C2003/6392, Transcript of Proceedings [2004] AIRCTrans 1956 (27 May 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS

O/N 7110
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER FOGGO

C2003/6392

HOLDEN LIMITED

and

AUTOMOTIVE, FOOD, METALS,
ENGINEERING, PRINTING AND
KINDRED INDUSTRIES UNION

Application under section 170LW of the Act
for settlement of dispute re alleged
industrial action

MELBOURNE

10.07 AM, FRIDAY, 14 MAY 2004

Continued from 13.11.03

PN88

MR R. DALTON: I seek leave to appear for Holden Limited and with me is MR L. SMITH and MR B. CREES.

PN89

MR A. COLE: I appear with MR D. NUNNS for the Australian Manufacturing Workers' Union.

PN90

MR G. MAAS: I am from the National Union of Workers and appearing with me is MR J. BARLOW.

PN91

THE COMMISSIONER: Yes, thank you. What is the view of the unions in relation to leave?

PN92

MR COLE: I have no objection, Commissioner.

PN93

MR MAAS: No objection, Commissioner.

PN94

THE COMMISSIONER: Yes, thank you. Leave is granted, Mr Dalton.

PN95

MR DALTON: Thanks, Commissioner. This matter was brought back on at the request of Holden Limited. It was previously before you back in November last year. The subject matter of the dispute concerns attempts by HSPO, which is Holden Spare Parts Organisation, the operations based at Dandenong, to review ways in which it could improve its operations. You may recall that you made a recommendation on the 19 November.

PN96

The dispute that was before you, the specific issue that was before you was whether HSPO could include employees and shop stewards in a working party review. That working party review was raised by the company as something that should occur around October last year and the unions at that time were opposed to a process involving employees at that time. There was a suspicion that the working party review was really a de facto review of outsourcing proposals and that the procedures in clause 5.5 of the agreement should be applied rather than a working party review that involved individual employees.

PN97

Commissioner, I have a bundle of documents that I would like to hand to you. The first one is a copy of the recommendation that you made and you will see at paragraph 14, Commissioner, you say that with regard to the operation of the working party on the review of export consolidation and packaging the Commission recommends that the working party continue in operation as it was originally constituted including employee representatives. And in the following paragraph the recommendation reads:

PN98

At the time that any recommendations or strategies are developed by the working party the processes for formal consultation with the unions on issues specified in the 2001 agreement should come into operation.

PN99

Commissioner, I am instructed that following that the parties considered the content of the recommendations and unfortunately the unions and the shop stewards were not prepared to participate in the working party review. The result of that was that employees were reluctant to be involved as well. So, unfortunately, the opportunity to directly involve the employees in that working party was not taken up at the relevant time. The working party continued nonetheless and it involved supervisors and management, and as part of its deliberations it engaged directly with the employees in the relevant areas that were the subject of the review.

PN100

The overall strategic direction that the working party review was aimed at reviewing was to look for new business opportunities for HSPO and to take those opportunities to secure the future of the operations. Management realised that HSPO was well-placed to take advantage of new business opportunities because it is a new warehouse, it is a relatively large facility and currently it has all of Holden's domestic and export territories. Also, Holden and General Motors globally has direct interests in the distribution of several other models in Australia. They include Daewoo, Saab and Subaru.

PN101

Now, HSPO doesn't currently handle the parts and distribution functions for those particular models but it is keen to do them in the future and the working party review looked at ways in which that new business could be handled. The result of the working party review was that there were four specific proposals to outsource certain activities and processes. Now, when we think of outsourcing we normally think of a company sending off a particular work or process to a third party and the result of which is that there is less work to be done by that employer and job losses result, or there may be a diminution in the employment security as third parties increasingly are handling the work that was previously done by the employer.

PN102

This particular set of outsourcing proposals doesn't involve that at all because, in essence, what the working party review proposals have come up with are ways in which we can make space at Dandenong to handle significant new work. Daewoo and Saab are ready to go. They are ready to use HSPO through Dandenong and this is a terrific new business opportunity that management is keen to seize and to handle efficiently. It doesn't have the space to handle that work at the moment and these four outsourcing proposals are directed at activities and processes that aren't central to what HSPO does that can be outsourced to third parties to do which creates space and frees up labour to handle the Daewoo and the Saab accounts.

