are by definition tradespeople?---In the case of this 4.1 the Confectioners Award applies to everyone affected by this change.
PN1926
Well, what if I said to you that there are at least two employees who are, as you would call, ops techs, operations technicians who were effected by this, that they would be covered by the Metals Award, do you accept that or not?---There has always been some uncertainty around that but the role that they do in this Bite Size wrapping room is 85 per cent, if not more, as covered by the Confectioners Award, so that is the award we apply to them in this case.
PN1927
Well, putting the debate about what percentage of work is what, do you acknowledge that these people are tradespeople and would do maintenance roles when required by the company?---Yes.
PN1928
Okay. Based on that do you accept that they are covered by the Metals Industry Award and by definition of their trade that that is the only award that they are covered by the Food and Confectioners Award doesn't cover that classification, do you accept that?---No, sorry. My understanding is that the majority of their role that they perform in this Bite Size wrapping room is as confectionery packers which is covered by the Confectioners Award.
PN1929
Okay. Are you familiar with the Metals Industry Award?---I know bits and pieces. I don't know it in a lot of detail, no.
**** KATRINA SAUNDERS XXN MR JOSE
PN1930
All right. Can I take you to the disputes resolution procedure which is clause 3.2?---I don't have a copy of it.
PN1931
You haven't got your folder there.
PN1932
THE DEPUTY PRESIDENT: Attachment 6, isn't it, to exhibit H2? Does someone have a folder for the witness? We have, it is all right. The witness has been handed exhibit H2?---What am I looking at, sorry? What clause was it.
PN1933
MR JOSE: Clause 3.2. It is titled the disputes resolution procedure?---Yes.
PN1934
Could you say whether you are familiar with that particular provision in this award?---I have read it but not as far as familiar, as I said, with anything like the Confectioners Award.
PN1935
Okay. Let me take you to clause 6.1.4(c) in the same award?---Six point?
PN1936
1.4(c)?---Yes.
PN1937
Ms Saunders, it says there that:
PN1938
By agreement between an employer and the majority of the employees in the enterprise, or part of the enterprise concerned, 12 hour days or shifts may be introduced subject to...
PN1939
And it goes on through a number of dot points. Historically when Mars has introduced 12 hour shifts has it done so on the basis that it has sought agreement with the employees or has it simply made a decision based on forecasting and employees have just been given notice and have just automatically converted to the 12 hour rosters?---With the introduction of 12 hours initially, or are you talking shift changes like this one?
**** KATRINA SAUNDERS XXN MR JOSE
PN1940
I am talking more specifically any time whether it be on a regular basis or historically people have been transferred from a set shift onto 12 hour shifts?---For a change in shift with our existing shift patterns, no, but I couldn't talk to you about when the shift pattern was introduced initially. I don't know what happened then.
PN1941
Would you agree that every time there is a change back onto 12 hour shifts that you should seek agreement with the associates?---My understand is no. We do a lot of consultation but not seeking agreement.
PN1942
And where do you get that understanding from?---Again they are covered by the Confectioners Award.
PN1943
Ms Saunders, let me take you to clause 2.2.7. Sorry to bounce around. Actually, sorry, let me take you back to 2.2.4(a)?---Yes.
PN1944
You might see that if you go down a number of lines it makes reference to 12 hour shifts?---Yes.
PN1945
And that in fact the introduction of 12 hour shifts under the Metals Award is what they call a facilitative provision which means that you should have agreement before you can introduce that. Now, if you go to 2.2.7?---Mm.
PN1946
It says:
PN1947
In the event that a dispute or difficulty arises over the implementation or continued operation of a facilitative provision the matter will be handed in accordance with the disputes resolution procedure in clause 3.2.
PN1948
Which is the general disputes procedure which is identified in the award?---Yes.
**** KATRINA SAUNDERS XXN MR JOSE
PN1949
Now, I don't want to complicate things or make it any more confusing, but if you go down to 3.2.1(c), if you go to the last sentence in that whole clause where it starts, "In the event"?---Yes.
PN1950
It says there, Mr Saunders:
PN1951
In the event there is no agreement to refer the matter to a more senior level, or it is agreed that such a reference would not resolve the matter -
PN1952
And that relevance to that is that it says that if, you know, an organiser or a senior manager of the company can't resolve the dispute that it could be taken to a higher level -
PN1953
or if it is agreed that such a reference would not resolve the matter the parties shall jointly or individually refer the matter to the Industrial Relations Commission for assistance in resolving the matter.
PN1954
Isn't it correct, Ms Saunders, that that is exactly what the AMWU did on this issue, that we sought to resolve it at a local level, Mr Pope sent you a letter notifying you that we were in dispute, we had that discussion on the 27th, clearly the company had a view that it was simply going to go ahead with this change and in fact the AMWU has followed the disputes settlement procedure? I put it to you that it has been the company that has not followed the disputes settlement procedure in respect to, and I make that quite clear, in respect to those associates who by definition are tradespeople and are covered by this award. Do you agree or disagree?---Again I disagree. The majority of the people in this room, or the people in this room work as confectioners and, you know, in my view have been covered by the Confectioners Award.
[2.41pm]
PN1955
Where do you see the application of the Metals Industry Award at Mars?---Well, same standing as for this one. If an associate has a role and the majority of the role that they perform is covered by this award.
**** KATRINA SAUNDERS XXN MR JOSE
PN1956
So let me hypothetically, I am trying to understand, if somebody who is a trades person by definition in a three month period predominantly does more production than tradespeople, than a trades role, you are saying that for that period they are covered by the Food and Confectionery Award, but if they go into another area and they predominantly spend 80 per cent of their time doing a maintenance role that they are then automatically covered by the Metals Award, is that what you are saying, that they can be bounced around according to the company's expectations?---Again, yes. If their role is covered, what they do in that role.
PN1957
Okay. Ms Saunders, in your written statement on 5.16?---In which one, sorry?
PN1958
5.16?---Yes.
PN1959
On your first dot point there you have got:
PN1960
I asked the AMWU delegates on numerous occasions to stipulate the particular issues which they wanted to see addressed.
PN1961
Just so I understand, are you suggesting that that wasn't done at that meeting or are you saying that there was some issues that were raised?---As I said before, the issues raised were drop in pay or family considerations and without specific details around what they are to the relevant 40 people we don't have anything to address and there were no specifics raised.
PN1962
Okay. If you go to the next dot point you say there quite clearly:
PN1963
The AMWU delegates did not put forward any specific issues.
PN1964
Do you stand by that comment?---Yes.
**** KATRINA SAUNDERS XXN MR JOSE
PN1965
Is it not true that during that meeting that there were some issues put to you and at one stage even while you were writing down these issues and Ms Pope was identifying them that you even asked her to slow down because you couldn't keep up with what she was saying and those issues, I will try and remind you, were things like we have talked about the drop in wages, lifestyle issues, concerns about some employees who were on a job sharing provision, the impact on annual leave and long service leave calculations and then there was the other issues about the question of the success and I guess the track record of the company's forecasting in the past and so on. Isn't it true to say that those issues were raised?---Yes, they were exactly as you just raised them, but again, family considerations and lifestyle means different things to 40 different people and without issues being raised that we can actually address there is not much we can do and nothing more specific was given to us.
PN1966
I am a little bit confused, Ms Saunders. How specific did you want those issues to be put to you? I mean I would have expected that somebody saying to you that an associate who is now facing a potentially 25 to 30 per cent wage cut that is an issue. I am not sure how much more specific you would require somebody to be?---Well, what does it mean to them? What can we do to help them?
PN1967
I don't think they would be overjoyed, I think that is quite common to expect. I have no further questions, your Honour.
PN1968
THE DEPUTY PRESIDENT: Thank you very much. Now I think it is your turn to Mr Hor.
PN1969
MR HOR: Thank you, your Honour.
PN1970
**** KATRINA SAUNDERS RXN MR HOR
PN1971
MR HOR: I will be brief again, your Honour.
PN1972
Just in relation to Mr Jose's questions, Ms Saunders. So I understand your evidence to be that on the basis of the large percentage of the work done by operations technicians that it is your view that they are covered by the Confectioners Award, is that right?---Yes.
PN1973
Hypothetically, if it was the case that any of the Bit Size wrapping room associates were to be covered by the Metals Award, is it your view that requiring those associates to work three shifts as they currently are working is a breach of the Metals Award?---No.
PN1974
Thank you, your Honour, I have nothing further.
PN1975
PN1976
THE DEPUTY PRESIDENT: Right.
PN1977
MR HOR: We have no further witnesses, your Honour.
PN1978
THE DEPUTY PRESIDENT: That is the completion of your evidence?
PN1979
MR HOR: That is the completion of our evidence.
PN1980
THE DEPUTY PRESIDENT: Terrific. Nothing further in terms of evidence so now we come to submissions I think starting with the applicant. Mr Hale, what I would like to do is - how long will you take, Mr Hale?
PN1981
MR HALE: I don't know, my estimates haven't been that good to date, your Honour. Possibly half an hour to three quarters of an hour.
PN1982
THE DEPUTY PRESIDENT: I was about to say that given the nature of the case it should be possible for a party putting its case succinctly and with some direction, if I could put it that way, to put it within half an hour each I would have thought, but I might be wrong. I mean I would be guided by you and there may be questions of course which lengthens the process and that would be my fault. Nevertheless.
PN1983
MR HALE: I didn't do a dress rehearsal, your Honour.
PN1984
THE DEPUTY PRESIDENT: No, I take your point, Mr Hale. Please take as long as you need but I would ask the parties to try and direct this matter, it has been going on for some time, to try and direct their submissions to relevant issues and be, to some degree, succinct if that is possible. Thank you very much.
PN1985
MR HALE: Thank you. Your Honour, section 127 of the Act sets out at 127(1) that -
PN1986
The Commission may make orders if it appears to the Commission that the industrial action is happening ...(reads)... stop or not occur.
PN1987
The industrial action, I will need to go to the definition of industrial action so if I deal with the others first. There is an industrial dispute. There is currently the negotiation or proposed negotiation of an agreement.
PN1988
THE DEPUTY PRESIDENT: Sorry, the industrial dispute is what, the dispute found in the Confectioner Award?
