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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
ADMINISTRATOR APPOINTED
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 7264
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER HINGLEY
AG2004/3440
APPLICATION FOR VARIATION OF
CERTIFIED AGREEMENT TO REMOVE
AMBIGUITY
Application under section 170MD(6) of the Act
by Natra Pty Limited re the agreement contains
uncertainties with respect to the rate of accrual
of annual, sick and long service leave for which
payment in lieu is to be made on redundancy
MELBOURNE
11.18 AM, THURSDAY, 27 MAY 2004
PN1
MR M. ADDISON: I think we have agreed it is my onus, Commissioner, so I will appear first, I guess. I appear on behalf of the Australian Manufacturing Workers' Union, together with MS L. POPE and the delegates from the site.
PN2
THE COMMISSIONER: What is it you agree, did you say?
PN3
MR ADDISON: The onus with regard to the current application is on me, rather than on the company.
PN4
THE COMMISSIONER: My understanding was it was to be a joint application from the settlement the other day.
PN5
MR ADDISON: It is, Commissioner, but the allegation that we put is that there is an agreement and Mr Hull and I had a discussion with regard to that matter prior to coming in and we have agreed that it is up to me to prove there is an agreement, effectively.
PN6
MR P. HULL: I should seek leave to appear on behalf of Natra Pty Ltd.
PN7
THE COMMISSIONER: Assume that is not opposed. Leave is granted, Mr Hull.
PN8
MR HULL: Thank you, sir. With me is MR A. KATHRINER from the company. I will have three witnesses. I understand Mr Pope and perhaps one of the delegates will be witness. I would ask that you request that they leave the room please.
PN9
MR ADDISON: Yes, Commissioner, in regard to that Ms Pope, I intend to put in the box first, Gary Djalikian, I propose to put in second. So I would ask Mr Djalikian to wait outside and maybe it is appropriate that we then proceed down that path.
PN10
THE COMMISSIONER: Yes. Would you like to wait outside.
PN11
MR HULL: The only other thing, sir, it won't surprise you to know that I'm quite happy for Mr Addison to bear the onus on the matter.
PN12
MR ADDISON: Yes.
PN13
MR HULL: No difficulty me agreeing to that at all. As I understand the situation, yes, it was agreed to be a joint application and it was actually put by the company formerly, but its a joint application. I think there is acknowledgment and, no doubt, we will both address you on the question of whether or not there is an uncertainty but there is no issue between us on that issue.
PN14
THE COMMISSIONER: Good.
PN15
MR ADDISON: I thought we have agreed there is an uncertainty.
PN16
MR HULL: Yes. So hopefully it will be a matter of witness evidence and the decision on the principle and facts. I do have - as you would appreciate we have all been struggling. For my three witnesses I have statements that I can hand up. I can either do it later when it is my turn, or I can do it now, if that is convenient for you. I've given Mr Addison copies, but only of two of my witnesses - - -
PN17
THE COMMISSIONER: You can do it later if you like, I mean, I'm not going to get time to read it.
PN18
MR HULL: No, that is fine, thank you, sir.
PN19
THE COMMISSIONER: Thank you.
PN20
MR ADDISON: Just in terms of that housekeeping, Commissioner, I haven't been in a position to provide Mr Hull - and I will not be in a position to provide yourself with any witness statements from my witnesses. I've had some administrative difficulties with regard to that. I also got a message from your associate which I picked up at about 6 o'clock last night following the MH in front of Commissioner Whelan. We have requested some outlines of submissions, I apologise, I have just not been able to do that.
PN21
THE COMMISSIONER: That is fine. It wasn't a direction it was just a request.
PN22
MR ADDISON: Yes. It's just been impossible. The time line has been very constrained. As you know, Commissioner, the company is due to retrench, I think it is 17 employees tomorrow.
PN23
THE COMMISSIONER: Yes.
PN24
MR ADDISON: I did report to the employees on Friday of last week that it was the Commission's intention to try and finalise this matter by tomorrow, so we have all been under a fairly strict time regime. Commissioner, in terms of the application, I don't take any issue with the application, except of course whilst we agreed there would be a joint application, that agreement was based on the fact that we agreed that there was an ambiguity in the terms of the certified agreement.
PN25
THE COMMISSIONER: Or an uncertainty perhaps.
PN26
MR ADDISON: Yes, an ambiguity or uncertainty in terms of the agreement. Whilst I'm happy for the former 36 to be viewed as a joint application, the AMWU does not concede a number of the matters in the application, obviously. We don't concede for instance clause 4, that the uncertainty is the incorrect means of calculation and we don't concede the attachment, which is the table proposed by my friend which lays that across. What we say, Commissioner, is that accruals accrue on a 40-hour time basis. So for instance in terms of the first element on the table - the annual leave element - we would say that that would be appropriately changed from 150 to table 160S. The other accruals would follow on the same mathematical basis.
PN27
Now, we will put some evidence before the Commission there would be accrual in terms of annual leave - and I've only done some on annual leave - is in fact commensurate with accruals on a 40-hour basis. The employees currently accrue 3.06 hours per week towards annual leave, and if that calculation is done it comes to 160 hours per year. We say that that is a factual matter that the Commission will need to take into account and, honestly, that is the best way to resolve the uncertainty. I might just give my friend a copy of some payslips - three payslips in a row which demonstrate that proposition.
PN28
In terms of housekeeping, Commissioner, what I've said to Mr Hull is, probably it is appropriate that my two witnesses go first, then we will take an adjournment and that might well be the luncheon break at this point in time.
PN29
THE COMMISSIONER: I had in mind breaking just before 1.
PN30
MR ADDISON: Yes, but I think it would be appropriate to take an adjournment anyway. I haven't read the material that I've been given and Mr Hull has not heard the evidence and he will obviously need to consider that before he begins his cross-examination. Now, I don't know whether Mr Hull wants me to run one witness and then have the adjournment, or run both witnesses and then recalls them.
PN31
THE COMMISSIONER: Well, let us see what happens. Let us see where we get to.
PN32
PN33
MR ADDISON: Linda, could you repeat your full name and address for the transcript please?---All right. Linda Pope (address supplied)
PN34
Are you currently employed by the AMWU?---Yes, I am.
PN35
In what capacity are you employed by the AMWU?---An organiser with the food division.
PN36
Were you previously employed by the general division of the union?---I was, yes.
PN37
For how long were you an organiser with the general division?---Four years.
PN38
As part of your organising responsibilities were you responsible for Natra?---I was, yes.
PN39
Can you tell the Commission how long you held that responsibility?---Roughly, 4 years.
PN40
Roughly 4 years, okay. Now, what was the time span of that?---I think '98 - the end of '98 to 2002.
PN41
2002?---Yes.
PN42
Okay, so you would have been involved in at least one, if not two enterprise bargaining agreements?---I was, yes.
PN43
Were you involved in the 2000 enterprise bargaining agreement?---I was, yes.
**** LINDA POPE XN MR ADDISON
PN44
That was a fairly strenuous round of bargaining, wasn't it?---Yes, it was.
PN45
Were the employees in Natra involved in that bargaining round?---They were, yes.
PN46
That resulted in the 2000 enterprise bargaining agreement, didn't it?---It did, that's correct.
PN47
Were there any difficulties during that bargaining agreement?---There was, yes.
PN48
Could you tell us what occurred?---Well, it was the campaign 2000 bargaining agreement and there was - for want of a better terminology - it was a bit of argy bargy with the AIG and our union on the bargaining notices and what have you. We also had just prior to the 2000 round some rumours going around the site that they were going to have redundancies, to such an extent that people didn't believe that they would - the company would still be in existence 2 years down the track from that.
PN49
Right?---So, yeah, it was a very - - -
PN50
Was there a wages claim with regard to the bargaining agreement?---There was a wages claim, yes.
PN51
What was that wages claim?---The wages claim was 5, 5 and 5.
PN52
Okay. You said there was some fear of redundancies. You said the people thought the company wouldn't be in existence 2 years down the track. In terms of the bargaining, was the 5, 5 and 5 claim maintained?---It was, yes, yes.
**** LINDA POPE XN MR ADDISON
PN53
Were there any applications to the Commission during the course of that bargaining agreement?---Yes, the company made an application to the Commission to remove our bargaining period.
PN54
Okay. So there was an MW application?---Yes.
PN55
Who heard that?---Sorry?
PN56
Who heard that?---Munro J.
PN57
Okay. Now, can you describe for the Commission what occurred through that MW application process?---There was lots of conciliation, there was also - parts of it were on transcript where they had Ford, Holden and I think Toyota might have come in to give evidence. There was a lot of - I suppose, Munro J pointed us out to the meeting room adjoining Court 1 in this building to have discussions on outstanding issues.
PN58
Right, so you had discussions with the company?---Yes.
PN59
With Natra?---Yes.
PN60
Who was involved in those discussions?---I'm trying to think. There was an external HR person and I'm not sure if it was a guy called Trevor - I'm having trouble trying to think of the name - of his last name.
PN61
Can I just ask you on that point because I indicated to Mr Hull yesterday that I thought Mr Grundy was involved. Was Mr Grundy involved to your knowledge?---In all honesty, I can't say which one. There was an external HR person, I'm not sure if it was Trevor Smith now or John Grundy, but there was an external HR person involved.
**** LINDA POPE XN MR ADDISON
PN62
Was one of those two, yes. Who else?---There was Louise Russell from Clayton Utz.
PN63
Yes?---There was Denver Alvis, I think Mr Beaty from Austrim - - -
PN64
Who is Denver Alvis?---Denver Alvis, I think was a plant manager at Natra at the time.
PN65
Okay?---Mr Beaty was - because naturally at that stage was part of Austrim.
PN66
Right?---There was - he was present and I'm not sure who else.
PN67
That conciliation - who was involved from the union, sorry?---Myself.
PN68
Yes?---Mr Dagarble.
PN69
Yes?---And Mr Nelson at times.
PN70
With delegates - - -
PN71
MR HULL: Sorry, and Mr?
PN72
MR ADDISON: Nelson?---And delegates, yes. Mr Djalikian was involved. Allie - I can't think of his last name, he was a delegate at the time, and a guy called Jayantha - I can't think of his last name either.