PN103

THE COMMISSIONER: Are you talking about physical space, or space within the scheduling, or?

PN104

MR DALTON: Physical space, yes. Physical space within the warehouse. I will explain when I go through the specific proposals, Commissioner. You will see the next document after your recommendation is an HSPO site committee meeting. Now, this is the day where the proposals were explained and tabled to the site committee. And on page 2 you will see at item 10, Workplace Review. "BC" is Barry Crees, who is the General Manager of the National Distribution Centre at Dandenong:

PN105

BC advised that a number of business cases have been prepared in consultation with employees of the affected areas. The business cases have been signed off by John ..... who agreed that we need to take the opportunity to seize new business growth and improve our competitive capability. We are therefore invoking the outsourcing clause of the EBA, 5.5.1.

PN106

Commissioner, remember your recommendation saying the working party can go ahead but if there comes a point where there is a decision to outsource, then 5.5 needs to apply because that requires the company to consult regarding implementation of any outsourcing:

PN107

Outsourcing proposals on each activity were provided for review, each handout stating the reason behind the activity, why it is being pursued, the space it will free up and all people management issues.

PN108

Barry Crees advised that there are several working options within each activity and no-one will lose their job as a result of outsourcing. And then you will see that there are dot points. They are the four outsourcing proposals. Now, the next document, Commissioner, there are four of them actually, are the export - sorry, are the outsourcing proposals. The first one is export consolidation, the second one is sheet metal packaging, the third one is case making packaging and the fourth one is glass packaging. Now, in each of these proposals there is a summary of what the company proposes to do and - - -

PN109

THE COMMISSIONER: Excuse me, Mr Dalton. Yes, thank you.

PN110

MR DALTON: Commissioner, before I give you a summary of each of those four proposals I should explain that the HSPO operations work day shift and afternoon shift. Day shift handles in-bound work and receivals. So there will be materials coming in from all over the place, could be from Melbourne, from Adelaide, from the domestic manufacturing operations that Holden has, but also there will be imported materials around the world coming in that HSPO handles because every Holden vehicle that is distributed in Australia, or in the export territories that HEO is responsible for, HSPO is responsible to supply the parts and handle the distribution.

PN111

So on day shift that is all managed. There is another process, and I emphasise the word "process" on day shift and that is export consolidation, and their job is to get boxes of parts, etcetera, lined up in rows ready to be put into shipping containers to be taken to the wharves for export. So it is almost a double-handling exercise, it is picking out the boxes and then putting them - lining them up in rows to be then put into a larger container. It is a freight forwarding function essentially.

PN112

Afternoon shift, their job is to handle all the orders. One of the important customer service functions for HSPO is that the dealerships have to put in their orders by 2 pm on a given day and afternoon shift starting from, I think, 3 pm handles those orders. They are there ready for, I think, in the key centres in Australia, Melbourne, Sydney, Adelaide, by 8 o'clock the next morning. So the afternoon shift handles those orders and it picks and sorts the orders from the warehouse and lines them up ready to be taken away by trucks.

PN113

On afternoon shift the three processes, glass packaging, sheet metal and case making, are done. So of the four areas where there is a proposal to outsource, three of them are on afternoon shift. The only one that is on day shift is the export consolidation. Now, export consolidation, I have explained what that is. The proposal is that that be handled by a freight-forwarding specialist. It will free up six employees and the idea is that those employees will be used in the core part of HSPOs operations which is the in-bound receival work and basically taking the parts out of the trucks and moving them into - or scanning them and then moving them into the appropriate place in the warehouse. Those extra six people are needed to handle the Daewoo account and the Saab account in the future.

PN114

The afternoon shift areas - if I deal, firstly, with case making. That is a classic non-core function. People are required to make wooden cases to make it easier to handle and distribute awkward items such as engines and body side frames. So, in effect, you have got a person who will be like a carpenter who is working with wood, saws, nail guns, etcetera, and constructing frames that are useful to carry these slightly awkward items. The proposal is that someone else do that, not HSPO, and that would free up two people to do the core part of HSPOs business, which is the picking and sorting and receival and despatch.