PN1989
MR HALE: Yes.
PN1990
THE DEPUTY PRESIDENT: There is that.
PN1991
MR HALE: There is the formal dispute that has been found but we would say that there is also a dispute in relation to the conditions of employment arising from the terms of that condition.
PN1992
THE DEPUTY PRESIDENT: I understand. But it is also work covered by the Confectioners Award, isn't it?
PN1993
MR HALE: That is correct.
PN1994
THE DEPUTY PRESIDENT: Right. Well, that is not in dispute, is it?
PN1995
MR HOR: Not at all, your Honour.
PN1996
THE DEPUTY PRESIDENT: No. Well, I think you have got that hurdle.
PN1997
MR HALE: Yes. I think, and I was going to go through them, but I think that the only thing that is likely to be in dispute in relation to 127(1) is - - -
PN1998
THE DEPUTY PRESIDENT: Industrial action.
PN1999
MR HALE: Yes, whether it is an industrial dispute.
PN2000
THE DEPUTY PRESIDENT: Whether there is industrial action occurring or threatened, impending or probable. That is the issue in dispute, isn't it, and you say the change in shift is industrial action and they say it is not?
PN2001
MR HALE: Well, that is reading through the outline of submissions that the company has put. That is my understanding of it.
PN2002
THE DEPUTY PRESIDENT: Right.
PN2003
MR HALE: If the company were to put up something further I would like to say more about it. I am working on the assumption that that is the only thing in relation to 127 that is in dispute.
PN2004
THE DEPUTY PRESIDENT: Well, perhaps we can clarify that. Mr Hor, is that correct? Is that the issue?
PN2005
MR HOR: That is my understanding of the issue, your Honour, and subject to what Mr Hale addresses in his submissions, I intend to stick pretty close to the outline that was submitted.
PN2006
THE DEPUTY PRESIDENT: Thank you for that. That may help you a bit, Mr Hale, I hope.
PN2007
MR HALE: Yes, thank you. So that the definition of the industrial action which is in section 4 of the Act in part A:
PN2008
The performance of work in a manner different from that which is customarily performed ...(reads)... performance of the work.
PN2009
We say that it relates to the performance of work in a manner different from that which it is customarily performed. Now, the way in which the work had been customarily performed in that area was by the working of continuous shifts over a 12 hour period and that custom had been in place since at least, on the company's evidence, 2003. So there had been a significant period whereby people were working in that manner.
PN2010
THE DEPUTY PRESIDENT: So from the introduction of 12 hour shifts that became the custom, is that right?
PN2011
MR HALE: That is correct.
PN2012
THE DEPUTY PRESIDENT: Right. And that was what, April, something like, April 2003?
PN2013
MR HALE: I think that is what the evidence will show, that it was early 2003.
PN2014
THE DEPUTY PRESIDENT: I think somebody said April.
PN2015
MR HOR: I think it is February, your Honour.
PN2016
THE DEPUTY PRESIDENT: February 2003?
PN2017
MR HOR: Yes.
PN2018
THE DEPUTY PRESIDENT: Yes, so there is some difference in I think some of the witnesses. Yes.
PN2019
MR HALE: Yes.
PN2020
THE DEPUTY PRESIDENT: All right. So the word customarily performing refers to the period since February 2003.
PN2021
MR HALE: That is correct. We say that the evidence is not inconsistent between the two parties in relation to that the work has actually changed, or that the performance of the work, or the manner in which the work has performed has changed. So that both parties are in agreement that come the 2 May the shifts changed from being worked on a continuous shift to being worked on the three shift operation.
PN2022
THE DEPUTY PRESIDENT: Does this issue really turn on whether or not the direction made by the employer was consistent with the award, or the awards?
PN2023
MR HALE: Well, that is - - -
PN2024
THE DEPUTY PRESIDENT: Is that really the real guts of it?
PN2025
MR HALE: That is one factor of it in that the Commission should exercise its discretion where there is a breach of the award and we would say that there si - - -
PN2026
THE DEPUTY PRESIDENT: Sorry, perhaps I - I am sorry to interrupt you again but I want to get this right so that I understand it. As I understand it the issue I have to determine is this, it may be industrial action if it is in breach of the award, if what the employer did is in breach of the award. So Masterfoods breached the Confectioners Award and/or breached the Metals Award in changing shifts as they did, then that may be industrial action. However, if they acted in conformity with either or both of those awards then it isn't industrial action, rather it is exercising an award right or procedure, is that right? Is that a fair way to characterise it?
PN2027
MR HALE: No, I wouldn't go that far. What I would say is that in our submission it is industrial action anyway.
PN2028
THE DEPUTY PRESIDENT: So whether it is in breach or not?
PN2029
MR HALE: Yes, but if it is in breach - - -
PN2030
THE DEPUTY PRESIDENT: Well, what do you then do about the AMWU v Holden case? Well, you will come to that. All right.
PN2031
MR HALE: If it is in breach we would then say that it is illegitimate industrial action so that - - -
PN2032
THE DEPUTY PRESIDENT: Okay. So it goes to legitimacy points within Coal and Allied?
PN2033
MR HALE: That is correct, your Honour.
PN2034
THE DEPUTY PRESIDENT: Right.
PN2035
MR HALE: So that what we are saying is that the company has set about to use this method of bringing their employees to heel. So through that we would say that it is industrial action whether it is in fact something that they could have legitimately done under the award anyway.
PN2036
THE DEPUTY PRESIDENT: Yes.
PN2037
MR HALE: But the Commission would take the award breach into account in determining whether there it is illegitimate industrial action and the Commission then exercises its discretion to overcome, or to stop that illegitimate industrial action.
PN2038
THE DEPUTY PRESIDENT: But it can't be industrial action if in fact it is consistent with the award, can it? They are just exercise an award right. I mean there seems to be Full Bench authority to that effect.
PN2039
MR HALE: I would be thinking possibly in the reverse from a union point of view. A work to rule could probably be considered industrial action even though all they were saying was they would work in accordance with the terms of the award rather than work in the customary practice which may well have been to work in excess of the award. Now, I am not trying to set new precedent in relation to it. I guess I am just making the distinction that we would say and our position is that they are in breach of the award anyway, so that - - -
PN2040
THE DEPUTY PRESIDENT: I think that last proposition of yours may be inconsistent with Full Bench authority but I might be wrong about that.
PN2041
MR HALE: Well, I guess in our submission not a lot turns on it because we are saying, and I will get to it in a sec - - -
PN2042
THE DEPUTY PRESIDENT: No, I do. Yes. Well, something may turn on it because if you lose the second point - or if you lose the first point as to whether or not it is breach of an award then I do need to deal with your other submission, don't I?
PN2043
MR HALE: Yes.
PN2044
THE DEPUTY PRESIDENT: I have to deal with it and these are legal issues. There is not a lot of flexibility in them. It is not a lot of merit type issue in them. It is a legal issue and I have to deal with it so I would like your views on it.
PN2045
MR HALE: Okay.
PN2046
THE DEPUTY PRESIDENT: Or not. You don't have to deal with all issues if you don't wish to.
PN2047
MR HALE: I haven't researched in relation to that particular point.
PN2048
THE DEPUTY PRESIDENT: Well, I am in your hands. If you don't wish to put a submission on it I will not press you because it is for you to put your case.
PN2049
MR HALE: Yes.
PN2050
THE DEPUTY PRESIDENT: I will just deal with it on whatever I have from the other side or whatever. Yes.
PN2051
MR HALE: Yes. In relation to the breach of the award, we say that there are - and this in relation to the Confectioners Award, we say that there are two parts in which there are a breach. One is that the company has breached the settlement of disputes procedure in the award.
PN2052
THE DEPUTY PRESIDENT: Right.
PN2053
MR HALE: Now, that is clause 6 of the award and - - -
PN2054
THE DEPUTY PRESIDENT: How has it breached it, the status quo provision?
PN2055
MR HALE: Yes, it has breached the status quote provision which is 6.9 which says:
PN2056
Whilst procedures in negotiation and conciliation are being followed other ...(reads)... shall be strictly maintained.
PN2057
Now, there doesn't seem to be a lot of room for any ambiguity in that clause.
PN2058
THE DEPUTY PRESIDENT: Has the dispute settlement procedure been invoked on the evidence?
PN2059
MR HALE: Yes, we say on the evidence the settlement of disputes procedure had been invoked and it had been invoked by the letter of Ms Pope to the - - -
PN2060
THE DEPUTY PRESIDENT: Dated 8 April 2004 which is tab 1 of exhibit H2.
PN2061
MR HALE: That is correct.
PN2062
THE DEPUTY PRESIDENT: It doesn't mention the disputes procedure, does it?
PN2063
MR HALE: Well, it mentions the status quo remaining.
PN2064
THE DEPUTY PRESIDENT: Yes, it does.
PN2065
MR HALE: Now, in the evidence the company was saying that the union had not - although in Ms Saunders evidence she said that when she received that letter her mind went to the settlement of disputes procedure but that because she believed that the union hadn't followed the settlement of the disputes procedure she didn't think that it applied. With 6.4 of the settlement of disputes procedure it says the nature of the issue involved, consideration and the number of employees concerned may make it appropriate for earlier stages of the process to be bypassed.
PN2066
So that the union was not in breach of the settlement of disputes procedure. The nature of it was that we were dealing with an issue that involved 40 people. We say involved the whole 400 given that it was industrial action taken against the group as a whole with 40 people being the immediate victims of the industrial action, but that there was certainly much wider than an individual concern which would normally be dealt with through the earlier stages where the employee would go and talk to the immediate supervisor. That wasn't the situation here. It was a matter of general application and also the considerations of urgency in that the change had been flagged for some two weeks hence.
PN2067
THE DEPUTY PRESIDENT: So you say that it was appropriate for early stages of the process to be bypassed?
PN2068
MR HALE: That is correct.
PN2069
THE DEPUTY PRESIDENT: And that is what you did in the letter of 8 April.
PN2070
MR HALE: That is right so that the earlier - -
PN2071
THE DEPUTY PRESIDENT: It went straight to which level, the union - - -
PN2072
MR HALE: Well, the 6.4 so that it went straight to the employees concerned - well:
PN2073
The shop steward or delegate shall be allowed at a place designated by the employer ...(reads)... to which they belong.