PN73
Okay, now, you said there was significant conciliation?---Yes.
**** LINDA POPE XN MR ADDISON
PN74
How many conciliation sessions did you have? You don't have to be absolutely accurate, we all understand that 2000 is a long time ago, so a ballpark I think - - -
PN75
THE COMMISSIONER: You haven't got to guess because you are under oath, you can only say what you know is so.
PN76
MR ADDISON: Yes, that is true?---Well, I believe there was three.
PN77
You believe there was three, okay. Did they occur over a period of time or - - -?---Yes.
PN78
The discussions that occurred, were they confined to the 5, 5 and 5 issues?---No, they weren't. There was - as I said the membership at Natra believed that there was going to be, basically, a plant closure. They wanted an increase in the redundancy package.
PN79
Yes?---And when I say "an increase" I mean they wanted I think it was calculated at 3 weeks per year of service at the time and not 4.
PN80
Yes?---They wanted that increased and they wanted the cap lifted because it was capped - the redundancy package was capped, so we had significant discussions about, you know, the ability to raise the cap and to change the weeks per year of service, which the company was in the early stages extremely reluctant to do.
PN81
Okay. Were the discussions that went beyond the cap and the quantum of weeks per year of service?---Only from the company's perspective where they indicated that they were loathe to raise the cap on the basis that they already paid out rather generously in the way that they calculated it.
**** LINDA POPE XN MR ADDISON
PN82
Okay. Did they explain to you how they calculated it?---Yes, they - well, I already had an understanding of how they calculated it because I had spoken to Liddy Satori, who was the previous plant manager prior but, yes, they made reference to the fact that it was - all the accruals were done on 40 hours and paid out at the 38-hour rate, so it was - it was just an understanding that's the way it was always done.
PN83
Now, can you recall who said that?---I think it was - this is - I have to say I can't recall exactly who it was. I think it was Greg Beaty, but I'm not - - -
PN84
So it was the person from Austrim?---Austrim, yes.
PN85
And Austrim at that point in time were the owners of Natra?---Yes.
PN86
Okay. They said to you: we accrue at 40 hours and we pay out at 38?---Yes.
PN87
Now, just so I can be clear - and you may not be the appropriate person to answer this, Gary might be, I don't know, but can you tell us why there is two different rates at Natra?---Can I tell you, no, I'm sorry, Maurice I can't. It's just - I don't know if there was an early agreement struck or how it - how it came about but that's - it was always done that way and I don't know, it was a new one on me, but it was just generally accepted. We didn't - we never made a claim for that in any way to alter any of that, the company didn't make a claim at that time either, they just pointed out that that is why they weren't comfortable with moving the cap so, I think the end result was the members decided to discount their pay increase to increase the cap.
PN88
Okay, and was it reported to the members - the conversation that you had with Mr Beaty about, I guess, the generosity of the package?---In the report back meetings that we had where we said that the company was reluctant to raise the capital was because they already believed that they pay out rather generously and I don't think we went into great detail, other than to say that was what they said.
**** LINDA POPE XN MR ADDISON
PN89
No further questions, Commissioner.
PN90
PN91
MR HULL: Ms Pope, just to take up that last point when you refer to the company saying that they believed that they were paying out rather generously, you mean by that do you the fact that they were accruing at a 40-hour rate and then paying out at the 38-hour basis, is that what you mean?---That's what I mean, yes, Mr Hull.
PN92
All right. You say it was Mr Beaty?---I believe it was Mr Beaty.
PN93
Who expressly pointed that out?---I already knew that that was the way it was calculated because I'd had discussions with Mr Satori but, yes, I believe it was.
PN94
Right. You say that you were organising toward the end of '98 to 2002?---That's correct.
PN95
When did you become aware of this strange arrangement where there was the 40 and the 38 arrangement?---There had been previously a few redundancies - only small numbers - so it started to increase obviously - or the rumour was they were going to have major redundancies around the campaign 2000, but prior to that there had been the odd group of redundancies, you know one, two, three, whatever when they changed - when they restructured.
PN96
Right?---And we - - -
PN97
There were some redundancies in 1999?---I believe so, yes.
**** LINDA POPE XXN MR HULL
PN98
Yes. Some more in 2000 - in early 2000?---I can't be actually specific, I don't have my diary but - - -
PN99
But is it your evidence that for those redundancies this arrangement of paying out on a 38-hour week, but accruing entitlements on a 40-hour week applied?---I believe that's what has happened, yes.
PN100
When you say, you believe that has happened, do you have any doubt about that?---Well, I haven't got their payslips in front of me, Mr Hull, but I believe that's what happened.
PN101
Well, if I was to put those payslips in front of you all those payslips would show that that didn't happen, that they didn't get paid any extra, that the arrangement on which they were accrued was the same result, either accrued on a 40-hour basis and paid out on a 40-hour basis, or accrued on a 38-hour basis and paid out on a 38-hour basis. What would you say to that?---I'd say I wasn't aware that that was what happened at the time.
PN102
But that would fundamentally contradict what you have just said about your awareness of the arrangement, wouldn't it?---Well, it was my understanding that is the way it has always been done so - - -
PN103
If that it is your understanding that that was always the case and it had not have happened, surely, that would have led to some dispute?---Had I been aware of it at the time it would have, yes.
PN104
If that was the case, that previous redundancies or redundancies during '99, 2000, up to that time had been paid out on that basis, it is right, isn't it, that the only basis on which you have to say that there is an agreement for paying out on 38, but accruing on a 40-hour basis with respect to leave was either your misapprehension, or the words of Mr Beaty?---I suppose you could draw that conclusion, yes, Mr Hull.
**** LINDA POPE XXN MR HULL
PN105
Okay. I think I need to give the Commission notice that we will want to call Mr Beaty. We haven't done so, that is the only essential witness which will refute this evidence unless we - no doubt, depending on how the Commission otherwise views the rest of the evidence I need to put - - -
PN106
THE COMMISSIONER: I do have a - - -
PN107
MR HULL: I need to put the Commission on notice about that and that is clearly going to cause some difficulty with respect to the Commission being able to determine the matter. I would at least raise the possibility that there is going to be a difficulty before tomorrow. I don't know if the Commission wants to - well, perhaps this is something that could be considered when I've finished with the cross-examination.
PN108
THE COMMISSIONER: I think so. Can I just ask the witness a question. The agreement you are talking about as to calculation of accrual. Do you concede that that was a superior benefit than applying the award?---Yes, I do.
PN109
MR HULL: The agreement that you reached during these negotiations that was documented?---The agreement that was reached?
PN110
Yes?---Yes.
PN111
In the EBA?---Yes.
PN112
I would like to hand the witness a bundle of documents and that is one for the Commission. Two bundles. One for the witness and one for the Commission. There is two documents there, Ms Pope, the first one is a document dated 5 September and the second is dated 3 October. If I can just take you to the - please stop me if you need more time to look at it but I will just take you to the first one to start with on the front page. If you could just look over that document for me please?---Okay.
**** LINDA POPE XXN MR HULL
PN113
Do you recollect that document?---I have a vague recollection of it, Mr Hull, yes.
PN114
Perhaps I could ask you, does it on the basis of your recollection, reflect the agreement that was reached?---This is the agreement that has been reached.
PN115
Now, the effect of paying out at a 30-hour rate accruals, or entitlements that were accrued on a 40-hour basis is a fairly significant - - -
PN116
THE COMMISSIONER: You meant "38" didn't you?
PN117
MR HULL: Sorry.
PN118
Paying out accruals at a 30-hour week rate that were paying out entitlements that were accrued at a 40-hour rate - paying them out at a 38-hour rate is a fairly significant change, would you agree with that?---I do, yes.
PN119
Can you tell me, was it normally the way of conducting the affairs for the union that you would not commit a significant matter such as that to writing?---In my - - -
PN120
Yes?---If it was my agreement, I would expect it to be in writing, yes.
PN121
All right, so do you have any explanation for it not being in writing?---Do I have?
PN122
Yes?---No, I don't.
**** LINDA POPE XXN MR HULL
PN123
Can I take you to the following document, and I will just ask you to read through that.
PN124
MR ADDISON: Are you going to tender that?
PN125
MR HULL: Yes, I will. Yes, if I could tender the document of 5 September - I think I will just tender the bundle, sir.
PN126
PN127
MR HULL: Yes, thank you.
PN128
Would you agree with me that that document, the 2-page document, accurately reflects the agreement that was reached for the 2000 certified agreement?---Yes, I do.
PN129
It is on its face, but there is no reference there at all to this question of the 38-hour pay out and 40-hour accrual, is there?---No, there isn't.
PN130
Mr Dagarble still works for the union, does not it?---He does, yes.
PN131
This is your evidence, he was present during these negotiations?---Not all the negotiations on-site but, certainly, the ones in the Commission, yes.
PN132
He was present at the time when the reference was made, you say, by Mr Beaty to the pay out on a 38-hour basis of entitlements accrued on a 40-hour week?---Yes, he would have.
**** LINDA POPE XXN MR HULL
PN133
Do you have any knowledge as to why Mr Dagarble has not been called to give evidence?---I've only been called at short notice, Mr Hull, I don't know, no.
PN134
If I could just - just so that it is quite clear, an agreement was reached, was it not, to increase the weekly, or the basis on which retrenchment was paid from 3 weeks per year of service to 4 weeks?---Only if they discounted their last year's pay rise, yes.
PN135
They discounted their last year's pay rise?---Yes.
PN136
So that was on the basis that rather than a 5 per cent increase of 5 per cent and then 5 per cent. The last year was a lesser percentage increase?---Yes, and that was against our advice to but, yes, they did.
PN137
The cap was also increased, there was an agreement to increase part of that?---Yes, and there was a process put in place for volunteers.
PN138
So that had nothing to do with the supposed generosity of the company?---No, I'm saying that the company didn't want to have any discussions around it because they already believed it was generous. The way that we got discussions around it was, we discounted the last year's pay rise.
PN139
You can't quite remember whether Mr Smith was there, or whether Mr Grundy was there, is that right?---I have to say, Mr Hulls, during Campaign 2000 I - - -
PN140
No "s"?---Mr Hull, sorry. I attended many meetings and to actually - without getting my diary - digging my previous diary out - the exact cast of characters - I have a vague recollection of most of the characters, but all of characters I can't.