PN115

The sheetmetal area, what happens there is that HSPO receives very large boxes which will have 10 doors in them. Now, when it fills orders, no one wants 10 doors. They might want one door and, of course, that is handled on afternoon shift and it will be in the capital city that they are operating in by 8 o'clock the next morning. So what happens is, is you have got a bunch of people whose job it is to dismantle the big box and then re-pack each door. Again, HSPO doesn't regard that as its core business. It has to do it at the moment because no one else is separately packaging them.

PN116

What is proposed is that someone else does that. There are three people who are currently occupied on that task and the proposal is that they, again, go into the core part of HSPOs business. So on afternoon shift they will be in the warehouse picking and sorting boxes consistent with the orders that have been placed earlier that day.

PN117

The third area is the glass packaging and, again, what happens is HSPO receives large crates, so it is reducing bulk quantities into smaller quantities. So you might have a large crate of 10 windscreens. Now, on afternoon shift, as required, people are assigned to that area to make foam out of chemicals that are supplied by HSPO and then to effectively suspend each windscreen in the foam within a cardboard box. So it is making cardboard boxes and making foam and I am instructed it is not a terribly pleasant job and I don't think that anyone is going to be particularly disappointed in not having to be assigned to the glass packaging area on afternoon shift.

PN118

I am also instructed that no one is assigned there full time. It is essentially rotated through on an as needs basis. So no employees have to be transferred as a result of the proposal to get someone else to do that glass packaging. Pilkingtons, the domestic supplier of windscreens, are ready to go on the individual packaging. We only have to say the word. Similarly, for imported windscreens we can make arrangements for someone else to individually pack those windscreens so that they are appropriate to then be stored and then distributed once orders come in.

PN119

So the two key advantages in doing all of this from an operational perspective is that it frees up labour to concentrate on the things that HSPO really needs to do, which is to receive the goods and also to pick and sort the orders on afternoon shift. But it also, importantly, creates more warehouse space, warehouse space that if not created makes it impossible for HSPO to handle this new work.

PN120

At the moment the export consolidation area takes up a lot of space. I think it is over 2000 square metres of space. That space is taking receival area space, receival area space that has to be available if the Daewoo account is to be handled. The other areas will free up less space but significant space nonetheless. The big advantage of not having to take bulk crates of 10 doors and 10 windscreens is that you can more efficiently handle the receipt of goods which will, in turn, take up less space.

PN121

So instead of taking 10 doors at any one time someone else is just sending you in the doors as you need them and then you will put them in high stacking areas. It is more efficient use of space. Things are flowing in and flowing out more consistently with the actual requirements.

PN122

MR COLE: Commissioner, I don't want to cut in on Mr Dalton, but Mr Jones, in his position as chairman of the FVIU, this morning has faxed off to Mr Lincoln Smith, from the company, a letter - and I think it is probably appropriate to hand the - beg yours?

PN123

MR DALTON: I am going to get to that.

PN124

MR COLE: Well, we believe that a lot of the positions that are being put by Mr Dalton are addressed in the body of the letter that has been sent to the company this morning.

PN125

MR DALTON: Commissioner, I am happy to address you on that and I certainly was going to, but I thought it was important that before I deal with what is put in Mr Jones' letter that you understand the background and the proposals and the benefits that we see. So in a couple of minutes I am going to address you on this letter and hand you a copy of it.

PN126

THE COMMISSIONER: Yes, I think that - - -

PN127

MR DALTON: Commissioner, after 26 February there has been a series of communications with the unions about the proposals. I have got a document that summarises the communications. If I could hand a copy of that up to the Commission.

PN128

THE COMMISSIONER: With the unions, plural, or the union? You have been advising both AMWU and NUW?

PN129

MR DALTON: Yes, both unions, Commissioner.

PN130

THE COMMISSIONER: Yes.