PN2074
So that the shop stewards had spoken to the union. I don't know whether the company provided the time or whether they had done it in their own time after hours, but the shop stewards had got in touch with the organiser and had said to the organiser this is the problem that is happening. The organiser had then invoked the settlement of disputes procedure, written to the company requesting that the status quo remain until the matter be resolved and the company wrote back rejecting that.
[3.04pm]
PN2075
That is despite the evidence of Ms Saunders that she had considered the settlement of disputes procedure when she received the letter from Ms Pope. The second factor in which we say the award has been breached goes to the appendix B which deals with the continuous shift work. Now, in the company's outline of submissions the company puts the proposition that - it might be easier if I actually - it is in 4.2 of their outline of submissions. They say:
PN2076
Paragraph 1 of the appendix clearly stipulates that it overrides the provisions of clauses ...(reads)... or shift work.
PN2077
THE DEPUTY PRESIDENT: Sorry, where is this?
PN2078
MR HALE: At 4.2 of the company's outline of submissions.
PN2079
THE DEPUTY PRESIDENT: Right, I have it.
PN2080
MR HALE: So the last sentence of 4.2 where it says:
PN2081
Paragraph 1 of the appendix clearly stipulates that it overrides the provisions of the ...(reads)... or shift work.
PN2082
We say that isn't what paragraph 1 says. Paragraph 1 says that:
PN2083
Notwithstanding those provisions this appendix shall prescribe the terms and conditions under which seven day continuous shift work can operate at Mars Confectionery of Australia at ....(reads)... shall apply.
PN2084
THE DEPUTY PRESIDENT: It turns on inconsistency. If there is inconsistency then it overrides, if not, it doesn't.
PN2085
MR HALE: Yes. In addition it points directly to seven day continuous shift work.
PN2086
THE DEPUTY PRESIDENT: Which is what?
PN2087
MR HALE: Which is the four shifts in this case and the three shifts, we would say, unless they are worked - - -
PN2088
THE DEPUTY PRESIDENT: They could be continuous shift work too, couldn't they? As long as they cover 24 hours, seven days a week. Isn't it any shift that covers 24 hours, seven days a week is continuous shift work, whether it is three, four or some other configuration?
PN2089
MR HALE: Well, it could be. It wouldn't be on the three shift operation as it is currently worked as Mars.
PN2090
THE DEPUTY PRESIDENT: No, that is clear. If they added another two days of it it would, wouldn't it?
PN2091
MR HALE: Yes, if the roster goes over the full seven days - - -
PN2092
THE DEPUTY PRESIDENT: That is right. It is anything that goes over the full seven days, 24 hours by the looks of it.
PN2093
MR HALE: Yes.
PN2094
THE DEPUTY PRESIDENT: There is no reference in the definition of 12 hours.
PN2095
MR HALE: I suppose all I was saying was that the current three shift operation wouldn't fit within that.
PN2096
THE DEPUTY PRESIDENT: No, quite correct, because it fails the 24 hours, seven days a week test.
PN2097
MR HALE: Well, I think it goes to the 24 hours but fails the seven days.
PN2098
THE DEPUTY PRESIDENT: Right.
PN2099
MR HALE: So we would then say that clause 24 shift work does have application.
PN2100
THE DEPUTY PRESIDENT: Okay.
PN2101
MR HALE: And that clause 24.6.8 - - -
PN2102
THE DEPUTY PRESIDENT: So it is not inconsistent?
PN2103
MR HALE: Well, I suppose that will be something for consideration when we look at it in the context of some further submissions in relation to paragraphs 3 and 4 of the appendix. But we say that it is the award at 24.6.8 is referring to the working of shifts and it says:
PN2104
The method of working shifts may in any case be varied by agreement between the employer and ...(reads)... of the establishment.
PN2105
THE DEPUTY PRESIDENT: So the question is, is that overridden or not I guess.
PN2106
MR HALE: Well, that is correct, your Honour.
PN2107
THE DEPUTY PRESIDENT: It is an interesting question.
PN2108
MR HALE: So that where you are dealing with those working of shifts where it is not continuous shift work, we say that that would be governed by the award which then provides for agreement. Even in relation to the working of the continuous shift, we say that the construction of paragraph 3 and paragraph 4 of the appendix, paragraph 3 provides for the continuous shift workers for the introduction and the reduction of continuous shift work.
PN2109
What we say 4 applies to is where an individual employee is being transferred from an existing shift to another existing shift. So if - - -
PN2110
THE DEPUTY PRESIDENT: So the last sentence of paragraph 3 applies to cessation of seven day continuous shift work, does it?
PN2111
MR HALE: Yes, where it says variations thereto we would say that - - -
PN2112
THE DEPUTY PRESIDENT: I see. The preparing of rosters and any variations thereto. So it is not a reference there to simply the mechanical stuff once you decide to introduce to cease seven day and shift work. It is not a reference to simply dotting the i's and crossing the t's of who turns up at what hours, rather, it is general thing you say.
PN2113
MR HALE: Yes. So what we say is that the function of 3 is a completely different function to the function of 4.
PN2114
THE DEPUTY PRESIDENT: Right.
PN2115
MR HALE: 3 is either the introduction or reversion of the continuous shift work. 4 is where an individual is transferred. So it is not a holus bolus the entire 40 people in the room have their shift changed or everybody in the factory has their shift changed, it is where an individual is changed from an existing shift to another existing shift.
PN2116
THE DEPUTY PRESIDENT: So the singular in that context doesn't include the plural?
PN2117
MR HALE: Yes.
PN2118
THE DEPUTY PRESIDENT: Is that the case throughout the award? Does the award generally refer to an employee and meaning one employee or does it import the plural in most cases? Because one way we have to interpret clauses of the award is to look at the award context, you know, how the award deals with, treats such language. I don't want to interrupt you but I will leave the question open if you like.
PN2119
MR HALE: Yes. Part of the difficulty with that is that the appendix is - - -
PN2120
THE DEPUTY PRESIDENT: A separate instrument.
PN2121
MR HALE: Yes, and it is put in at a separate time presumably - - -
PN2122
THE DEPUTY PRESIDENT: I take it you are going to give me the variation and submissions and decision on that, are you, so that I can understand the context in which - maybe the decision says something about this? When was it introduced, does anybody know?
PN2123
MR HOR: It was May 1989, your Honour.
PN2124
THE DEPUTY PRESIDENT: That long ago?
PN2125
MR HOR: Yes, your Honour, and that was a consent variation.
PN2126
THE DEPUTY PRESIDENT: So there was no explanation in the variation then. Was it part of award restructuring?
PN2127
MR HOR: No, it was a - - -
PN2128
THE DEPUTY PRESIDENT: I am sorry to interrupt you, Mr Hale but this is relevant.
PN2129
MR HALE: Yes.
PN2130
MR HOR: I was proposing to - - -
PN2131
THE DEPUTY PRESIDENT: Well, let us have it now if we could, if that is all right. If you have a decision, an order, I would be quite fascinated to read it and ask Mr Hale - - -
PN2132
MR HOR: Unfortunately I don't have copies, your Honour.
PN2133
THE DEPUTY PRESIDENT: Well, we can get copies. Just hand it to me. That looks like an award restructuring decision to me. I will just quickly read it and we will get copies for everybody. It is just a variation. There is no decision accompanying it?
PN2134
MR HOR: There was no decision, your Honour.
PN2135
THE DEPUTY PRESIDENT: Was there transcript?
PN2136
MR HOR: Yes, there was transcript, your Honour. We only quite late in the piece had access to the Commission's files in relation to this.
PN2137
THE DEPUTY PRESIDENT: No, that is fine. Can I have a quick look at the relevant transcript?
PN2138
MR HOR: Yes, certainly, your Honour.
PN2139
THE DEPUTY PRESIDENT: We will get copies of that as well. No, I am grateful for material. I am not at all critical. It is relevant. I will just quickly look at it if I could. As is traditional in these matters, it seems to be completely useless, but never mind. I will get copies for all parties. It may prove to have something useful but my quick look didn't disclose any explanation. But thank you very much for that. I will get copies for the parties. Sorry to interrupt you, Mr Hale, but we have cleared up one mystery anyway where the appendix B came from. It was the result of an award restructuring consent position it seems, reached between your union and the company after what is said on transcript to be consultation with employees.
PN2140
MR HALE: So what we would say is that given that there are two planks that aren't conflicting that are both saying the same thing.
PN2141
THE DEPUTY PRESIDENT: Yes.
PN2142
MR HALE: And that is, that for the company to bring about this change they need to reach - I suppose they are only conflicting to the extent that in the award they need to reach agreement with the majority of employees which we say they have not on this occasion. They have put out the letter, as was shown in the evidence, and not one employee has signed the letter. We say that the appendix B provides for agreement with the majority of employees represented by the union, so that any conflict between the main body of the award and the appendix B, that conflict is only in relation to whether they need to be represented by the union or not.
PN2143
THE DEPUTY PRESIDENT: It is quite a serious submission you are putting, Mr Hale. I mean I am just trying to explore it. I mean what you are saying basically is that the company is locked into seven day a week, 24 hour a day shifts unless employees agree to unlock it, is that right?
PN2144
MR HALE: Yes, that is right and I suppose the alternative is also a very serious thing.
PN2145
THE DEPUTY PRESIDENT: Yes.
PN2146
MR HALE: That if an employer is to willy nilly be able to change someone's shift - - -
PN2147
THE DEPUTY PRESIDENT: Do it every seven days or every 14 days is what you are saying.
PN2148
MR HALE: That is correct. I mean that would be extremely harsh and unfair as well.
PN2149
THE DEPUTY PRESIDENT: What constraints are there on say an employee simply saying no? Is there an unreasonable withholding of agreement clause? Is it the dispute settlement procedure that then deals with the issue or what?
PN2150
MR HALE: Well, the dispute settlement procedure would certainly be available.
PN2151
THE DEPUTY PRESIDENT: Applicable.