**** LINDA POPE XXN MR HULL
PN141
So there were many meetings and your evidence is that this was a fairly intense time, is that right, industrially?---It was a very intense time industrially, yes.
PN142
But it is still your evidence that you clearly recollect Mr Beaty referring to this matter?---This is because the redundancy package was a very important thing for these people outside of the Campaign 2000. The issue outside Campaign 2000 was their redundancy package.
PN143
Yes, but it is quite consistent - I mean, there is no question that a redundancy package would be quite an important feature, or concern for employees, particularly, if there are rumours going that the plant was going to close, that is right, and you would expect that, wouldn't you?---Yes.
PN144
At the time a lot of workplaces were working on 4 weeks per year of service?---Yes.
PN145
Yes. Here we have 3 so there is clearly room for an improvement there from your position?---Yes.
PN146
Similarly, at a number of places there would have been either no cap, or a cap that was much higher than the one that applied at Natra?---Absolutely.
PN147
Would that be right?---Yes.
PN148
What would you say to the suggestion that Mr Beaty simply wasn't at the meeting?---Which meeting.
**** LINDA POPE XXN MR HULL
PN149
The meeting that you are referring to, where he told you about the - he raised this matter of accrual? Could you be mistaken?---Mr Beaty was - there was meetings held with Mr Beaty - I don't believe I was mistaken - I have to say Mr Beaty didn't attend in all the Commission hearings, he stayed downstairs in the coffee shop during that process, which is Mr Beaty's want - I don't know if you've had any dealings with him but he's a bit of a strange character and he refused to actually be present in the courtroom - part of it - but he did attend meetings on this issue.
PN150
Just to be absolutely clear on this, he made this reference in negotiations in a conference room near Room 1 in this building, is that right?---I believe so.
PN151
You believe so?---Yes.
PN152
At the same time you can't remember whether Mr Smith or Mr Grundy was present?---That's true.
PN153
Was that 4 years ago?---Some people you remember better than others, Mr Hull.
PN154
Well, it is quite conceivable that you might just be mistaken about this, isn't it?---Mistaken about who said it?
PN155
Mistaken about the - well, yes, mistaken about who said it. Mistaken about the fact that it was said at all?---I'm not mistaken about the fact that it was said at all.
PN156
The fact that this was an agreed manner of determining entitlements, or pay out of entitlements for leave, this was common knowledge throughout the Natra employees?---My understanding is it is, yes.
**** LINDA POPE XXN MR HULL
PN157
That is all I have, thank you, sir.
PN158
PN159
MR ADDISON: Linda, N1. I think your evidence was that the claim was 5, 5 and 5. N1 describes the outcome as 5, 5 and 2. That is a 3 per cent discount on the final payment?---Absolutely.
PN160
Would you consider that to be a significant discount?---That's a significant discount.
PN161
Yes. Now, Mr Hull asked you with regard to the question of the 40-hour accrual, as opposed to the 30-hour payment. He described that to you as a change. Was it a change?---Not my understanding it wasn't a change, no.
PN162
No. In fact, I think your evidence was that Mr Beaty explained to you the process, is that correct?---Well, he referred to it, yes.
PN163
Yes. Now, Mr Hull said to you: such a significant change would be in writing. Did you write N1?---No, I didn't.
PN164
No, you didn't. Was the 40-hour accrual question a change, or the normal?---It was the normal.
PN165
Nothing further, Commissioner.
**** LINDA POPE RXN MR ADDISON
PN166
THE COMMISSIONER: So why would he explain it if it was the norm?---No, no, when we put the claim in Commissioner, for the improvement to the redundancy agreement we were having discussions both on-site and in the Commission, he indicated that it was already a generous package. That was the reason it was already a generous package, therefore, he wasn't going to agree to an increase in the redundancy package. The only way we could get that was to discount pay increase until - for the improvements that we wanted, and they were the improvements that we wanted: a lifting of the cap, 4 weeks instead of 3 weeks, and an agreed process. That's what we wanted.
PN167
PN168
PN169
MR ADDISON: Thank you. Gary, can you repeat your full name and address for the transcript, please?---My address?
PN170
Yes, full name and address?---Gary Djalikian (address supplied).
PN171
Gary, are you currently employed by Natra?---Yes.
PN172
Are you the AMWU delegate at Natra?---Yes.
PN173
Can I ask how long you have been employed by Natra?---I completed 11 years last week.
PN174
So 11 years?---Yes.
PN175
In what capacity are you employed by Natra?---As in?
PN176
What is your classification?---C11.
PN177
Gary, can I hand you a document? Now, Gary, what I've handed you is three payslips. They are your payslips, and they have all just been photocopied onto one sheet, can you confirm that?---Yes.
PN178
Can I tender that, Commissioner?
PN179
**** GARY DJALIKIAN XN MR ADDISON
PN180
MR ADDISON: Now, I hope they have been photocopied in the right order. I did it, so if they are not it is my fault. Let us just have a look? No, they have not been. The top payslip is for the pay period 6 May '04?---Yes.
PN181
The second payslip for the period - no they are in the right order, 13 May '04?---Yes.
PN182
The third payslip is for 20 May '04?---Yes.
PN183
Yes, now, can I ask you to look at the calculation of your rise. Forget the first payslip. The first payslip says that you did 24 hours ordinary time?---Yes.
PN184
Then it says two RDOs, is that correct?---Yes.
PN185
So you took two RDOs in that week?---Two RDOs.
PN186
Okay. Now, when you add 24, 8, and 8, that comes to a total of 40 hours, does it?---Mm.
PN187
Yes. Go to the next one. Your rate is calculated at $16.91 in that payslip?---Yes.
PN188
You worked for 40 hours, that is correct, isn't it?---40 hours.
PN189
Similarly, in the next payslip you have worked 38.02 and you have got UNAPPLW or P 1.98. Can I ask what that signifies?---I took 1.98, whatever, unpaid leave.
**** GARY DJALIKIAN XN MR ADDISON
PN190
You would normally have worked that 1.98?---Mm.
PN191
Okay. Now, can I ask you to go and have a look at the annual leave accrual. You will see two entries. It is on the right-hand side of the document. There's leave as, "annual." Then it has got, "entitle and pro-rata." Can you explain to the Commission what entitle and pro-rata are meant to signify?---Entitle means, as I know it, that I was - is I work and I didn't took the annual leave, and the pro-rata is the one that's current annual leave.
PN192
So, as I understand it, a pro-rata column is your accrual for this year?---Mm.
PN193
Your entitlement is what you have got in the bank, unable to take, is that correct?---Yes.
PN194
Okay. If you look at the pro-rata accrual from top to bottom, it increases by a factor each week, and that factor is constant on these three payslips. I put it to you Gary that it is 3.06 hours accrual per week, do you agree with that?---Yes.
PN195
Commissioner, that is a matter of fact, rather than anything else, but I can assure the Commission that it is 3.06, because I've done the calculation this morning, unless my maths are out, of course - unless my maths are wrong, but I assure you they are not. Now, Gary, you have been employed for a significant period of time at Natra?---Yes.
PN196
In terms of the enterprise agreement, and maybe if I can just hand you the '98 and '96 agreements? Have you got that?
PN197
MR HULL: I've got my '98 here.
PN198
MR ADDISON: If I can just take you to that agreement, and I don't know if the Commission has got copies of the agreement?
**** GARY DJALIKIAN XN MR ADDISON
PN199
THE COMMISSIONER: No, I haven't, but I will follow you anyway.
PN200
MR ADDISON: Yes, thank you, Commissioner. I just haven't had an opportunity to photocopy them. If you go to the '98 agreement which you have got there, and you turn it over to the appendix. I think it is appendix B, that is the second appendix. So flick through about that far, Gary, and you will come to page 105, which is headed: Retrenchment Agreement between Natra and the AMWU?---The retrenchment, yes.
PN201
As a matter of fact, if you could flick over a couple of pages, to clause 11 of that agreement?---Yes.
PN202
Clause 11 reads in part: pay rates in relation to all aspects of this agreement would be at the rate used for calculation of overtime?---Yes.
PN203
Now, you are aware of this agreement, and have been for some time, are you?---Yes.
PN204
Yes, can you explain to the Commission what you understand that clause to mean?---This clause is written, whenever we get retrenched, we get paid at the overtime rates.
PN205
There are two rates along side that?---Yes.
PN206
There's a higher and a lower rate?---You mean hourly - hours 38?
PN207
Hourly, yes. The hourly rate we were talking about?---Yes, 38 and 40, yes.
PN208
Yes, now the 40-hour rate, what is that used for?---This one?
**** GARY DJALIKIAN XN MR ADDISON
PN209
No, no, sorry. You have got two rates?---Yes.
PN210
You have got the lower and the higher?---Yes.
PN211
You agree that the lower rate is the 40-hour rate, do you?---Mm.
PN212
The higher rate is the 38-hour rate?---38.
PN213
So in terms of that lower rate, the 40-hour rate, what is that used for?---The long service. Not the - the 4 weeks.
PN214
Not in terms of redundancy, in terms of payment - normal payment?---What do you mean?
PN215
My friend will stop me if I'm going too far.
PN216
THE COMMISSIONER: Well, I won't. It is a difficult question, I think?---Yes.
PN217
MR ADDISON: It is.
PN218
MR HULL: We will be calling Mr Daley, who is the finance director. I'm quite happy - - -
PN219
MR ADDISON: For these questions to be put to him?
PN220
MR HULL: Yes, and I think that is - - -
**** GARY DJALIKIAN XN MR ADDISON
PN221
MR ADDISON: I don't think there's any contest on these facts, anyway, Commissioner. I just want the - - -
PN222
THE COMMISSIONER: I'm sure Mr Daley can put this view.
PN223
MR ADDISON: Yes, yes, I'm content with that.
PN224
In terms of accruals - you understand by in terms of accruals I'm talking about the long service leave, the sick-leave?---RDOs.
PN225
And the annual leave accruals, for the purposes of redundancy. Do you know how they are calculated?---38-hour week, I think - those, if I'm - yes, on overtime rate.
PN226
They appeared on the overtime rate?---Yes, yes.
PN227
They appeared on the overtime rate?---Yes.