PN131

MR DALTON: This starts with a review of the chronology of communications back in August 2003. So you can skip that, that is the lead-up to the recommendation that you made. So that is the first two pages. If you go to page 3, that starts with the recommendation that you issued, then there are various site committee meetings, working party review commences, etcetera, and I have gone through that. And then it deals with Thursday, 26.2.2004, site committee. And there is the presentation of the outsourcing proposals.

PN132

Now I don't want to take up too much of the Commission's time at this point, but you will see the summary of the chronology shows that the company has made extensive efforts to explain these proposals to the site, to the employees, to the site committee, to the employees affected, and to the union organisers. There has been an exchange of correspondence which is all of which is included in that initial bundle that I provided to you. You will see when you look through that summary, Commissioner, the company has made a number of efforts, including numerous invitations to the union organisers, to meet with the company to hear further on the proposals and the details and the reasons why the company thinks it is a good idea to go ahead with these four outsourcing proposals.

[10.30am]

PN133

There has been difficulty in getting any feedback from the union. There was a meeting on site on 15 April, which included a review of the particular areas, further discussions about the proposals, an agreement to provide paid meetings on day and afternoon shift on 22 April, which has now occurred, however the unions have not agreed to the outsourcing proposals. Now more recently, in recent days, well perhaps I should go back. The initial position of the unions, when they eventually gave some feedback on the proposals, was that they wouldn't oppose it provided the company agreed to an EBA that ensured that no one would be moved from day shift to afternoon shift, that there be no forced shift transfer.

PN134

Now the company - sorry - yes, I am instructed that they didn't specifically say that they would agree to the outsourcing proposals, they said they had agreed to talk about it if the company agreed to an EBA provision in those terms which prevented compulsory shift transfers. Now the company didn't regard that as an acceptable response for a number of reasons, and they are summarised in this document, that is on the last page you will see that there is a summary of a meeting on 30 April.

PN135

THE COMMISSIONER: Well, let us move to Mr Jones' response.

PN136

MR DALTON: Yes. Yes, Commissioner. We are a little bit disappointed by this letter, and I will hand you a copy of it.

EXHIBIT #H1 FIRST BUNDLE OF DOCUMENTS PROVIDED BY MR DALTON

EXHIBIT #H2 COMMUNICATION CHRONOLOGY

EXHIBIT #H3 MR JONES' LETTER DATED 14/05/2004

PN137

MR DALTON: Thanks, Commissioner.

PN138

THE COMMISSIONER: And what is disappointing about this?

PN139

MR DALTON: Commissioner - - -

PN140

THE COMMISSIONER: You only got three out of four, not four out of four.

PN141

MR DALTON: Yes, the reason we are disappointed in it is that it doesn't seem to take it any further. There is no agreement that any of the areas can be outsourced, although perhaps one can read between the lines that sheet metal packaging, case-making and glass packaging might bet through unopposed, but there is no specific agreement that they go ahead. It is made very clear that export consolidation is not agreed and will not proceed until such a time as agreement is reached between the parties.

PN142

Now, the reason it is disappointing is that we have made it clear that you can't just outsource some of these areas. Export consolidation is the largest area, it takes up over 2000 square metres in space, and it takes up the receival area. So it is not possible to move ahead with sheetmetal case making and glass packaging on the afternoon shifts and handle the Daewoo account and then the Saab account a bit later in the year if we don't have a result on export consolidation.

PN143

What is also disappointing about it, Commissioner, is that we have repeatedly said that there is no impact on jobs. No one loses their job as a result of this and, in fact, this is an exciting time for HSPO because it is getting significant new work and it is establishing that Dandenong site as the major warehousing operation for Holden, not only just for the Holden vehicles that Holden makes domestically or that Holden Services and its export territories, but these other models that Holden has an interest in distributing in Australia.

PN144

Surely that is going to create greater employment security for the HSPO employees. We see it as a very positive - not something to be suspicious about and not something to stonewall. One of the difficulties that we have got here, too, Commissioner, is that the Daewoo situation is that they have got their warehousing done in Homebush in Sydney. Their lease of that warehouse expires on 30 June, so there is a drop dead period. Now Mr Crees has backtracked from 30 June and he thinks there will not be enough time for HSPO to get its act together at Dandenong to handle the transition post-30 June to Daewoo unless it can commit to handling that account by 21 May.