PN2152
MR HALE: Yes, in that where there is a dispute then either party - - -
PN2153
THE DEPUTY PRESIDENT: Could apply under the dispute settlement procedure and then cease the 12 hour operation if it was appropriate or not, as the case may be.
PN2154
MR HALE: I would believe it would be available to the company to seek a variation to the award.
PN2155
THE DEPUTY PRESIDENT: Or that as well. So it could go through the settlement procedure to unlock the situation or variation of the award.
PN2156
MR HALE: Or even reach agreement with the majority of employees.
PN2157
THE DEPUTY PRESIDENT: No, no, no, of course. That would be the first step.
PN2158
MR HALE: Yes.
PN2159
THE DEPUTY PRESIDENT: I assume that would be the first step on your interpretation. But assuming that agreement was not forthcoming, as sometimes - - -
PN2160
MR HALE: Yes, if the employees were unreasonably withholding agreement or even under appendix B, if the union was unreasonably withholding.
PN2161
THE DEPUTY PRESIDENT: Yes, yes.
PN2162
MR HALE: Although I don't think it goes as far as saying that the union can have the power of veto. I think it is more saying that the majority of employees with representation of the union.
PN2163
THE DEPUTY PRESIDENT: Yes, I think the union role is there as one of their agent or representative.
PN2164
MR HALE: Yes.
PN2165
THE DEPUTY PRESIDENT: Not the union itself. It is the majority of employees who are deciders if you like.
PN2166
MR HALE: That is correct.
PN2167
THE DEPUTY PRESIDENT: Are there any other clauses of this sort in the industry and any decisions under them or is this unique? This can't be the first time in which there has been a dispute of this sort, can it?
PN2168
MR HALE: No, I am aware of one under the Food Preservers Award.
PN2169
THE DEPUTY PRESIDENT: Right.
PN2170
MR HALE: It may have even been before you, your Honour.
PN2171
THE DEPUTY PRESIDENT: Yes.
PN2172
MR HALE: Heinz at Echuca. There is different wording in the award but there was a similar situation. I thought it may have been before you about 18 months, two years ago.
PN2173
THE DEPUTY PRESIDENT: I don't recall that one, Mr Hale.
PN2174
MR HALE: It might not.
PN2175
THE DEPUTY PRESIDENT: It might have been one we settled but I don't recall an arbitrated one.
PN2176
MR HALE: No, it wasn't arbitrated, no, and I think that this is the - well, this is the first one I am aware where it has been arbitrated. Twelve hour shifts in the industry are a reasonably new phenomenon. I think Mars would have been one of the first to introduce them. There has been a few introduced since 2000, but prior to that they were pretty few and far between I think.
PN2177
THE DEPUTY PRESIDENT: And how do I approach interpretation of an award, is it on the following basis, first of all I look at the ordinary meaning of the language?
PN2178
MR HALE: That is correct.
PN2179
THE DEPUTY PRESIDENT: Secondly, I look at the way the language is used in the context of this award, such as singular and plural, etcetera. Having regard also to what you said about this clause being a separate instrument.
PN2180
MR HALE: Yes.
PN2181
THE DEPUTY PRESIDENT: Thirdly, I look at the variation to see if there is anything there.
PN2182
MR HALE: Yes.
PN2183
THE DEPUTY PRESIDENT: Fourthly, there is authority for interpreting awards having regard to the law of contract, the same sort of principles. I could be wrong on that. That might be certified agreements.
PN2184
MR HALE: I am not aware of that, your Honour.
PN2185
THE DEPUTY PRESIDENT: No. Fifthly, I look at the way these sorts of words are used in the industry by industry parties. This is practical language, not language existing, you know, separate from the industry and from the parties. It is language used by the industry and the parties so I look at the way that language was used. Is there anything else or is that a fair summary of the approach I should take?
PN2186
MR HALE: That seems a fair summary, your Honour.
PN2187
THE DEPUTY PRESIDENT: Right. So could I just summarise then. You say that first of all the award has been breached because the dispute settlement procedure was invoked. It was invoked in the letter of 8 April and it was invoked even though the dispute settlement procedure in the award isn't mentioned, rather the reference simply is to be in dispute and a request for the pre dispute status quo to remain. So I am to take that as not a notification of a general issue but simply as an invocation of the dispute settlement procedure.
PN2188
Alternatively, the appendix B has been breached by the employer because they didn't consult or gain a majority agreement. I won't go through all the way you have put that, but that is it in summary, is it?
PN2189
MR HALE: I suppose rather than alternatively we would be saying as well as.
PN2190
THE DEPUTY PRESIDENT: As well as.
PN2191
MR HALE: But we would say that on its own either of them would be enough for the action to be a legitimate industrial action.
PN2192
THE DEPUTY PRESIDENT: And you have prepared a draft award variation that you invited the company to agree to, some sort of accommodation. I mean I take it those are words which you are prepared to negotiate about within, obviously, limits, and some sort of accommodation based on such an award variation. A variation to appendix B might satisfy your side conceivably.
PN2193
MR HALE: Well, we would always be prepared to sit down and talk in relation to that.
PN2194
THE DEPUTY PRESIDENT: Yes.
PN2195
MR HALE: But our concern would be what happens to the pre dispute status quo while that is happening.
PN2196
THE DEPUTY PRESIDENT: So the present issue is of course is what you are referring to?
PN2197
MR HALE: Yes, so that - - -
PN2198
THE DEPUTY PRESIDENT: The fact that these employees have been transferred.
PN2199
MR HALE: That is correct. So that if we were in a position where the pre dispute status quo was restored and we could then sit down and have those discussions, we don't believe that the employees are unreasonably withholding consent. We believe that a 32 per cent reduction in wages at a time when you are trying to negotiate an increase in your wages under the Act and in accordance with the Act, we believe that that is fairly harsh and very harsh. So we are certainly prepared to look at trying to get a consent agreement to appendix B providing there is a reversal of the pre dispute status quo.
PN2200
We also say that the purpose of the action is illegitimate in that it is not a purpose of seeking an agreement. It is a purpose of stopping an agreement being made. So the purpose is dissuade employees from continuing to press for the making of an agreement in accordance with the Act rather than attempting to pursue an employer's agenda or an employer's log of claims in relation to what the content of what that log of - or what the content of that agreement should be.
PN2201
THE DEPUTY PRESIDENT: Sorry, could you just say that again.
PN2202
MR HALE: What we are saying is that the action is illegitimate because of the purpose behind the action.
PN2203
THE DEPUTY PRESIDENT: Right. And the purpose behind the action is what?
PN2204
MR HALE: The purpose behind the action we say is dissuade the employees from continuing to pursue an enterprise agreement.
PN2205
THE DEPUTY PRESIDENT: So the purpose isn't - - -
PN2206
MR HALE: Isn't to make an enterprise agreement.
PN2207
THE DEPUTY PRESIDENT: So the purpose of this is not to deal with the drop in demand or whatever it is that the business says exist having regard to those tables which we had explained to us?
PN2208
MR HALE: Yes, and we say that the evidence shows that.
PN2209
THE DEPUTY PRESIDENT: So it is simply the context, namely, that this is taking place during a bargaining dispute is enough to make it - - -
PN2210
MR HALE: No, not on its own I don't think it is enough.
PN2211
THE DEPUTY PRESIDENT: Right.
PN2212
MR HALE: But I think when you consider - - -
PN2213
THE DEPUTY PRESIDENT: So what are the other factors apart from the context?
PN2214
MR HALE: Well, I think when you have a look at the overheads that the company put forward where - - -
PN2215
THE DEPUTY PRESIDENT: AMWU4, is it - 3. Is it 3? No, it is 2, AMWU2. That is the bundle of graphs.
PN2216
MR HALE: No, there was some overheads. I thought they were - - -
PN2217
THE DEPUTY PRESIDENT: That was AMWU3 which is the shift change. Yes, it is all part of AMWU2. It is this document, Mr Hale. This is document which is followed by some overheads.
PN2218
MR HALE: Are they the overheads that refer to the mass meeting? I think it was February of this year.
PN2219
THE DEPUTY PRESIDENT: No, it doesn't.
PN2220
MR HALE: In the evidence given by - H3, is it?
PN2221
THE DEPUTY PRESIDENT: H3. Well, let us find H3. Yes, yes, I see. These? These overheads, Mr Hale?
PN2222
MR HALE: Yes.
PN2223
THE DEPUTY PRESIDENT: H3, yes.
PN2224
MR HALE: Thank you.
PN2225
THE DEPUTY PRESIDENT: Which part of H3 is relevant?
PN2226
MR HALE: Well, H3 I guess demonstrates two things. One is that the company has been saying that this change is legitimate, that they have been attempting to bring this about since February when they first raised it because one of the associates raised it with them so that they thought they would put this out in February telling people about they would keep them up to date on the changes that were going to happen in the factory. We say that these demonstrate two things, one on the back page where it refers to associate meeting.
PN2227
THE DEPUTY PRESIDENT: 27 February?
PN2228
MR HALE: Yes, that is correct and my notes here I have got that this put out at approximately 26 February
PN2229
THE DEPUTY PRESIDENT: Right.
PN2230
MR HALE: But I would need to go back through the transcript to see whether that is actually evidence.
PN2231
THE DEPUTY PRESIDENT: Well, the AMWU hadn't done anything about an agreement at that stage, or it hadn't been asked to do it.
PN2232
MR HALE: Yes, it had.
PN2233
THE DEPUTY PRESIDENT: It had, all right.
PN2234
MR HALE: I am just trying to think whether this came out in evidence.
PN2235
THE DEPUTY PRESIDENT: What was the sequence of events on the evidence?
PN2236
MR HALE: Yes, the sequence of events on the evidence were that the employees had spoken to the union and said we want to go back and have one more go at negotiating it directly with the company ourselves.
PN2237
THE DEPUTY PRESIDENT: That is right. And that was the position as at February, they were still saying we will have a go ourselves, isn't that right?
PN2238
MR HALE: Early February - - -
PN2239
THE DEPUTY PRESIDENT: And then in change in March or April, I can't recall.
PN2240
MR HALE: I think it was this meeting on 27 February was to be a union meeting.
PN2241
THE DEPUTY PRESIDENT: Was it?