PN228
Do you know how they accrued?---I'm not good mathematician, but I tell you it's like a 38-hour week. It's accrued.
PN229
38-hour week accrual, with regard to annual leave, will give you an accrual rate of 2.93 hours per week. A 40-hour week will give you an accrual rate of 3.06 hours per week. Can I take you back to your payslips, back to where you were. Actually, I've got the pro-rata report. That pro-rata accrual is at 3.06, isn't it?---Yes, if you add - yes.
PN230
THE COMMISSIONER: Can you show me that on this payslip?
**** GARY DJALIKIAN XN MR ADDISON
PN231
MR ADDISON: Yes, if you go down the pro-rata column, Commissioner, which is on the far right-hand side?
PN232
THE COMMISSIONER: Yes, I see that.
PN233
MR ADDISON: It starts 153.7 hours, on the first pay slip. The next payslip, which is the next week, the pro-rata is 156.84, which is an increase of 3.06.
PN234
THE COMMISSIONER: I see.
PN235
MR ADDISON: If you go down to the next one it is 159.
PN236
THE COMMISSIONER: You have done that calculation?
PN237
MR ADDISON: No - yes, I have.
PN238
THE COMMISSIONER: It does not show.
PN239
MR ADDISON: I have.
PN240
THE COMMISSIONER: I see.
PN241
MR ADDISON: I'm positive - - -
PN242
MR HULL: There's no dispute.
**** GARY DJALIKIAN XN MR ADDISON
PN243
MR ADDISON: That is correct.
PN244
THE COMMISSIONER: Thank you for that. I thought it might have shown the rate, that is all.
PN245
MR ADDISON: Yes. Now, in terms of that, the accrual would be based on 40 hours, wouldn't it?---Yes.
PN246
Yes. Now, you have been there for 11 years?---Mm.
PN247
Has there been in that 11 years, to your knowledge, any change in the way the accruals are done?---Not since I became a shop steward.
PN248
Okay, and how long?---That's on 7 years.
PN249
Okay?---It's still the same. From the year I started as a shop steward until now is still the same agreement.
PN250
Okay, so it has been the same for 7 years?---Yes.
PN251
There was a dispute last week at the company, wasn't there?---Yes.
PN252
That dispute centred on payment of accruals, didn't it?---Yes.
**** GARY DJALIKIAN XN MR ADDISON
PN253
Can you explain to the Commission what gave rise to that dispute? Just in your own words, how it all came about, Gary?---Natra tried to retrench - Natra they retrenched 17 people on the basis they got paid as their overtime rate. They said: after 1 week we discuss one of a member. There was a husband and wife. The husband got paid overtime rate, and his wife when she got her pay thing she said, Gary, there is something wrong, or to my collect - the shop steward. We checked. We figure out that the husband got paid as overtime rate, not his wife. We went to the management. We asked them, they said: we did, we paid the wrong - how do you say? Double payment to those 17, and we have to fix whatever we did wrong. We told our member. Our member, they weren't happy. They said: all right, then, we have to go and put the picket line. We put the picket line, the management came back. They said: all right, those 17 people that is going to be retrenched, we paid them as an overtime rate, but the rest that they stayed with they are working there, they are not going to get paid the overtime, just normal hourly rate.
PN254
Okay. So people who had accrued at the 40-hour rate, it accrued at an entitlement of the 40-hour rate, and the agreement says you get paid at the overtime rate?---Yes.
PN255
That's correct?---Yes.
PN256
Yes, to your knowledge has that always been the case in the past?---Yes.
PN257
Yes?---Yes.
PN258
Last week, is it your evidence that the management changed that position, and decided that they would either pay people out at the lower rate than the standard rate, and not the overtime rate?---Yes.
PN259
**** GARY DJALIKIAN XXN MR HULL
PN260
MR HULL: Would you prefer I called you Gary, or Mr Djalikian?---Gary.
PN261
Gary, fine?---Yes.
PN262
Okay?---I'm easy.
PN263
Good, that makes two of us. You have a steward for 7-odd years, and you have been with the company for about 11?---Yes.
PN264
Is that right, yes?---Around 7 years as a shop steward.
PN265
Sure, sure?---Yes.
PN266
You were involved with the negotiations for enterprise agreements?---Yes.
PN267
Were you involved with the negotiations for the 2000 enterprise agreement?---Yes.
PN268
Do you remember who was involved from the company?---From the company. Denver, I think - Denver Alvis, John - - -
PN269
It was Denver Alvis?---Yes.
PN270
Yes?---John Grundy.
PN271
John Grundy?---I don't recall the third one. I mean as a management, or as anyone?
**** GARY DJALIKIAN XXN MR HULL
PN272
As a management?---And Mark Parow. I think it was Mark Parow.
PN273
Mark Parow?---Yes.
PN274
Who is the current boss?---Yes.
PN275
Yes, are you sure about Mr Grundy?---I think so, or Trevor Smith. I don't - Trevor - we had Trevor Smith or John Grundy.
PN276
Okay. Do you know who Mr Greg Beaty is?---Natra's - I don't know what his role, but it's - - -
PN277
It is the parent company, isn't it?---Yes, yes.
PN278
He wasn't involved in any of these negotiations, was he?---I don't recall that.
PN279
You don't recall?---No.
PN280
You can't remember him being there, can you?---I don't recall, I do not.
PN281
This issue that caused the strife last week. Now, the real reason that you and the members were upset about that was that because in times before people got a higher pay-out for their entitlements for annual leave, sick-leave and - - -?---Yes.
PN282
That is right, yes. You say that they have always had that higher pay-out?---Yes.
**** GARY DJALIKIAN XXN MR HULL
PN283
Always?---Since I know myself, yes.
PN284
How do you know that?---Because when they get retrenched, they would come to me as the payroll, and show me if it's right or wrong.
PN285
Right, and you check them, do you?---Yes, but not every one of them.
PN286
No?---Where we got problems.
PN287
Right?---Yes.
PN288
What would you say if I said to you that back in 1999, when employee's were - let me start that again. There were a number of employee's made redundant in 1999, weren't there?---Mm.
PN289
Yes, do you remember that?---I think so. I don't - like I say, yes.
PN290
What would you say if I said to you that we are going to bring documentary evidence in the Commission to show that they didn't get paid higher for their annual leave, sick-leave, and long service leave, but they got paid in exactly the same way that the company said this time they should be paid. What would you say about that?---It would be the 17-1/2 per cent.
PN291
Sorry?---I mean, the overtime rate. That was the actual pay.
PN292
So you say that they used - - -?---Yes, yes.
PN293
So if I was to show you documents that said that wasn't the case, what would you say?---I have to see the document.
**** GARY DJALIKIAN XXN MR HULL
PN294
Can I hand you this document, please, to the witness. I am showing the witness a bundle of documents, the front page - hang on. There's five pages, sir.
PN295
THE COMMISSIONER: Yes.
PN296
MR HULL: The front page is headed up: Manual payments, and it has the name K. Basterfield, and the date 11 May '99. Do you remember this man?---Not by name.
PN297
No, Kevin? Kevin Basterfield?---Which area he used to work?
PN298
In the packing area?---No.
PN299
He worked there from 1961 to 1999?---No.
PN300
38 years, and you don't know him?---Like I said, by face, maybe. By name not, because I'm not computer.
PN301
Okay?---Yes.
PN302
Okay. I'm instructed that Kevin packed with Mr John Mote. Do you remember John Mote?---Yes, John Mote I know.
PN303
I don't know that it gets us very far. If I was to say to you that - well, let me take you to page 2, and you will see up the top there on the right-hand side there's a figure for a weekly rate. It is $522.10, do you see that - right at the top. I'm sorry, your - - -?---You are confusing me, now.
**** GARY DJALIKIAN XXN MR HULL
PN304
THE COMMISSIONER: Second page.
PN305
MR HULL: Gary?
PN306
THE COMMISSIONER: Yes?
PN307
MR HULL: I'm just concerned that the witness may not - English isn't your first language, is it?---No.
PN308
No, the witness may have trouble reading this document, sir, and therefore it is not fair of me to be putting questions to him.
PN309
MR ADDISON: Ask him if he can read it.
PN310
MR HULL: Can you read this document?---Yes, I reading. I can read.
PN311
Yes?---But you said 500. There's no $500 here.
PN312
522.10, at the top right-hand side, where your thumb is, it says, "weekly rate"?---Yes, yes.
PN313
Now, so that is 522.10. If we go down to the third row across, you will see, "untaken sick-leave"?---Yes.
PN314
You will see there in the column - three columns across, it says, "number of weeks"?---Yes.
**** GARY DJALIKIAN XXN MR HULL
PN315
There is 5.6 there. 5.6000. Now, if I was to tell you, and you will just have to believe me for the moment, if you like, that 5.6 by 522.10, and I've also done the arithmetic here, equals the figure next to it, that total amount of $2923.80, and that that represented payment for the leave owing at Mr Basterfield's ordinary weekly rate, what would you say?---I would say if I was a 63-year old I wouldn't notice if they pay me less or more. That's what I would tell you.
PN316
All right, but I'm not asking you that. I'm not asking what you would say if you were 63 years old. I'm asking you what you would say as the shop steward for Natra, who has just given us evidence, that for all of the time that you have been there for all of the 7 years, at least?---Yes.
PN317
For all of this time it has not been other than the pay-out for redundancies has been at the higher rate. Now, this clearly isn't, is it?---This one no, but I haven't got the calculator with me, so.
PN318
I'm happy to give you the time if you wish but, I think, Commissioner will accept, and you have my word for it, that that is the correct figure, as it is if you go down to the next row where we have annual leave, .39775 multiplied by 522.10 equals 207.67. That's at his normal weekly rate, not at a higher rate, his normal rate. What do you say to that?---I can't see nothing about this.
PN319
It is the same again if we go down to long service leave, where it shows 10.8259 weeks owing. His ordinary weekly rate, 522, you multiply that through, believe me, you get that answer, 5652.20. He is paid at the ordinary rate. So you are wrong, aren't you, in saying that it has always been?---Because he didn't give to complained, whoever can complain to me, it was always right.
PN320
So when was the first time anyone has ever complained? It was only this April, wasn't it, that anyone has complained?---Yes, we noticed that.