PN145

So there is significant time pressure. It would be very disappointing if HSPO is forced into a situation where it has to pass up the very first new business opportunity that comes its way. No job losses, as I said, no impact on employees, there has been assurances given by this company over the last week that no one who is on day shift, so that is the export consolidation people, none of those people are going to be forced to go to afternoon shift, and that commitment is given for a period of six months.

PN146

So until the end of this year the company is committed that no one is going to be forced onto afternoon shift. Now it will review that situation at the end of the year and if there is a need to go - for anyone to go to afternoon shift, and that is by no means certain, then that will be reviewed and the subject of notification and discussions. In my submission, Commissioner, that is the only genuine concern that has been raised by employees - raised by the unions in opposition to these proposals.

PN147

All the other areas are afternoon shift anyway, the employees are just simply being asked to do work that most of them are skilled to do anyway. They work overtime in these areas, they have got the skills to work forklifts and do the picking and sorting, and they work overtime to handle orders, there is a fair bit of overtime, as I understand it, on afternoon shift. There are people in export consolidation, and in the other areas, who have been in those areas for a significant period of time, but they have got the skills to do the work and that is the core business of the company.

PN148

They are not losing any money, no one is going to be forced to go to afternoon shift. So in our submission, and having regard to the working review party efforts, the consultation, notification, discussions etcetera that has occurred since 26 February when the decision to outsource was announced, that the proposal should go ahead, the Daewoo account should not be compromised. And we seek the union's agreement today that the proposals go ahead in full on the basis of the assurances that I am giving on the record today that has already been communicated to the unions over the last week, no one is going to be forced to go to afternoon shift, and that commitment operates until the end of this year, those are my instructions, Commissioner.

PN149

THE COMMISSIONER: Yes, thank you. Mr Cole.

PN150

MR COLE: Thank you, Commissioner. Commissioner, there is a number of things that Mr Dalton has raised, but first let us go back to what we call pre-emption and process. We have an extant enterprise agreement between the parties which has got quite a detailed process through it. And indeed if you go through the process, it starts off really at 5.5.1, Outsourcing, and it talks about issues there and talks about if the agreement is not met in that particular area through those principles it will then - the facilities that are outlined in clause 5 will then come into play.

PN151

But what Mr Dalton is doing today, and we believe what the company is seeking to do today, is to pre-empt all of those processes. I mean, if we go through it, the discussion that has taken place, then we get to - there is no agreement at that stage we get to the state consultative committee. We haven't been through that process. And then we have got the mechanism, the very mechanism, through a review board and then a mechanism for reaching agreement between the parties. If you go to the second-last paragraph of clause 5.5, Commissioner, you will then see:

PN152

If an industrial action occurs...

PN153

Da da da da:

PN154

...or action taken shall come - the matter moves immediately to step 4, and then it can be referred to the Australian Industrial Relations Commission.

PN155

So the company is trying to get around the processes that were agreed to and hammered out in that last agreement negotiations. And it took a long time to get that set of words agreed between the parties. So the company simply say, "Okay, we can't get an agreement up front, we will run the matter into the Commission and we will get up and we will make these big stories and claims to the Commission without going through the proper procedures that have been agreed in the extant agreement to try and resolve the issues, so what we want to do, well, would we rather deal with the cause and the effect".

PN156

And what Mr Dalton is saying is that he wants the unions to look at the impact of the effect on its employees rather than the merits of the cause, that is the merits of whether something should be outsourced or whether it shouldn't be outsourced. And that is determined by the process which, as I say, has been circumvented by the company. Now I am advised by the employees, and I am sure if the Commission wants to make itself available, that there is enough room out there now, including the receiving area, to put Daewoo and Saab in its entirety right this moment.

PN157

So if the company come to us and say to us tomorrow, "We want to do it," I am pretty sure that we will say, "Yes, do it, put it into place." I mean, what the company is basically saying is that we have got to get rid of all this staff to make room for the other staff, right, so we have got to get rid of these four components, or four entities, to make room for the new components coming in. And they say that they need to get rid of the export consolidation area to free up space for the receivals. Well, Commissioner, you don't have to be a Rhodes scholar - I mean, they are not building onto the factory - don't have to be a Rhodes scholar to figure out that if you can fill up the space with Saab and Daewoo you don't need a bigger receival area.