PN2242
MR HALE: Yes. So that was to be - - -
PN2243
THE DEPUTY PRESIDENT: Was that the evidence of Ms Pope? I would have to check that.
PN2244
MR HALE: Yes. That was to be a union meeting and they then say the proposed meeting will disrupt the running of the plant. So although there wasn't a bargaining period in place at this time the employees were getting together to put together the log of claims.
[3.33pm]
PN2245
THE DEPUTY PRESIDENT: About 27 February, was it?
PN2246
MR HALE: Around about the 26th, I think. It was just immediately prior to the mass meeting that was to be held to consider the log of claims and that - - -
PN2247
THE DEPUTY PRESIDENT: Yes, of course, there was the log of claims. When was that served again?
PN2248
MR HALE: I think the log of claims was served as part of the bargaining period which was 31 March, so this was to compile the log of claims, so on the second back page, this was when the issue in relation to shift patterns was first raised by the company, so that there is agitation for - - -
PN2249
THE DEPUTY PRESIDENT: Yes, 30 March is the service of the bargaining period.
PN2250
MR HALE: That is correct.
PN2251
THE DEPUTY PRESIDENT: And I think Ms Pope said that she wasn't aware of exhibit H3.
PN2252
MR HALE: That is correct.
PN2253
THE DEPUTY PRESIDENT: Until it was shown to her. Sorry, go on. I interrupted you.
PN2254
MR HALE: So that was where the company raised the issue in relation to shift patterns. They knew that shift patterns, by changing them, could bring about a 32 per cent reduction in people's wages. They knew that it was something that would have a fairly quick effect on those employees. The company has shown a history of using operational need to justify just about anything they want.
PN2255
THE DEPUTY PRESIDENT: Well, that is a very general phrase, Mr Hale.
PN2256
MR HALE: Well, I was going to take the Commission to a specific instance in the evidence.
PN2257
THE DEPUTY PRESIDENT: All right.
PN2258
MR HALE: And that is the evidence of Mr Everitt and it was in the evidence that you referred us to on the last occasion.
PN2259
THE DEPUTY PRESIDENT: Was it?
PN2260
MR HALE: Now, I think it was paragraph 714. Where Mr Everitt - in 714, towards the bottom of the page, he says:
PN2261
The next shift when we came in - - -
PN2262
THE DEPUTY PRESIDENT: This is paragraph number 714, is it?
PN2263
MR HALE: That is correct. It is about an inch from the bottom of the page where it starts:
PN2264
The next shift - - -
PN2265
MR HOR: Your Honour, perhaps if I could assist. There were two versions of the transcript on that particular day that were supplied to the parties. We were sent an updated one, given that we had requested the first one on an urgent basis and I think the numbering may be askew.
PN2266
THE DEPUTY PRESIDENT: Yes, that is right. I can't find it, that is all, so what is the new numbering? What is the numbering on the latest version? It is Mr Everitt, is it, or Mr Jones?
PN2267
MR HALE: Mr Everitt under cross-examination by Mr Hor.
PN2268
MR HOR: Your Honour, I believe it is paragraphs 841 through at least 844, but arguably further.
PN2269
THE DEPUTY PRESIDENT: Understood. That is the equivalent. Thank you very much for that. Yes, Mr Everitt at 841 to 844. Thank you very much, Mr Hor, so we have found it, so that is the latest version.
PN2270
MR HALE: Okay. Well, what I have got here is - - -
PN2271
THE DEPUTY PRESIDENT: So that is what you say is a threat by them?
PN2272
MR HALE: Well, I wasn't going to go and rake over the threats. I was going to draw to the Commission's attention the use of production requirements to justify just about anything.
PN2273
THE DEPUTY PRESIDENT: I see. What is the production requirement there?
PN2274
MR HALE: Well, what Mr Everitt says in cross-examination is:
PN2275
The next shift when we came in, which is our night shift, we had been refused the request to be given time off, at which stage I asked if I could take six hours' annual leave, so I could have a sleep before I attended the meeting.
PN2276
THE DEPUTY PRESIDENT: I see, because of production reasons.
PN2277
MR HALE: Yes, so that the company has said, no, you can't take your annual leave to attend the Commission hearing because of production reasons, even though there had been three electricians on that shift, whereas on a day shift which is busier, he would have had two.
PN2278
THE DEPUTY PRESIDENT: All right, so you say first of all there is the sequence of events which suggests that the company is doing this for illegitimate reasons, namely the context which is that you put in a claim and start seeking an agreement and following that, the company did this, so it is that sequence of events.
PN2279
MR HALE: Yes.
PN2280
THE DEPUTY PRESIDENT: Then you say that their explanation of production reasons is bogus because they have used that excuse before and you cite the evidence of Mr Everitt on one occasion.
PN2281
MR HALE: Yes.
PN2282
THE DEPUTY PRESIDENT: Is there anything else? Are those the two things, or is there more? I am not being critical. I am just trying to get the story straight.
PN2283
MR HALE: The other thing is in the Commission's decision of Commissioner Whelan in relation to the Age company - - -
PN2284
THE DEPUTY PRESIDENT: Which is under appeal.
PN2285
MR HALE: I know that this is subject to appeal.
PN2286
THE DEPUTY PRESIDENT: And the appeal decision is reserved, so we are awaiting it at any minute now. Well, I don't know how long it will be, but nevertheless, it has been reserved for some time, it seems.
PN2287
MR HALE: Yes. Well, I am not so much relying on the decision proper as I guess the line of argument put in relation to that and part of that is at paragraph 31.
PN2288
THE DEPUTY PRESIDENT: What print number is it?
PN2289
MR HALE: It is PR944258.
PN2290
THE DEPUTY PRESIDENT: And paragraph what?
PN2291
MR HALE: At paragraph 31 it says:
PN2292
It is submitted by the union that conduct of the Age warrants the issue of orders. The conduct is inappropriate and illegitimate and is a direct breach of clause 4 of the certified agreement ...(reads)... obligations under relevant industrial instruments and its obligations to treat its workforce with at least the modicum of dignity and respect.
PN2293
What we are saying in relation to this matter is that the company has not done that. It has not seriously tried to reach agreement with its employees in accordance with the provisions of the award. In fact, it has not even gone through the settlement of disputes procedure in accordance with the award.
PN2294
THE DEPUTY PRESIDENT: Well, they say they have consulted with employees since February, shown by exhibit H3, they have entered further consultations and they say they are acting in accordance with the award. Now, that is wrong with that sort of approach?
PN2295
MR HALE: Well, they do say they are acting in accordance with the award.
PN2296
THE DEPUTY PRESIDENT: And consulted in February, exhibit H3.
PN2297
MR HALE: Well, yes. We say that that consultation and I think Ms Saunders was clear to point out in relation to the cross-examination by Mr Jose, I think, that they consulted, nor sought to reach agreement and I think that we could probably have an argument about what consultation actually means, but in the evidence before the Commission, they were not seeking to reach agreement with their employees.
PN2298
THE DEPUTY PRESIDENT: Well, these are serious allegations to make, Mr Hale, against a company that seems to have a long-standing good record, if I could call it that. You can tell me if I am wrong about that. There must be a better way to deal with this.
PN2299
MR HALE: Well, when it comes to a long-standing good record, yes, the company has paid some employees' union dues for as long as I am aware and that is at least four years and well before that, although we say that we need to look beyond the mere paying of the union fees. The union's ability to get in and have organisation within the workplace has been extremely limited and I think that came out in the witness evidence as well, to the point where any interaction I have had prior to this with employees of Mars at Ballarat was after they had been terminated or after they were off work on WorkCover claims, so there certainly hasn't been a long history of a good working relationship with the union.
PN2300
The employees once again on the evidence of Mr Everitt, they were saying that up to two or three years ago, the company was a good employer, but things have gone seriously downhill in the last three or four years and that the company - I think his words were that the company is no longer abiding by its own principles, so as I said, we are quite prepared to enter into discussions, negotiations in relation to variations so that we can establish a good working relationship with the company, but we want to do it on the basis of the pre-dispute status quo and it has always been our preferred position and I think we flagged it right from the start that the problem is probably more likely to be in relation to the negotiation of the agreement rather than the need by the company to bring about change because of its processes and I think that came through from the evidence as well, in that the evidence has shown that the ETU organiser, Paul Coffey, at the meeting had said, look, if you are going bad, we can help, so it wasn't that the company was going bad. It wasn't that the company had a genuine - we say had a genuine need. We say that the company is simply using this process to force an outcome on its employees and we say that that is illegitimate industrial action and the Commission should exercise its jurisdiction to stop and prevent that illegitimate industrial action being carried on against these employees. I have no further submissions, your Honour.
PN2301
THE DEPUTY PRESIDENT: Anybody else? Mr Hor, you have the floor for 20 minutes.
PN2302
MR HOR: I will try my best, your Honour. Your Honour, if I could perhaps start by taking you to exhibit H1 which was the outline of submissions that we tendered.
PN2303
THE DEPUTY PRESIDENT: Yes, I have them here.
PN2304
MR HOR: Thank you, your Honour. Perhaps before I address the body of those submissions, your Honour, I am instructed to make some brief submissions in relation to your Honour's reference at the commencement of the last time we were before you, your Honour, in relation to the powers of the Registrar under section 301. I certainly in response to those comments, your Honour, address the serious nature of that section and the powers that are given to the Registrar with my client.
PN2305
They have taken those comments extremely seriously, as they instruct me they do in relation to all such matters and I am instructed and assured by them that there was no such breach, your Honour, and that certainly while they are hampered by the lack of assistance being provided by the individual concerned, that should that assistance be forthcoming, they will continue and are happy to give undertakings that that investigation will be completed, so if I could perhaps leave it at that, your Honour.
PN2306
THE DEPUTY PRESIDENT: It is a matter for you. It is not for me.
PN2307
MR HOR: Thank you, your Honour.
PN2308
THE DEPUTY PRESIDENT: Thank you for that.
PN2309
MR HOR: In relation to this case, your Honour, essentially we will submit that a number of the arguments that have been put - - -
PN2310
THE DEPUTY PRESIDENT: It may be an issue for me if it goes to the illegitimacy of the conduct, etcetera, as raised by Mr Hale.