**** GARY DJALIKIAN XXN MR HULL
PN321
No one has ever complained before?---Because they weren't concerned, I think.
PN322
Well may be it is because - - -?---Because they didn't know what they were given yet.
PN323
Maybe because it was never an agreement to pay the higher rate. That is possible, isn't it?---They gave it. It is with you, in front of your eyes.
PN324
No?---Yes.
PN325
That agreement only says to pay at 38 hours, at the overtime rate?---40 hours.
PN326
Yes, 40 hours?---We getting paid 40 hours.
PN327
Yes, and you accumulated 40 hours. The pay sheet that you hold up, if you have a look at that, at each one of them, at the units for each week, the first one is 24 plus 8 plus 8 is 40?---Yes.
PN328
The next one is 40, as is the next one 38.02 and 1.98, when you had leave without pay. That is also 40. 40 hours is the rate of pay?---Yes, but - - -
PN329
The accumulation for leave is also on the basis of 40 hours?---Yes, but if you read the agreement it said 40 hours is normal pay, as you said, we to get it as the overtime rate on that 40 hours, if I'm not mistaken. Yes, that's my normal pay, normal hour, 40 hours.
PN330
Yes?---As you go with the EBA it is written, it has to be paid on overtime rate, 40 hours it has to go by overtime rate.
**** GARY DJALIKIAN XXN MR HULL
PN331
The agreements - what the agreement says is that - - -
PN332
THE COMMISSIONER: I will mark that document N2.
PN333
PN334
MR HULL: The agreement says:
PN335
Pay rates in relation to all aspects of this agreement will be the rate used for calculation of overtime.
PN336
That is what it says?---Yes, whatever is - is supposed to be paid overtime.
PN337
No, no. No, it doesn't say that?---Where is the 85?
PN338
All right, just - what it says in clause 11 is:
PN339
Pay rates in relation to all aspects of this agreement will be the rate used for calculation of overtime.
PN340
That is what it says, yes?---Yes.
PN341
Now, that is for this agreement?---Every two years we do agreement, it will carry forward, yes.
**** GARY DJALIKIAN XXN MR HULL
PN342
Yes, and that has been the same provision all the way through, hasn't it? That has been there?---I have to check the other one, 1985. You supposed to have 1995, sorry.
PN343
MR ADDISON: That's right. There is no contest on that.
PN344
MR HULL: But it has been there for a long time. There is no argument about that?---Yes.
PN345
But this is your weekly pay rate?---Yes, 40 hours.
PN346
Yes?---Yes.
PN347
And this shows you how your weekly pay is calculated and it shows you how your entitlements for annual leave is calculated?---You are wrong there. The way that we understand, we working 40 hours, that is weekly wages 40 hours coming and when you read this, I can translate that 40 hours, it should be paid the long service leave, the sickies, the RDOs, it should be paid by overtime rate.
PN348
It doesn't say anything about how - - -?---It said in the agreement will be rate used for the calculation of overtime. You have to calculate as the overtime rate.
PN349
Yes, that is right?---Yes. That means you have to calculate that 40 hour - whatever they over - with the overtime rate.
PN350
No, it doesn't mean that. It doesn't say anything at all - - -?---You can take it both way.
**** GARY DJALIKIAN XXN MR HULL
PN351
No?---You can take it two ways.
PN352
MR ADDISON: You can take it both ways, you can take it both ways.
PN353
THE WITNESS: You take it your way, I have to take my way.
PN354
MR HULL: Okay, yes, indeed?---Yes.
PN355
You can take it both ways because this agreement, the certified agreement, doesn't say anything at all about how to accrue - let me finish - It doesn't say anything at all about how to accrue annual leave, sick leave and long service leave for the purposes of paying out on redundancy, does it?---It won't say but you can take it that way too.
PN356
Yes, but it doesn't say anything about that, does it?---The way that it is written, it doesn't say the way that it is written.
PN357
It can be taken either way?---Yes. Yes, we are taking our way.
PN358
Yes, you are taking your way?---Yes.
PN359
Because you say that it was unfair because people were paid the higher rate?---Yes.
PN360
And now they are not being paid?---All right, don't go far away. Why does 17 people think the company paid them, yes, is it fair that we won't get the same?
PN361
Maybe it isn't fair. And that is the real reason that you went on strike, isn't it?---No.
**** GARY DJALIKIAN XXN MR HULL
PN362
Because it is not fair?---No. Not for 17 people because it is going for a long time.
PN363
Because it is not fair for the people who are left behind, people who are still working?---No, no, no. The way that they start paying long time ago, why they going to get it and not us?
PN364
Yes?---Yes.
PN365
That is not fair?---You would do the same thing.
PN366
And that is why - - -?---Put yourself in my shoes and you will do the same thing. We got family to support. Why you going to get the extra money I am not going to get.
PN367
But that is because that is what they paid on the last occasion because - what you noticed - there is a husband and wife?---Yes.
PN368
The husband I think?---Husband.
PN369
Husband got paid more?---Not more. It is not more. We don't call that one more. That is the normal pay.
PN370
There was a difference between the way - - -?---Yes, you can say that but not the wrong way.
PN371
Because they - yes?---Yes, that wasn't wrong, that is right pay.
**** GARY DJALIKIAN XXN MR HULL
PN372
And that is the only case that you are aware of where there is a difference?---For this year, yes.
PN373
For this year?---Yes.
PN374
Otherwise you have never, ever been - - -?---You can't say - - -
PN375
No?---Yes, you can't say wrong. That is not wrong. That is the right amount he got paid with overtime rates, yes.
PN376
All I am asking - I might agree with it, okay? Let us say I agree with that, so let us not have an argument?---What do you agree? No, no, what did you agree? It was the right thing.
PN377
I agreed - I said that for the purposes of right now, it doesn't matter what I agree here, it matters what the Commissioner decides, that is what matters?---Yes.
PN378
Okay, so let us not waste too much time?---We got all day.
PN379
I am simply asking you, I am putting to you that this time around, because you discovered the difference between the husband and the wife and what you said or what you believe that means for other employees in the future, that was the first time this issue has ever arisen?---This year because we checked it, because he came forward.
PN380
Yes?---Yes. And I think, why also I think people when they got paid the same thing.
**** GARY DJALIKIAN XXN MR HULL
PN381
Yes?---If it was wrong, they shouldn't pay them.
PN382
So even if they made a mistake, they should still pay them?---That is not a mistake, that is not a mistake, no. One got paid. If it was a mistake, they can solve it. No one did. Not they paid the 17 people the same rate.
PN383
When you were involved in the negotiations for the enterprise agreement in 2000, this issue didn't come up, did it?---No, because it was written. Whatever you do, you have to get overtime rate. They did not say they were going to cancel it.
PN384
There was nothing said about 48 hours or 38 hours?
PN385
MR ADDISON: Let him answer, let him answer.
PN386
THE WITNESS: No, you said they were trying to get rid of this clause?
PN387
MR HULL: No?---Yes.
PN388
I didn't say that. I said there was nothing said about the 38 hours and the 40 hours. There was nothing said about this issue then, was there?---It is not written there but we discuss. Every EBA we discuss.
PN389
Every EBA you discuss what?---What the two year - how the payment will go.
PN390
But you have never put it in writing?---It is not in writing here.
PN391
Why not? Why not put it in writing?---That you have to ask the organisers because I am only - - -
**** GARY DJALIKIAN XXN MR HULL
PN392
You are not - - -?---No, no, no, I didn't say the organiser's fault. No, no, no. You are taking the wrong way now. You take the wrong way, I will take the wrong way too.
PN393
Maybe?---Yes.
PN394
So, it has been discussed? This issue of - let me be quite clear that entitlements to be paid out when an employee is made redundant are to be accrued at a 40-hour rate, the same basis as accrued on your payslip, that they are to be paid out at a 30-hour rate. That is what you are saying, isn't it?---38-hour rate, no. Only whatever - no, no.
PN395
No, sorry, I might be confusing you and I don't mean to do that?---You are confusing me. That is your job.
PN396
No, no, no?---That is your job.
PN397
No, no, that is not my job?---You see, I got two feelings. Forget those. I got this one. 40 hours normal pay, all entitlements supposed to be paid overtime rate.
PN398
What you say is that if you were to be made redundant - if you were being made redundant, you should be paid out the amount there that shows for your credit. It shows you the annual leave owing?---Yes.
PN399
Right?---The RDOs.
PN400
Those number of hours, that number, multiplied by - - -?---Tell me which number you are talking so I follow you.
**** GARY DJALIKIAN XXN MR HULL
PN401
Down here where it talks about your annual leave?---Yes.
PN402
Now if you were being made redundant, you say that - that is a number of hours, isn't it, number of hours annual leave?---Yes, the last one, 159.
PN403
Yes, 159.90?---Yes and 119.
PN404
Yes, next to it?---Yes.
PN405
That is right. Now, if you were made redundant, you argument is that you should be paid that amount but not at the rate of pay that shows here of 16.91 but at a higher rate?---Yes, whatever it says in here, we want the overtime rate on those ones.
PN406
On those ones?---Yes.
PN407
But - okay. Now - yes, that is the argument, thank you Maurice. This issue was discussed during the negotiations for the certified agreement. You say that? That is your evidence?---The entitlement, you mean?
PN408
No, the issue, this question?---What, the overtime rate question?
PN409
Yes, about applying the overtime rate to these accruals, to apply in the 38-hour rate, not the 40-hour rate?---Yes, it should be over - Don't confuse me, 38/40, I not with the amount. You making me confused. Whatever the amount is, your wages, it is going to be - we discussed - it has to be on the overtime rate. Whatever your wages is - - -
PN410
When did you discuss this?---On the EBA.
**** GARY DJALIKIAN XXN MR HULL
PN411
At the EBA?---Yes.
PN412
And every EBA?---Every EBA, you have to discuss. Some things they try to take out, some things we will refuse it will be staying. It is in.
PN413
So you always discussed it. Do remember what - no, I am asking him, not you. Well, if you want to give evidence, that is fine. But I would ask you to leave and then we will call you.
PN414
MR ADDISON: No point in all three people getting this heated, that is all.