PN158

I mean, you wouldn't have to do that. It is just a nonsense argument as is the argument on employment security. On the afternoon shift, we say, that we are 21 people down. For a significant period of time now we have averaged it out that on every day there is at least 6 point - casuals employed on every day rather than the company making the employees permanent and giving them employment security. So with what Mr Dalton says about employment security is a nonsense too. I mean, if the company is fair dinkum about employment security, well, why wouldn't they, then, make these people permanent rather than have them going on an ongoing basis as casual employees.

PN159

THE COMMISSIONER: How long have they been going on the long-term basis do you say?

PN160

MR COLE: Two years. And as I understand from my briefing from the stewards that they first notified of the potential changes in February this year and there has been approximately several meetings - six or seven meetings of the working party that Mr Dalton has addressed, I think, in H2 and I haven't had a chance to read through that - take the stewards through that to see if that is an accurate reflection of where they are. It may well be that it is correct but that is a significant number of meetings outlined there.

PN161

But we put a position today through the chairman of the FVIU to find a process for a way forward. Now, we believe that we should go through that process. The company should give those commitments that are asked for in that particular process, in that letter from Mr Jones. If the company is not willing to do that, then we say, well, then, you must go through the processes outlined in the agreement. If we need to get somebody in from outside, well, you have got the ability under the agreement to be able to do that to assist. If we need to get the state consultative committee together, well, we will do that to move the thing forward.

PN162

But we are not going to place ourselves in a position, Commissioner, where the company can simply call the matter on and say, well, we have got all these grandiose plans, the unions won't agree to it, so we want to come to the Commission. We went down through the process and at the last stage, if agreement can't be reached after you have gone through all of those principles that are involved in that process, well, then, come to the Commission. So the unions' position - we have put to the company a position from the FVIU. It has a number of steps that can be taken and can be negotiated through the mechanism for reaching agreement. And if we have a look at the mechanism for reaching agreement between the parties in step 3:

PN163

If necessary, the state consultative committee will be convened to discuss the proposed implementation of change. The state consultative committee will, once considering the issue, determine on the following ...(reads)... where agreement cannot be reached refer the matter to the review board.

PN164

So we think we are probably at the stage, now, where we need to go to the next step of the process. And we believe that the letter from Mr Jones and Mr Smith is a reasonable outcome for ongoing negotiations. We say that we are prepared to discuss three of the areas that they have raised. We are not prepared to discuss at this time - or we are not prepared to discuss and agree to, at this time, the fourth one.

PN165

THE COMMISSIONER: So you are not prepared to even discuss it?

PN166

MR COLE: Discuss or - and agree to it at this stage. I mean, the company can raise issues with us whenever they want. Certainly the from the FBIU perspective, I have been advised that at the moment we are prepared to move forward in this manner, and that is the way it should be. Because, as I point out, even if we don't easily agree to outsourcing provisions in enterprise agreements - I think the Commission was well aware of that from the Commission as currently constituted, its time in the industry - the union has opposed outsourcing with some vigour and we will continue to do that where we believe it is not in the interests of the employees whom we represent.

PN167

But we also say that when we engage in agreements we expect the company to comply, and we are not going to have a situation where we simply skip all the processes in the agreement to give to the company what they are looking for. Commissioner, I am advised by Mr Maas that is exactly what happened with the disc brakes at Fishermans Bend.

PN168

THE COMMISSIONER: No, it is completely different.

PN169

MR COLE: Well, that is what I am advised. So I might leave it at that, Commissioner, and it might be useful to go into conference after my colleague makes his contribution to try and move things forward. If the Commission pleases.

PN170

THE COMMISSIONER: Yes, thank you. Yes, Mr Maas.