PN2311
MR HOR: I understand, your Honour, but in relation to perhaps the other aspects of the relevance of that.
PN2312
THE DEPUTY PRESIDENT: The legal aspect, that is a matter for other bodies, if anybody.
PN2313
MR HOR: Certainly, your Honour, so it will be our submission, your Honour, in relation to this matter that the context of the introduction of appendix B and while we are all at somewhat of a loss to understand the details around that, what certainly is clear from the Commission's records is in relation to appendix B that it was a consent variation. It would be my submission that having regard to what the provisions of the award were at the time whereby a three shift, eight-hour roster pattern was envisaged by the award, there wasn't the scope for an employer or, indeed, an employer in agreement with its employees to introduce a continuous 12-hour shift roster. In order to do that, it was necessary to make that variation to the award.
PN2314
THE DEPUTY PRESIDENT: That came with the later award provisions, didn't it?
PN2315
MR HOR: My understanding, your Honour, is that that is - - -
PN2316
THE DEPUTY PRESIDENT: Still not there?
PN2317
MR HOR: No, that that is what is introduced in the consent variation of May 1989.
PN2318
THE DEPUTY PRESIDENT: Just for there record, the print number referred to is print H8433 which is the variation of appendix B and the transcript is transcript dated 13/4/1989 and 10 May 1989 and that is apparently the only record of consent or decision.
PN2319
MR HOR: Yes, your Honour, and I think the transcript does make it quite clear and I would hope that it is not contested that the parties were in agreement that that was an appropriate course of action and jointly made the - - -
PN2320
THE DEPUTY PRESIDENT: It is quite clear that they were in agreement.
PN2321
MR HOR: And so what flows from that, your Honour, is that the scope for the introduction of 12-hour shifts was made available through the introduction of appendix B and we say that that is actually a critical issue as far as this particular matter is concerned.
PN2322
THE DEPUTY PRESIDENT: Without appendix B, there is nothing in there that allows the working of 12-hours shifts, is there?
PN2323
MR HOR: No, your Honour, and what we would say is that in relation to the clause that dealt with the method of working shifts being a matter that could be agreed between employer and the majority of employees, I think the terminology was, we would actually say that a lot turns on - - -
PN2324
THE DEPUTY PRESIDENT: You see, clause 19.2 allows 12-hour shifts.
PN2325
MR HOR: Is that through a facilitative provision?
PN2326
THE DEPUTY PRESIDENT: Yes. I suspect that appendix B preceded clause 19.2. Correct me if I am wrong.
PN2327
MR HOR: It is possible. I am not aware of the timings around 19.2 and the appendix B. However - - -
PN2328
THE DEPUTY PRESIDENT: Well, it matters, because if there is some interaction between appendix B and 19.2, then the sequence of clauses may matter. I don't know. If we are having an argument about appendix B in the context of the award and inconsistencies or not between various clauses, we need to know questions like that.
PN2329
MR HOR: If perhaps I could assist, your Honour, the consent variation introduces at paragraph B:
PN2330
Notwithstanding the provisions of clause 10 and 19 of this award, this appendix shall prescribe the terms and conditions - - -
PN2331
THE DEPUTY PRESIDENT: I see, yes. Well, that just means there was an hours clause of some sort. It doesn't mean it was the same hours clause.
PN2332
MR HOR: I had hoped to be able to provide some more submissions on this, your Honour, but I have had great difficulty in obtaining more details from the Commission's file at this point, but I would suggest that aside from that paragraph A in that consent variation, all of the other terms of that - - -
PN2333
THE DEPUTY PRESIDENT: Are the same.
PN2334
MR HOR: - - - are the same, and of particular note is the fact that in the event of an inconsistency, the appendix is to override. There is particular scope given for a reversion to eight-hour shifts, we would say, your Honour.
PN2335
THE DEPUTY PRESIDENT: You heard the summary of principles for interpreting awards I gave. Is that correct, or is anything to be added or subtracted from that in your view, or do you want to think about it, perhaps?
PN2336
MR HOR: Certainly on - - -
PN2337
THE DEPUTY PRESIDENT: It is the ordinary language and the ordinary language in the context of the award and ordinary language as used by parties to this industry and practical people. Is that the sort of approach?
PN2338
MR HOR: Certainly, your Honour, but what we would say is that he context for this particular site and the work mechanism, if I could put it that way, that is envisaged under the body of the award as amended by the appendix to the award is also a very relevant consideration, because that is what we say addresses the employer's right under the award to make the reversion back to eight-hour shift.
PN2339
THE DEPUTY PRESIDENT: So what am I to have regard to?
PN2340
MR HOR: The fact that certainly at the time that this consent variation was introduced and I think what the transcript makes some reference to is that there was a business need at the time to move.
PN2341
THE DEPUTY PRESIDENT: Yes, I recall that.
PN2342
MR HOR: Yes, and so the fact that in light of that reference on transcript to there being a provision in the consent variation to the employer being able to give one week's notice - - -
PN2343
THE DEPUTY PRESIDENT: Where is that? Let us have a look at it.
PN2344
MR HOR: That is in the consent variation, paragraph E, and in the current version of the award, your Honour, it is paragraph 4 of appendix B.
PN2345
THE DEPUTY PRESIDENT: And is that reference to an employee, singular, only, or does the singular incorporate the plural in that clause?
PN2346
MR HOR: Certainly, your Honour, the words - - -
PN2347
THE DEPUTY PRESIDENT: Mr Hale says it doesn't.
PN2348
MR HOR: The words used is an employee. Our submission would be that it is possible for a shift to constitute one employee on one view and that therefore it would be available to the employer to invoke that provision in respect of a number of employees, notwithstanding that it only makes reference to one. The application of each instance, reliance, if I could put it that way, your Honour, is still in accordance with paragraph 4, even though it might be a group of employees who are affected.
PN2349
THE DEPUTY PRESIDENT: Why in your view would there be a requirement on you in paragraph D, referring to the 1989 variation - well, let us go to paragraph - I suppose we should work off appendix B, at paragraph 3, the last sentence, to agreement, on that, the non-agreement on the fundamental issue of whether you end the 12-hour shifts or not.
PN2350
MR HOR: What we would say, your Honour, is that there is a very relevant context for that, being that that was the first time that 12-hour shifts were being introduced and so in order for that introduction to happen in the smoothest possible way and I think there is also reference to that in the transcript, your Honour, of that consent variation that that was something to be agreed insofar as it relates to the preparing of rosters and determining of the time of commencing and finishing shifts and any variations thereto.
PN2351
It is confined, we say both contextually and explicitly to some agreement being reached at that time that dealt with the introduction of 12-hour shifts at this particular site. The next paragraph envisages that it might not be a permanent arrangement and the scope is given to the employer upon the provision of one week's notice to an affected employee to revert to the three-shift arrangement.
PN2352
THE DEPUTY PRESIDENT: So they could do it by seven weeks' notice every fortnight if they wished to?
PN2353
MR HOR: Sorry, your Honour?
PN2354
THE DEPUTY PRESIDENT: They could have a continuous process of introduction and cancellation every two weeks, if they chose to do so.
PN2355
MR HOR: On the face of the award, that would be our submission. Now, it would also be our submission that on the evidence, that has not been happening and certainly insofar as that relates to the Commission's discretion - - -
PN2356
THE DEPUTY PRESIDENT: But on your interpretation of the award, that is what the employer can do if the employer wishes to.
PN2357
MR HOR: That is correct, your Honour.
PN2358
THE DEPUTY PRESIDENT: Isn't that a fairly unreasonable result of an award interpretation?
PN2359
MR HOR: Well, we would say, your Honour, that it is a reflection and relevance must be had to the fact that it was a consent variation, it was a reflection of the fact that there were a number of variables that would necessitate the movement between four and three shifts and that is where all of that has relevance for the issue at hand, because it is precisely those variables that have been addressed in the evidence of the company. Now, if it was the case, your Honour, that that was something that was being utilised on as regular a basis as has been hypothesised, we would say that the award position wouldn't mean that that was unlawful, but certainly as a matter of fairness in application, it would warrant serious questions and there are avenues available we would submit to the union, whether it be variation to the award or indeed to incorporate it into the agreement negotiation process.
PN2360
THE DEPUTY PRESIDENT: Or the dispute settlement clause.
PN2361
MR HOR: Or the dispute settlement procedure, if it was specifically dealing with this, but we would say, your Honour, that there is a question mark, if I could put it no higher than that, as to whether or not the dispute settlement procedure can appropriately be invoked where a clause of the award is as specific as the clauses that are contained in appendix B of the award.
PN2362
THE DEPUTY PRESIDENT: I see, so that even if the dispute settlement procedure is used, the Commission could only determine that the employer had the right to do what it was doing.
PN2363
MR HOR: That is correct, your Honour, and we would make a number of other submissions in relation to the dispute settlement procedure.
PN2364
THE DEPUTY PRESIDENT: No, go on.
PN2365
MR HOR: So just by way of context, your Honour, and I don't propose to read all of these submissions at length to you, but we would say that what has in fact transpired here is that the company for legitimate business reasons, acting in accordance with its rights under the award, has in a fair, transparent and consultative process introduced a change to one of its rooms on its plant that affects - and it is not disputed - 40 of its 400 production associates. We would actually say, your Honour, that notwithstanding the provisions in the appendix to the award whereby such a change can be introduced on one week's notice, having regard to all of the steps that the company has followed, this actually ranks as a model change management exercise.
PN2366
It hasn't acted strictly in accordance with the one week's notice. It has gone significantly above that in terms of actual notice provided. It has gone significantly above that in terms of the compensation to affected associates. It has gone significantly above that in terms of the consultation process which on the union's case is all motivated by this notification of bargaining period. We say the chronology deals with that issue squarely on its head, not just the immediate chronology, your Honour, of this process over the last three months, but, in fact, the entire last few years whereby it is the evidence before the Commission that there is changing between the three and four shift patterns.
PN2367
THE DEPUTY PRESIDENT: So you say this is just another change?