PN415
MR HULL: Well, maybe there is. Who did you discuss it with?---With the management and the organisers with the shop stewards.
PN416
And this makes a fair bit of difference, doesn't it?---What do you mean?
PN417
Well, if they change it - - -?---Just talk proper English, not the high class. We are, like we are low class, yes.
PN418
I'm sorry?---Yes.
PN419
My father got his first pair of shoes when he was 12 years old?---I don't know, I don't know.
PN420
Well, I do know, okay. This is an important issue, yes?---Yes.
PN421
It is worth going out on strike over, yes?---For me, yes.
**** GARY DJALIKIAN XXN MR HULL
PN422
Yes?---Even one cent I go on strike for it.
PN423
Yes, okay?---It is better in my pocket than the company's pocket.
PN424
Yes?---Yes.
PN425
Now, I asked you before, why if it is an important issue, such an important issue, and it is discussed at every time that you negotiate an enterprise agreement, why was it never put in writing?---It is right here. That is enough for us. Because you trust the management and think it is written here as the overtime rate. That is my wages, that is overtime rate. We work as the overtime rate. Like you say, you can take it both way.
PN426
Okay. You evidence is that this has been agreed for all of this time?---Yes, this I remembers, that clause is there.
PN427
If that is right, what would you say if there is evidence led later on by the management that says, during the negotiations, during the meetings that you have had after this issue arose just in April and the strike, that never once have you or any of the other stewards said this was an agreement?---Excuse me, proper English please.
PN428
You have got me, I'm afraid. I have trouble?---I have trouble too.
PN429
It is okay but you are getting the better of me. The management will say that when they had meetings with you and the other stewards - - -?---What sort of meetings? Can you - - -
PN430
Over the strike, over this issue. In April there was an issue. You discovered that the husband and wife got paid a different amount?---Yes.
**** GARY DJALIKIAN XXN MR HULL
PN431
You went to the management and you said this is wrong?---Yes.
PN432
The management said, we made a mistake before and what we are doing now is correct?---Yes.
PN433
And we are sorry but that is the way it is because we made a mistake before?---But the sorry didn't come through.
PN434
Well, maybe they didn't say sorry, they said we made a mistake, that is the way it now is?---Yes.
PN435
So you are just going to have to accept this. This is what the management said?---That is what they said, yes.
PN436
Okay, and you had a lot of meetings with them about this?---A few.
PN437
How many? How many meetings did you have?---I don't recall that. If you want I can ask my colleague.
PN438
Well, did you have more than two or three meetings?---I can't say that.
PN439
You can't remember how many meetings you had with management?---No.
PN440
Was it more than 10?---Because the last thing - because this one got to do what they would happen to me at my colleague. After than I lost the plot. I am not interested what the management - what they do, whatever. Something happened between me and my colleague. The company did what they - - -
**** GARY DJALIKIAN XXN MR HULL
PN441
What is that?---They tried to sack us, which something that - there is nothing, we didn't do nothing. The way that I heard it was a set-up. After that I lost the plot.
PN442
This is before this issue?---Yes, two weeks, three weeks before this thing happened.
PN443
Right. This is about when you were accused of taking some wood?---Yes.
PN444
And there was a strike then too?---Yes.
PN445
Yes. And when you say you lost the plot, what do you mean? You mean - - -?---Because I have been working with this company with all my heart for 11 years or 10 years and a half which is that happened. I had nothing - even the manager can tell you, I didn't took nothing home whatever. Even we got the gate pass, we were - the way that it happened, we know that it was a set-up thing. I can't confirm but it was a set-up and even three weeks ago, the manager knows, I found a solder stick in my lunch bag. I showed the managers. The day after I found rubbers - I don't know what you call - because they first day they put solder in my bag, was open, the lunch bag. They put it in.
PN446
I'm sorry, you think the management is trying to get rid of you, do you?---I didn't say management. I said it was a set-up.
PN447
Okay, or that someone is trying to - or that you have been set up?---Did I mention management?
PN448
No, I am asking?---Yes. Don't take it the wrong way. I said it is a set-up. Second day because my bag was tied, they put in my pocket.
**** GARY DJALIKIAN XXN MR HULL
PN449
Okay, okay?---Because I had three warnings. They know they going to sack me then.
PN450
Okay, all right. I am sorry, I didn't mean it. Sorry, I didn't mean to put words in your mouth?---Yes.
PN451
What I am concerned about though, is when you say you lost the plot. So that you can't remember how many meetings you have had with management about this issue?---No, no.
PN452
What can you remember about the meetings you have had with management about this issue? Anything?---I remember the strike.
PN453
You remember the strike?---Yes, yes.
PN454
All right. So you can't tell us what you did say and what you didn't say?---I remember the first meeting we call that they said they did the wrong - that they paid them wrongly, yes, and we said, no, that is the right amount for payment.
PN455
And when I say to you that at no stage did you or anyone else say that there was an agreement, you say you can't remember?---The agreement about the overtime rate?
PN456
Mm?---It has always been. The way that we - it has always been - - -
PN457
No, I am not asking you what you think has always been, I am asking you why didn't you tell - why didn't you say that to the management?---They should know, they said that is the EBA, our EBA.
**** GARY DJALIKIAN XXN MR HULL
PN458
They should know?---Yes. They should know that that is what is overtime rate. Not us, they have to come tell us, yes, it is on the paper or not.
PN459
And if they make a mistake, are they allowed to fix the mistake?---That wasn't. If they did a mistake, yes, but this wasn't a mistake.
PN460
How do you know it wasn't a mistake?---Because they are paying 17 people. If it was a mistake, they don't pay those 17 people.
PN461
They paid those 17 people but they didn't pay this man that I showed you the payslip for, did they?---Like I said, even if he doesn't show me his pay slip because it is confidential, we shouldn't show the payslip to anyone.
PN462
So you - - -?---Let me finish. The company's rule, not to show your payslip, it is confidential, to someone else. If they don't show me, I don't know what is happening. If they show me, I have to do my job or my colleague has to do their job.
PN463
So the truth is that no one before this time has ever shown you - has ever complained about this issue?---No.
PN464
Right. So you don't know whether it was a mistake or not, do you?---It is not a mistake. That is what I put, in our opinion it is not a mistake.
PN465
I have nothing further, thank you, sir.
PN466
**** GARY DJALIKIAN RXN MR ADDISON
PN467
MR ADDISON: Gary, I want to take you back to 2000?---Mm.
PN468
There were a number of issues in 2000 and the certified agreement. There were Commission proceedings with regard to that. You were in the Commission a few times?---Yes.
PN469
In terms of the Commission, there was conciliation. In other words, meetings with the company in the Commission and also on site. Yes?---Yes.
PN470
During the course of those meetings in the Commission, was there only the Natra management present?---It was Austrim.
PN471
So there was Austrim management present too?---Yes.
PN472
So do you recall a person associated with the discussions being in the coffee shop at all?---Coffee shop?
PN473
Yes, downstairs?---Denver Alvis.
PN474
No, you have already said that you recalled Mr Alvis?---Yes.
PN475
I think your evidence was Alvis, John Grundy or Kevin somebody?---I think Lou Satori because he is not coming, I think it is Lou Satori.
PN476
MR HULL: The note we have is Parow, Grundy and Alvis.
PN477
MR ADDISON: Yes, that is right. I think the three men that you recall?---Yes.
**** GARY DJALIKIAN RXN MR ADDISON
PN478
What I am asking you is, apart from those three, do you recall anybody else from the management being present and do you recall that person or another person who was associated with the discussions who may have spent most of his time in the coffee shop?---I don't recall.
PN479
You don't remember?---No.
PN480
I have no further questions of this witness, Commissioner, unless you have any.
PN481
PN482
MR HULL: You say that Mr Grundy was at that meeting during those negotiations? Yes, that is your evidence?---That is what I think. Or John Grundy or Lou Satori, it is one of them, like I said.
PN483
Well, what would you say if I said to you that Mr Grundy was not employed until afterwards?---Or Lou Satori, yes.
PN484
All right, thank you?---That is what I said, Lou Satori or John Grundy.
PN485
MR ADDISON: I think the evidence was, it was either Grundy or Trevor Smith.
PN486
MR HULL: No, that was Ninda's evidence.
**** GARY DJALIKIAN FXXN MR HULL
PN487
MR ADDISON: That was this witness's evidence too. I think the transcript will confirm that, Commissioner.
PN488
THE COMMISSIONER: My recollection is, I think he did subsequently add the name Smith.
PN489
MR ADDISON: Yes.
PN490
THE COMMISSIONER: That is a possibility.
PN491
MR ADDISON: Right. Commissioner, that concludes the evidence from our point of view. We are happy to hear evidence from my friend. But whether he is the applicant or the respondent, I am not sure.
PN492
THE COMMISSIONER: You are going to call a witness, are you?
PN493
MR HULL: Well, I have three witnesses, sir. The point that I raised earlier though, I foreshadowed that given the evidence, we would want to call Mr Beaty.
PN494
PN495
MR HULL: Given it was said that he - certainly by Ms Pope that he expressly raised this issue. Now, there is a question then of how you manage to make a decision and you know, unless of course you are so overwhelmed our side of the argument that you say that it is not necessary which I - I'll say, I am happy to allow that. I mean, I can't properly conclude or do my job for my clients without calling Mr Beattie and we had not understood that this was going to be a point that would be raised. And it is just no fault from this but it is said that he specifically said something and we need to be able to refute that evidence.
PN496
THE COMMISSIONER: Well, and all of this impacts upon how quickly I can give a decision in respect of this matter and I did indicate to the parties in conference that I would hope, bearing in mind redundancies for tomorrow, that I could give a prompt decision. This may derail that.
PN497
MR HULL: I am quite happy to present the evidence of the three witness that are here and indeed with respect to Mr Alvis, I would very much like to do that because he is no longer with the company, so he has come in especially to give evidence. So I would like to do that. So perhaps if we - the sensible thing is if I proceed to call those witnesses and at the end of that, you might have a - - -
PN498
THE COMMISSIONER: How long do you think you will be with Mr Alvis?
PN499
MR HULL: I would be fairly short with Mr Alvis. I have statements for two of the witnesses that I can - - -
PN500
THE COMMISSIONER: Will you be short with Mr Alvis?