PN171

MR MAAS: Thank you, Commissioner. In essence, we concur with the submissions made by Mr Cole. The NUW, however, would like it to be put on the record. Firstly, we have been informed about - being kept informed, firstly, of today's proceeding. I do note that we did seek leave to intervene and that was granted by yourself and yet we still don't seem to be a party to these proceedings in terms of receiving notice of listings and so on. It has been a little bit like piecing a jigsaw puzzle together over the last few days to, firstly, find out exactly what was going on here. So I would just, firstly, like that put on the record that if we could be notified of any further proceedings.

PN172

THE COMMISSIONER: Yes. Well, perhaps if you advise the Commission in good time that that is the case, then that will occur as a matter of fact.

PN173

MR MAAS: With respect, Commissioner, I have been in contact with your chambers over the last few days - - -

PN174

THE COMMISSIONER: And it has been sorted.

PN175

MR MAAS: - - - as well.

PN176

THE COMMISSIONER: And were we advised prior to that?

PN177

MR MAAS: We didn't receive the notice of listing. I don't know, there seems to be a little bit of paranoia. If I might say, with respect, we did try to get information concerning dates and - with the notice of listing - - -

PN178

THE COMMISSIONER: What I am saying, if my associate does not know that there is an interested party and passes it on to me, you are not going to get a notice of listing if we don't know that the party is interested.

PN179

MR MAAS: What we know, Commissioner, is that leave was sought - - -

PN180

THE COMMISSIONER: When did you ask to be advised about this matter?

PN181

MR MAAS: Well, I heard from our branch - - -

PN182

THE COMMISSIONER: When did the NUW ask the Commission to keep it advised of this matter?

PN183

MR MAAS: A couple of days ago. It was only when we found out about it and so that was when we rang.

PN184

THE COMMISSIONER: Why don't you formally advise the Commission - unfortunately, my associate is ill and away, because if she is here you would probably see the daggers across the table. We can't read your minds. Unless you formally advise us that you have an interest in a matter, how are we to think: oh, HSPO, now we know the AMWU vehicle division is involved; how about we ring up any other union and see if they would like to come along? If you don't send formal advice, how is the Commission to know that you have an interest in the area?

PN185

MR MAAS: With respect, Commissioner, it is almost like a Catch 22 situation in that we were trying to find out exactly, firstly, what the matter was, the matter number, and that it was related to outsourcing. Once we found that out, I did speak with your chambers and then I was able to get in touch with the AMWU. But all I am really seeking at this stage is that from now on we are kept informed.

PN186

THE COMMISSIONER: You are a party in these proceedings and you will get everything that arises. But in terms of your first point, I suggest you go and talk to someone with a lot of experience to find out how these things are dealt with. I am not going to have you draw into some sort of question the fact that my associate may not have been operating properly.

PN187

MR MAAS: That wasn't my intention, Commissioner.

PN188

THE COMMISSIONER: Well, that is the way it is coming across.

PN189

MR MAAS: No, it is just that we - what I am saying is that if it was the company's application, we would have liked to have been served with the notice of listing.

PN190

THE COMMISSIONER: Right. Well, why don't you take that issue up with the company instead of asking the Commission to second guess every one of the hundreds of applications it gets on to who the parties might be? What you are asking is just bordering on the nonsense. If it was the company's application, they know full well that you have an interest in it. So afterwards go and beat up Mr Smith or something, but just direct your, you know, problems to where they should be, not to where you are trying to slate them home.

PN191

MR MAAS: I might - - -

PN192

THE COMMISSIONER: You are on an absolute thrashing here, Mr Maas. My suggestion to you would be to move on to your next point.

PN193

MR MAAS: Yes, Commissioner, I will move on to my next point. As I said, in essence, we concur with the submissions of Mr Cole. We also say that the points that are outlined in the letter from Mr Jones to Mr Smith would be the course of strategy that be adopted. And also we note from paragraph 15 of your recommendations that now that we are at this point that perhaps the formal processes that should be followed are those as stipulated within the EBA, if the Commission pleases.

PN194

THE COMMISSIONER: Thank you. All right, we will move into conference.

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #H1 FIRST BUNDLE OF DOCUMENTS PROVIDED BY MR DALTON PN137
EXHIBIT #H2 COMMUNICATION CHRONOLOGY PN137
EXHIBIT #H3 MR JONES' LETTER DATED 14/05/2004 PN137