PN2368
MR HOR: This is just another change that has been necessitated by legitimate operational factors, that is in no way motivated by either the notification of bargaining period or, indeed, any sentiments - - -
PN2369
THE DEPUTY PRESIDENT: Well, I was pointed to the evidence of Mr Everitt as an example of a company using a bogus production needs claim. Is that fair?
PN2370
MR HOR: I would say it is grossly unfair, your Honour.
PN2371
THE DEPUTY PRESIDENT: Why is that?
PN2372
MR HOR: What was being sought by the particular delegate in that particular case was on one view entirely inconsistent with his contractual obligations to the company. The company has not sought to impede the legitimate attendance of a number of delegates at these proceedings. It has asked for some co-operation as part of that process. It needs to run its business. It needs to have people to run that business and in relation to that being somehow bogus as an operational need, I think it squarely challenges the importance that the company needs to place on effective communication and procedures being followed in relation to absence from work.
PN2373
THE DEPUTY PRESIDENT: Well, it is bogus because according to the evidence, according to that evidence, the reason changes. It starts off as being operational reasons and then at the end, as I recall, the manager says something which is inconsistent with that. Where is it again, that reference? Is it 844?
PN2374
MR HOR: It starts at 842.
PN2375
THE DEPUTY PRESIDENT: And you see there at the end it says, at the end of 842:
PN2376
And then on leaving the room, he said to me, look, it is like this, Darren. You should be able to attend all these meetings and be relieved from your duties to attend these meetings while maybe your role is not even required.
PN2377
So the suggestion there - well, the interpretation taken there seems to be that it starts off as saying we need you for production reasons and then it ends up as, well, the interpretation placed by witnesses, it turns into a threat, that is the interpretation placed by the witness, rightly or wrongly.
PN2378
MR HOR: Your Honour, all I can say in relation to that and we deliberately haven't adduced evidence responding to that because, in our view, it wasn't relevant to the application and certainly it wasn't addressed in my friend's outline as being a point that he intended to rely on for the purposes of submissions.
PN2379
THE DEPUTY PRESIDENT: Well, it arose during your cross-examination, so it wasn't their evidence. It was evidence that arose in the course of cross-examination and I am sure, if I may say so, it was not any lack of skill on your part that led to that. It was simply the witness produced that evidence, out of the blue if you like, so it is out of the blue from them, out of the blue for you and now it is before me and we have to deal with it, like it or not.
PN2380
MR HOR: All I can say, your Honour, on that point is that I am instructed that that particular matter was taken up by the company with the particular manager.
PN2381
THE DEPUTY PRESIDENT: If there is any evidence to be had, it will be from sworn witnesses.
PN2382
MR HOR: I appreciate that, your Honour.
PN2383
THE DEPUTY PRESIDENT: And I will rely on the evidence - I think Ms Saunders had something to say on it and I will look at that evidence as well as - - -
PN2384
MR HOR: Yes, and there was also an issue of credibility of that particular witness that was addressed in terms of his appraisals that I addressed with Ms Saunders in evidence, whereby I think it was that witness's evidence that he had not had appraisals for the last three years.
PN2385
THE DEPUTY PRESIDENT: And you say that was wrong?
PN2386
MR HOR: We say that was wrong on the evidence and we say that that is an important issue going towards the credibility of that particular witness, but I don't intend to place too much stock on - - -
PN2387
THE DEPUTY PRESIDENT: Just remind me, did you put that lack of credibility to the witness in cross-examination? I don't think you did, did you?
PN2388
MR HOR: Your Honour, there wasn't - - -
PN2389
THE DEPUTY PRESIDENT: You didn't challenge his evidence and say that was wrong.
PN2390
MR HOR: I had no information on it at that point, your Honour.
PN2391
THE DEPUTY PRESIDENT: I see.
PN2392
MR HOR: It was something that was offered by the witness to Mr Hale in examination in chief.
PN2393
THE DEPUTY PRESIDENT: Well, I am reluctant to make a finding against his credibility if he hasn't been given an opportunity to explain what he said.
PN2394
MR HOR: That would have necessitated calling the witness back, your Honour, given that the reputation arose in Ms Saunders' evidence.
PN2395
THE DEPUTY PRESIDENT: Well, he may have an explanation, for all we know, such as he forgot. I don't know.
PN2396
MR HOR: It is quite possible, your Honour. It is our submission - - -
PN2397
THE DEPUTY PRESIDENT: There is a variety of explanations for such a lapse and memory would have to be a strong point. I mean, recalling the minutiae of every appraisal, in every document you receive from management is not necessarily an easy thing to do. I suppose appraisals are quite a serious matter, aren't they?
PN2398
MR HOR: Yes. Well, we would say it wasn't actually about the minutiae of those appraisals, your Honour, as to whether or not appraisals took place and it is my understanding that it was Mr Hale's intention to draw some link between that not happening and pay rises not being given and union affiliations, etcetera. Perhaps, your Honour, if I could, having regard to the time, just progress with - - -
PN2399
THE DEPUTY PRESIDENT: Please do. I don't think we will finish today, anyway, because Mr Hale as a right of reply.
PN2400
MR HOR: Yes. While I will try my best, your Honour, I can't - - -
PN2401
THE DEPUTY PRESIDENT: No, I am interrupting you and trying to ask you relevant questions, so keep going, please.
PN2402
MR HOR: Thank you, your Honour, so another important point at 1.3 of the submissions, your Honour, is that this roster change does not relate to the introduction of something that has never existed at the Ballarat site. Importantly, it represents a reversion to the working arrangements that existed in this particular area less than 15 months ago. More importantly, that is a scheme is work that is specifically contemplated by the award, so, yes, there has been a movement away from that in the last 15 months, but existing custom and practice, your Honour, we would submit the evidence before the Commission on that point is that these changes do take place. As far as the bite-size wrapping room is concerned, the change went back to the way it was pre-February 2003. Now, there might be differing evidence before the Commission as to the extent to which associates had anticipated that change, certainly submit that it is available on one view that there was some awareness that the change might happen, notwithstanding the specific addressing of those issues.
PN2403
THE DEPUTY PRESIDENT: Yes, so there was the consultation in February, wasn't it? That is H3 and that was a kind of general thing and then the next consultation was when again?
PN2404
MR HOR: We say that in February of '04, so in February of '03 the change happens to the continuous roster.
PN2405
THE DEPUTY PRESIDENT: That is right, yes.
PN2406
MR HOR: In February '04 at a communication session conducted by the vice-president of the division, Mario Parnas, it was flagged that there would be changes made to certain areas and that was dealt with squarely. In early April, it was formally communicated to affected associates that - - -
PN2407
THE DEPUTY PRESIDENT: That was the letter, was it?
PN2408
MR HOR: There was a communication session followed up by the confirmatory letter.
PN2409
THE DEPUTY PRESIDENT: Followed up by the letter, so there is three communications in a sense from your client to the associates.
PN2410
MR HOR: That is correct, your Honour, and there is no evidence before the Commission that when the changes have happened previously, it was done in any way differently to that.
PN2411
THE DEPUTY PRESIDENT: Well, there is not a lot of evidence about previous occasions, really.
PN2412
MR HOR: Well, the evidence that is there, your Honour, is that the changes did happen previously.
PN2413
THE DEPUTY PRESIDENT: Indeed.
PN2414
MR HOR: And the evidence that also is there is that on no previous occasion have we been before the Commission in relation to that change and certainly there were members of the union affected by those changes as much as they are affected by these changes now and we will address that, I will address that, your Honour, in dealing with the issue of why we are actually here as part of a 127 application and, in fact, who really is motivated by the EBA process that is on foot. I will come back to that, your Honour.
PN2415
THE DEPUTY PRESIDENT: Please do. Are you suggesting it is the unions, not the employees?
PN2416
MR HOR: Well, that is my suggestion, your Honour, and the basis for that submission is that Ms Pope's evidence to the Commission was that she was not aware of appendix B to the award until such time as this matter was first before you. The application - - -
PN2417
THE DEPUTY PRESIDENT: Where is the transcript reference to that? If you refer to evidence, please refer to transcript, because I will have to check everything, unfortunately. It gives me no pleasure to say that, I can tell you. Take your time. Come back to it, if you like. Give me a reference on the next occasion, tomorrow.
PN2418
MR HOR: Thank you. So just in relation to that submission, your Honour, we would say and will find the transcript reference shortly, but a lot turns on that and the union's application for its orders on its face, your Honour, makes no reference to appendix B to the award. Now, notwithstanding that there is no reference to appendix B to the award and it is my friend's submission that these are done in a hurry and the other points that he has made in relation to that document, they are alleging serious breaches of the award as the primary basis - - -
PN2419
THE DEPUTY PRESIDENT: Well, they did say all such other grounds as they may advance during the hearing, I think, at the end and Mr Hale said that was such other ground.
PN2420
MR HOR: He did, your Honour, but we would say that the document needs to be read substantively as containing the basis for the application that the union was making and that specifically related to - - -
PN2421
THE DEPUTY PRESIDENT: Well, look, the application is before me now, so I have to deal with it, okay.
PN2422
MR HOR: Yes, and in relation to the main body of that application, your Honour, we would say that it talks about breaches of the Confectioners Award and Metals Award in that it alleges that those awards provide for the method of changing shifts to be by agreement in respect of the Confectioners Award and the method of changing shifts under the Metals Award also to be by agreement.
PN2423
Now, we actually dispute that those awards have that effect in any case, but specifically in relation to the Confectioners Award, the appendix B deals squarely with the issue of whether or not agreement is needed in order for the change of shifts, so on that basis, your Honour, what we would say is that the dispute settlement procedure point has been roped in to the application in recognition of the fact that appendix B actually deals with this issue in a manner that I would suggest had it been known to the union at the time the application was filed possibly would have led to it being framed in a different way and the dispute settlement procedure which isn't referred to on the face of the application is something that has been added to the application, if I could put it in that way.
PN2424
In relation to the evidence, your Honour, that is before you, the Confectioners Award remains the award on our submission that regulates the terms and conditions of employment and I will deal with the Metals Award points that have been made by Mr Jose later. We would urge the Commission to have regard to its own records in relation to the history of that particular award and the appendix. I had sought to provide some assistance.
PN2425
THE DEPUTY PRESIDENT: No, thank you for that. It was very useful.