PN501
MR ADDISON: I haven't read his statement yet, Commissioner.
PN502
THE COMMISSIONER: I am just wondering we might break now and re-adjourn at 2 but does that give you a problem logistically for Mr Alvis?
PN503
MR HULL: It might be, if we can bring him in now. It is a very short statement for Mr Alvis perhaps I can hand that up to you, sir.
PN504
THE COMMISSIONER: I have indicated earlier that I wanted to break before 1, so I would ask you both to be mindful of your time.
PN505
MR ADDISON: I have got no difficulties with you time. Mr Alvis I guess might have a problem.
PN506
MR HULL: Sorry, having said off hand I had a copy, I now have to find it. Yes, apparently it will be a cause of difficulty so if we can call him now.
PN507
THE COMMISSIONER: Yes, it is only a four paragraph statement. Yes, let us deal with him.
PN508
PN509
MR HULL: Hand this document to the witness, please.
PN510
MR ADDISON: It is his statement, is it?
PN511
MR HULL: Yes, it is his statement. The statement is - because of the time involved and this is the document that my friend and you have, sir - it has been drafted but it hasn't been confirmed by Mr Alvis, so I will ask you, Mr Alvis, have you had the opportunity to read through this document?---Yes I have.
PN512
Yes, and are there any changes you would like to make to that document?---No, there is not.
PN513
And what do you say about the truth or otherwise of the contents of that document?---The statement is totally accurate.
PN514
PN515
MR HULL: Just a couple of questions. I think you have already covered it here, but it has been expressly said in evidence in these proceedings that on every occasion the certified agreement was negotiated, this question of the application of the 38-hour rate of pay to the 40-hour divisor, was raised. What do you say to that?---That is not the case.
PN516
Is this the first time you have become aware that this has become an issue at Natra?---The first I ever heard of anything which related to that was about three days ago.
**** DENVER WILLUM SHERLOCK ALVIS XN MR HULL
PN517
Three days ago?---Yes, that is correct. On the weekend about three or four days ago.
PN518
PN519
MR ADDISON: Mr Alvis, you were the operations manager from '96 to 2001?---Yes, correct.
PN520
The company was owned by Austrim at that point in time?---It was - when I first came there it was owned by National Consolidated Limited which was then subsequently acquired by Austrim in 1997.
PN521
1997. So from '97 to 2001 it was an Austrim company?---Correct.
PN522
Thank you. Now, you said you have responsibility for dealing with all the industrial relations matters at the Noble Park site?---I was fully responsible from June 2000 - I think June 2000 - we did have a HR manager but he was made redundant - - -
PN523
That is Mr Grundy, is it?---No, that was Lou Satori.
PN524
Satori, okay. I have heard that name this morning. So is now a manager and he was made redundant, when?---I believe about June 2000.
PN525
Okay, so June 2000 he was made redundant but you also had industrial relations consultants?---Correct. That is correct.
**** DENVER WILLUM SHERLOCK ALVIS XXN MR ADDISON
PN526
You had a Mr Grundy and a Mr Smith?---Yes, after Lou was made redundant we had - I think was it Smith, or Spence - Trevor Spence - it could be Trevor - sorry, yes, Trevor Smith.
PN527
I'm easy either way?---And then, yes, after Trevor there was John Grundy who - - -
PN528
When did John Grundy start?---I believe that was early 2001 January/February
PN529
Okay, so that was at the end of 2000?---Yes, that would be correct.
PN530
Certainly, after September 2000?---Correct.
PN531
Yes. Now, you recall that during Campaign 2000 there was a claim which was lodged with the company for increases in wages and conditions?---Correct.
PN532
Yes. A claim for wages of 5, 5 and 5 was put to the company?---That was one of the claims put at some stage, correct.
PN533
Industrial action ensued from time to time?---There was, yes, some industrial action.
PN534
Indeed, an application was filed by AIG on behalf of a number of companies, including Natra?---Yes, I believe that is the case, yes.
PN535
That application was an application pursuant to section 170MW of the Workplace Relations Act, correct?---It's difficult for me to recall the exact details going back - - -
**** DENVER WILLUM SHERLOCK ALVIS XXN MR ADDISON
PN536
THE COMMISSIONER: Well, you are under oath so you don't have to guess. If you don't know, say so?---I can't recall the exact clause to be quite frank with you going back 3 years.
PN537
MR ADDISON: Well, I'm going off point 2 of your statement which says that your role meant that you had responsibility for dealing with all industrial relations matters. Now, one would have presumed that an application pursuant to section 170MW at that point in time was part of your responsibility. Was it, or was it not?---Yes. Yes, I would definitely have been involved with that.
PN538
You would be involved with it?---Yes.
PN539
Were you responsible for it?---As part of the management team I would definitely be - certainly, heavily involved in that.
PN540
You see, I put it to you that Mr Parry, who was then a barrister and is now a Queen's Counsel, I think, or Senior Counsel, or whatever you call it, Mr Parry pursued that MW on behalf of a whole range of companies including Natra. Do you know that?---I can't distinctly recall who led that campaign from AIGs point of view.
PN541
Okay. Now, I put it to you further that during the course of that MW application and other subsequent proceedings there were a number of conciliations between the union and the company, that is correct isn't it?---Can you just define "conciliation" so I'm clear on - - -
PN542
Well, let me step through, it might make it a bit easier for you. The application was heard before Munro J?---This is the AIG one we are referring to not specifically the Natra EBA.
PN543
The AIG one. Yes, it was an MW application which was filed some time in early September, I haven't been able to find out when - - -?---Okay, but that was the collective one we're referring to.
**** DENVER WILLUM SHERLOCK ALVIS XXN MR ADDISON
PN544
But it was heard on the 12th?---Okay.
PN545
It was heard on 12 September and the union was represented by Ms Bingham and the companies were represented by Mr Parry, yes?---I can't recall his name to be quite frank with you.
PN546
Then there were subsequent proceedings spinning out of that to try and resolve all of the issues and there were meetings arranged by Munro J between Natra as an organisation and the AMWU to try and resolve the issues, do you recall those meetings?---There certainly was meetings between Natra and the AMWU - the delegates and the AMWU.
PN547
A number of those meetings were held in this building and, indeed, you were present at some of those meetings. I can even be more specific, they were heard at 4.39 in Conference Room 5, next door to Court 1, or it could have been the old media room?---Which day was this?
PN548
I can't give you an exact specific day but it would have been some time in September of 2000?---Who was in attendance?
PN549
In attendance, according to the evidence of Ms Pope was yourself, either John Grundy or Trevor Smith - bear with me, I'm looking for it. I've got a document here somewhere with it written on. There was three people from management, Trevor Smith or John Grundy was one, yourself was another. There was a Mr Beaty from Austrim Nylex and there was one other who escapes me. Do you recall those meetings?---From the people you are describing there was certainly never a meeting with myself and Greg Beaty involved here.
PN550
I put it to you that Mr Beaty spent a significant amount of time during those negotiations in the coffee shop downstairs and issued his directions one presumes, from the coffee shop downstairs. Do you recall that?---Certainly, if it occurred, it had nothing to do with myself, I wasn't aware of it.
**** DENVER WILLUM SHERLOCK ALVIS XXN MR ADDISON
PN551
You are not aware of it?---No.
PN552
So you can't deny it?---No, I will categorically deny that Greg Beaty was involved at the meeting with me in the coffee shop, it didn't occur.
PN553
Thank you. Ms Pope is absolutely adamant with regard to this proposition. She says there were three conciliations or thereabouts which involved yourself, the external IR person - I can't remember the third person - and Mr Beaty, but Mr Beaty was a bit of a strange fish, I think she said, and Mr Beaty liked to spend a bit of time in the coffee shop and preferred to stay out of the direct negotiations but was in the coffee shop during the course of these discussions. Now, are you saying Ms Pope is a liar?---I'm telling you categorically that there was no meeting with myself and Greg Beaty of which you are describing, categorically, maybe she was mistaken at some other meeting with some other company with Greg Beaty, I'm not too sure, but it certainly didn't occur with myself.
PN554
You know Greg Beaty, don't you?---Yes, I do.
PN555
What is his role?---Currently or - - -
PN556
Well, what was his role in 2000?---Greg was a senior manager within Austrim Nylex. He was either at that stage the chief executive of Austrim Nylex, the managing director, or he would have been the chief executive of Austrim Nylex's largest division, being the automotive division. It would have been one of those two positions, I can't recall exactly the date he went from being head of the automotive division to the head of the company.
PN557
So he is your boss, in effect?---I've never reported directly to Greg Beaty, no.
PN558
All right, I accept that. In an organisational sense he was your superior?---If he was head of the automotive division he was never my box, that is a different division to ours, we are part of engineered products division.
**** DENVER WILLUM SHERLOCK ALVIS XXN MR ADDISON
PN559
Yes?---If he subsequently went on to become chief executive for a short period of Austrim Nylex and then at that stage, yes, he would have ultimately been my boss at several levels above me.
PN560
Indeed, your industrial relations responsibilities he could determine, couldn't he? If you decided to give a 5 per cent wage increase for instance as a responsible industrial relations officer, as an officer of Austrim Nylex at that point in time he could have said to you: don't do it, I think that's wrong. Don't do it, only offer 3?---If he was the chief executive of Austrim?
PN561
Yes?---That could have been the case but he was head of the automotive division, it really didn't have much to do with us in engineered products division.
PN562
Now, do you recall the negotiations with regard to the redundancy agreement in Campaign 2000?---Yes, yes, I do.
PN563
You recall there was a claim for a higher quantum in terms of weeks per year of service?---Correct.
PN564
And a higher quantum in terms of a cap?---Correct.
PN565
You also recall that there was a climb for a proper process in terms of selection?---Yes, I do.
PN566
Yes. Now, do you also recall that there was provisions with regard to protective clothing? Within the redundancy agreement?---I just can't recall the detail. What specific provisions were they?
PN567
Well, they were provisions with regard to protective clothing, weren't there?---Look, I just can't recall. I've been involved in a number of EBAs and I just can't recall the specifics of all things which came - resulted out of that EBA.
**** DENVER WILLUM SHERLOCK ALVIS XXN MR ADDISON
PN568
Of course, nobody expects you to remember all of the specifics of every negotiation. Just bear with me a second.