PN2426
MR HOR: In relation to the statements, your Honour, we rely on the statements of Ms Saunders and Mr Wilkins as well as the - - -
PN2427
THE DEPUTY PRESIDENT: You mentioned the dispute settlement procedure point. Let me put this to you. On the version of the AMWU, on 8 April 2004 the AMWU put you in dispute under the dispute settlement procedure, they say, then 6.4 means, given that this is really a collective issue involving some whatever it is, 40 or so employees in the bite-size wrapping room and it is a matter of urgency, given that the change is imminent, it was quite appropriate that instead of having individual discussions with 40 employees, which would be time consuming, duplicating and so on, you simply skipped that stage and bypassed that stage and to the Commission stage, Commission conciliation, so they say that is what they did. In doing that, the status quo provision is invoked and you haven't complied with the status quo provision, so that is their version. What do you say about that?
PN2428
MR HOR: What we say in relation to that, your Honour, is that the date on which the application for orders under 127 was filed was 20 April. The date on which the changes to the bite-size wrapping room were scheduled at that stage to go through was 3 May. That is a period of just under two weeks. If it is the union's reliance on the urgency aspect, then we say that doesn't fly on the facts. There was two clear weeks or one day short of two clear weeks whereby each of the steps of the procedure could validly have been followed. We say on the reading of the dispute resolution procedure in the award, it clearly contemplates that there will be an individual affected employee.
PN2429
THE DEPUTY PRESIDENT: Does it? 6.4 involves the number of employees concerned may make it appropriate for any stage of the process to be bypassed. I mean, if this is not such a case, when would there be such a case?
PN2430
MR HOR: Well, we would say that what the award is contemplating is the opportunity for the parties to resolve the dispute at as low a level as could possibly be resolved.
PN2431
THE DEPUTY PRESIDENT: No, that is true, but 6.4 says given the number of employees concerned, it may be appropriate to bypass that. Is says it. I mean, like it or not, that is what is says. Now, if this is not a case, given that it is a collective change to an entire shift involving 40 employees or whatever to the bite-size wrapping room, they are all affected in a similar way, why isn't it appropriate in this case and if not in this case, what case would it be appropriate for that? When would clause 6.4 operate, if it doesn't operate now?
PN2432
MR HOR: Well, certainly, your Honour, clause 6.4 is there and does allow for that scope for numerous employees to be represented and, indeed, the earlier stages of the process to be bypassed, but what we would say is that on the facts before the Commission, the AMWU has not produced any evidence from an individual affected by the bite-size wrapping room changes as part of its application. The company has gone to numerous lengths to ascertain individual effects or the individual circumstances of its associates who would be affected by that change. Ms Saunders' evidence was that there were five associates both in terms of who contacted her directly and who she was made aware of by the union and gave evidence to the effect that she took significant steps, to the extent that she could within the limitations of the - - -
PN2433
THE DEPUTY PRESIDENT: Are you saying that the AMWUs notification, if that is what it is under the dispute settlement procedure, was a nullity because they can't produce an individual affected? Is that right?
PN2434
MR HOR: That is precisely what we are saying and that is what we are saying is a valid reading available to the Commission of the dispute settlement procedure in the Confectioners Award and certainly to the extent that there is provision for the earlier steps of that process to be bypassed, I could certainly understand that if the union was first made aware of this on 1 May, that an application to the Commission not for orders under section 127, mind you, your Honour, but, rather, a notification of dispute under section 99 which would have been the appropriate course of action if, in fact, the union was following the dispute settlement procedure prescribed in the award.
PN2435
THE DEPUTY PRESIDENT: Yes, that is a very formal reading of Commission procedures which I am not entirely sure is consistent with section 110 and other provisions of the Act.
PN2436
MR HOR: Well, your Honour, if I could draw your attention to - - -
PN2437
THE DEPUTY PRESIDENT: I take your point.
PN2438
MR HOR: - - - some authorities on this, it is at point 4.9 of my submissions. Now, in that particular case, your Honour, there was - - -
PN2439
THE DEPUTY PRESIDENT: Sorry, point what?
PN2440
MR HOR: 4.9 of my submissions. Sorry, I am jumping ahead, your Honour, just in response to the point.
PN2441
THE DEPUTY PRESIDENT: Okay, and what happened in that print?
PN2442
MR HOR: Now, in that particular case, your Honour, there was a range of bases - sorry, it is print 935979.
PN2443
THE DEPUTY PRESIDENT: Do you have a copy?
PN2444
MR HOR: I have a single copy of it, your Honour.
PN2445
THE DEPUTY PRESIDENT: Thank you. I think there was no status quo provision in that dispute settlement procedure, by the looks of it, which is different to the present one.
PN2446
MR HOR: Yes, the case is different in a number of respects. There was a certified agreement, your Honour, there for starters, but the point of that particular case that I was seeking to make, your Honour, was that there is some commentary in that decision and you have my only copy, so I can't turn you to it at the moment, but there is some authority in that particular case - - -
PN2447
THE DEPUTY PRESIDENT: Which paragraphs? I can find it. Go on.
PN2448
MR HOR: - - - for the proposition that notwithstanding the Commission's powers under section 127 and the principles where by the discretion should be exercised there, the application or the ability of a party to make an application under section 127 is not appropriate where there are procedures in place that can validly be addressed by way of a dispute settlement procedure which would give the Commission powers to intervene in relation to that dispute.
PN2449
THE DEPUTY PRESIDENT: Yes, the Commission does say at paragraph 64:
PN2450
The use of section 127 as a mechanism to avoid compliance with the certified agreement dispute resolution mechanisms appears to be inconsistent with section 92 of the Act.
PN2451
MR HOR: That is precisely the paragraph.
PN2452
THE DEPUTY PRESIDENT: And then it has potential to either party the option to arrive at an agreed solution by imposing an order in the place of a conciliation process.
PN2453
MR HOR: That is correct, your Honour, and of particular relevance in these circumstances is given this application is filed some 13 days before, we say that the non-compliance by the union with the dispute settlement procedure is apparent.
PN2454
THE DEPUTY PRESIDENT: The non-compliance? Why? What have they done that they should have done?
PN2455
MR HOR: They should have, in our submission, your Honour, worked through each of the steps that are contemplated. There was certainly the time to do so, if it was the case that there were only five associates and there has been no evidence produced that there was any more than five associates, apart from the general propositions that have been put largely from the bench that this affected numerous associates and they were general issues. Mr Jose's evidence before the Commission was that while a participant in that particular meeting, he didn't actually have an affected members as a result of this particular change.
PN2456
THE DEPUTY PRESIDENT: That is interesting, so I suppose the evidence I have to deal with is the evidence of the witnesses, Ms Pope, Mr Everitt and others as to the alleged general effect or otherwise. There is the fact that none of the invitations to change shift have been signed by any employee. I think that is not in dispute and then there is the lack of any individual employees affected appearing which is your point and then there is the evidence of your witnesses as to general effects of complaints or whatever.
PN2457
MR HOR: And the preparedness of the company on its evidence to deal with those issues if they were presented to it and, indeed, the actual steps taken in - - -
PN2458
THE DEPUTY PRESIDENT: So are you saying really that in substance there is no dispute with your workforce? Is that what you are saying?
PN2459
MR HOR: That is what we are saying, your Honour, and it was always the company's intention as part of working through this change to where possible deal with each such individual grievance were it to be presented to it.
PN2460
THE DEPUTY PRESIDENT: So your workforce are happy with what you are doing?
PN2461
MR HOR: Well, the evidence before the Commission, your Honour, is that the shift that was changed on last Sunday night - sorry, the Sunday before last and everyone attended and everyone has attended in accordance with the new patterns. Now, I acknowledge, your Honour, there is the outstanding issue that my friend has alluded to in relation to the letter not being signed and what we say in relation to that is that as part of standard company practice, whenever there is going to be an individual adjustment to an associate's work patterns, a confirmatory letter of this kind is going to be issued to it. It isn't seeking agreement.
PN2462
THE DEPUTY PRESIDENT: Well, I am sorry to interrupt you, but I don't think we will finish tonight, anyway, so if it is convenient, this might be an appropriate time, but one thing that did occur to me arising from what you have just said is this. If there is an issue between you as to what the workforce think, one way of resolving it would be to have a secret ballot of the bite-size wrapping room employees conducted by the Commission. There is provision for that and for both sides to agree to abide by the result.
PN2463
That is one way and I would ask both sides to have a think about that and advise me tomorrow if there is any prospect of that being a solution. Secondly, if I could make this observation, I won't myself engage in any conciliation at this late stage. I think that would be quite inappropriate, but I would say this, that a number of quite unpleasant allegations have been made, going both ways, really, and it is a great pity, it would be a great pity if such matters had to be dealt with in a decision by me.
PN2464
Well, it may be a necessity, but there may be a way to avoid that which may help all sides, or both sides and one way of doing that would be, for example, to have some sort of compromise on the status quo, for example, not one shift or another, but some sort of set of 24-hours, seven days, perhaps 24 hours, six days, something of that sort, so it is a situation where neither side gets everything they want, if you like, and that be put in place and brief discussions under the auspices of the Commission take place on the issues that we have mentioned in conciliation.
PN2465
There were some 11 issues I think raised by the AMWU, the unions. We could work through and produce a report. Now, there is no prejudice to either side. I am saying this - this is something I would like both sides to think about. If there is no prospect, I don't want either side to say, well, I agree, but they don't or anything of the sort, because that might be considered prejudicial. I would simply like advice tomorrow morning, if there is agreement between you or not. All right? But I would urge you to think about those two proposals, think about the alternatives and to make a decision according to your interests and it is a serious suggestion.
PN2466
I would like the parties to think about the alternatives, whatever they may be, but as I said, I don't want to know the views of any individual party on them. That might be considered prejudicial by the other side, I don't know, so I would just like to be advised if there is agreement or not. If there is, I think that would have many advantages. That is all I will say. I think we scheduled tomorrow at 2.15 for the final day, so we will adjourn until tomorrow at 2.15, unless there is anything else. Is there? Thank you very much.
ADJOURNED UNTIL TUESDAY, 11 MAY 2004 [4.30pm]
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