PN569
THE COMMISSIONER: Witness, do you remember precisely then, do you, your statement in paragraph 3?---Yes, in relation to redundancy, yes, I believe that is totally accurate.
PN570
You remember that clearly?---Yes, about redundancy, yes, that was like a major issue, the redundancy component of that particular agreement. There is usually a few minor-type issues, such as clothing or hygiene-type issues which I can't recall the specific details, but the thrust of the negotiations related to the redundancy.
PN571
MR ADDISON: Can you remember what that process was? Do you remember what the voluntary process was?---Yes, it had to do with provisions relating to consultation, essentially, the consultative-type process.
PN572
Is that right. Do you remember what the previous process was, the process of the 1998 agreement?---In regard to the redundancy process, specifically.
PN573
Yes, the selection process, the selection - the voluntary process?---No, I can't recall the details.
PN574
You can't recall it so you can't recall what the new selection - the voluntary selection procedure replaced?---Well, certainly, the thrust of the union was to really go to more a voluntary-type process.
PN575
Yes?---As opposed to taking that decision away from management so that was really the thrust of it. All the specific details of the '98 I can't recall, but it certainly wasn't a voluntary-type process in '98.
**** DENVER WILLUM SHERLOCK ALVIS XXN MR ADDISON
PN576
Right?---Essentially, '98 related to management reserved the right to make decisions based on business needs.
PN577
That was the '98 agreement, yes, of business needs, you are sure that was the case?---Similar - similar to that, yes.
PN578
Well, if I put to you that should volunteers come forward they should be considered on merit, that was the clause in 1998, wasn't it?---I would have to look back at the specific wording.
PN579
The 2000 agreement you said was a consultative process?---Certainly, that is what the union was pushing for one of the changes.
PN580
Yes, was that agreed to?---There were some changes to the wording to accommodate what the union was pushing for.
PN581
So a consultative process was agreed, was it?---Yes, some form of consultative process, or a more consultative-type process.
PN582
Are you sure it wasn't just a preference?---Look, I can't recall all the specific wording.
PN583
You can't recall the specifics, that is fair enough?---I recall the thrust of, you know, the argument but all the specific wording, no, I can't recall that precisely.
PN584
Can you recall what the company's position was with regard to older employees, let's say, a person who had been employed for 35 years and was, let us say, 64. What was the provision with regard to that person? What was that person's entitlement?---This is pre the 2000 EBA or - - -
**** DENVER WILLUM SHERLOCK ALVIS XXN MR ADDISON
PN585
The 2000 EBA?---This is what was agreed upon?
PN586
Yes, what was agreed upon. Do you remember what the position was with regard to older employees?---Apart from them having - look, no, I can't recall the detail.
PN587
No, you can't recall. Didn't think you could. Can you recall - - -?---Over 45 years, give an extra week's notice, but I can't recall - - -
PN588
Yes. Can you recall what the position was with regard to the pay rates that were applicable to the redundancy provision?---The period?
PN589
Pay rates, sorry, my accent is shocking, the pay rates, the amount of money that people got, what was it calculated on - - -
PN590
THE COMMISSIONER: Having a lot of trouble with proper English today.
PN591
MR ADDISON: Commissioner, I've had a lot of problem with proper English all of my life.
PN592
MR HULL: It is not Mr Addison who has the problem, it is the people who have to listen to him.
PN593
MR ADDISON: Indeed.
PN594
Can you remember which period applied to the payment of benefits under the redundancy agreement?---There was no changes to that, so whatever was in previous EBAs sort of had been maintained, there was no actual change in the 2000 - - -
**** DENVER WILLUM SHERLOCK ALVIS XXN MR ADDISON
PN595
Yes, there was no change to that?---Correct.
PN596
It was just maintained?---Correct.
PN597
Indeed, everything that was associated with the previous agreement, unless it was specifically subject to change just continued, didn't it?---Correct. Unless its documented in the EBA, yes.
PN598
In terms of the discussions that you were involved in, in the Commission, do you recall having meetings with the union and the delegates in the Commission?---There was some brief exchanges between the management team and the union team.
PN599
Do you recall meetings in conference rooms with the union?---There was a meeting held in this building - not really a meeting again, it was really a case of - yes, there was certainly some exchanges between the union and the management team, just a bit of posturing, going back and forth. There was a meeting - or certainly some meetings back at the Natra site.
PN600
Yes, well, I'm not interested in the meetings at Natra site at this point in time, but do you recall a meeting in the Commission with Ms Pope, Mr Nelson and Mr Dagarble, together with your delegates and the management?---We were in front of the Commission at that stage but in terms of discussions, interaction between the union team and the management team, I recall distinctly where we were asked to wait outside in a particular room and from time to time union - a union representative came in to put - to exchange some views, or negotiate a new position, that was about really the extent of it here on these premises at Nauru House.
PN601
So you don't remember any meeting, specifically with Mr Dagarble, Mr Nelson, Ms Pope, the delegates, yourself, Mr Smith or Mr Grundy, Mr Beaty. You don't recall any such meeting?---Was this in the Commission, like just a room like this, or was in a Conference Room?
**** DENVER WILLUM SHERLOCK ALVIS XXN MR ADDISON
PN602
No, it was in a Conference Room. According to the evidence of Ms Pope and Gary such an event occurred and, ultimately, that is a question for the Commission. I'm just asking you if you remember it?---There was a room of which the management team were in there and from time to time there was to-ing and fro-ing of a union spokesperson.
PN603
Yes, well, that wouldn't be a meeting, would it?---I wouldn't have thought so, no.
PN604
No, that wouldn't be a meeting that would just be people carrying messages, one presumes. So do I take it from that that you do not remember such a meeting?---I don't believe there was that meeting - - -
PN605
I'm not asking whether you believe there was or there wasn't. I'm asking you: do you remember attending such a meeting? The answer is either "yes" or "no"?---No.
PN606
No. Now, in terms of the meetings at Natra, did you attend all of them?---Yes.
PN607
All of them?---Yes.
PN608
Okay, and you were there for the full period of every meeting?---Yes, I might have left for a moment to go to the toilet but I - - -
PN609
Okay, and you absolutely remember that?---Yes.
PN610
You can't remember a meeting in the Commission, but you can remember every meeting at Natra?---Correct. Well, I can assure you every meeting at Natra I, yes, would have represented the management team.
**** DENVER WILLUM SHERLOCK ALVIS XXN MR ADDISON
PN611
Would have, or did?---Did.
PN612
You are absolutely 100 per cent positive on that?---Correct.
PN613
Now, I just want to take you to Point 4 of your statement. You have a read of Point 4. Are you comfortable with Point 4?---Yes.
PN614
It is true and correct?---Correct.
PN615
Okay. I asked you a question some time ago, it was with regard to the payment regime on the 2000 certified agreement. I asked you what was the pay rate with regard to that. You said: there was no discussion on that because it was in the previous agreement and it just flowed on. Do you remember that answer?---Yes, there was no change.
PN616
There was no change, right. In fact, there was no discussion - well, according to your evidence, that is correct isn't it?---Correct.
PN617
So why do you make the statement that there was no agreement reached regarding the calculating of the redundancy entitlements for the accrual. It would never have come up according to your evidence for answers ago. There is some conflict here, wouldn't you agree?---No. In which way?
PN618
What are you trying to say at Point 4? Are you trying to say there was no discussion to the best of your knowledge, or you were trying to say: there was a discussion but no agreement was reached - - -?---No, it's totally clarified, the last sentence:
PN619
This issue was never raised during the period of my employment with Natra.
**** DENVER WILLUM SHERLOCK ALVIS XXN MR ADDISON
PN620
To your knowledge?---No, it was never raised.
PN621
MR HULL: Clearly, it must be to his knowledge and, I mean, Mr Addison degree of attitude is getting a little bit on the small fury badgery-type creature.
PN622
MR ADDISON: Now, evidence this morning from the delegate suggests - in fact more than that - there is clear evidence that at all times in the past 7 years the entitlements of employees has been accrued at the 40-hour rate. Do you agree with that? In other words, the entitlements are accrued on the basis of a 40-hour week so that, effectively - you know the award entitlements 152 hours annual leave for instance, you know that, don't you?---You are sort of going into technicalities now which - - -
PN623
No, it is a straightforward question. I'm not trying to trick you. The award is a 38-hour award, you agree with that?---Yes.
PN624
Yes. And 4 by 38 is 152?---Mm.
PN625
So the award entitlement - - -?---Its 5 by 38, yes.
PN626
- - - the award entitlement for employees in normal circumstances is 152 hours per year, you agree? It is not a trick question, honest, I promise?---I presume, yes, that is correct, okay. I just don't get into that level of detail.
PN627
No, that is fair enough, it's just straight maths. It's 38 times 4 is 152, so under normal circumstances the award entitlement for an employee for annual leave is 152. If one was to accrue on a 40-hour week, and 4 times 40 is 160, right? You would agree with that? Even I would agree with that with my terrible mental mathematics, I would agree with that. You can take it from me it is. Now, the position from Gary is that for at least the last 7 or so years that he is aware of, entitlements accrue at the 40-hour basis, so people accrue
**** DENVER WILLUM SHERLOCK ALVIS XXN MR ADDISON
entitlements - in terms of annual leave for example - I only use that because its the easiest example - they accrue 160 hours per year in terms of entitlement, you agree that is correct, don't you?---I'm really not certain. I'm just not into that technicality to be honest with you, I just - I've got payroll people that do all that technical - - -
PN628
Can the witness be shown A1 please?---I know it is probably a common issue for everyone here but I'm just not totally familiar - - -
PN629
No, I just wanted to be sure. I'm not trying to trick you, honestly.
PN630
THE COMMISSIONER: N1, you said?
PN631
MR ADDISON: A1, sorry.
PN632
THE COMMISSIONER: I'm sorry. AMWU1?
PN633
MR ADDISON: Yes. Sorry, yes, I just wrote it in.
PN634
Can you just have a look at that document. There is three payslips there - I know it looks a bit confusing but there is three payslips there?---Right.
PN635
They are dated 6.5, 13.5 and 20.5, and they all belong to Gary. I want to take you to the very far right-hand side. You will see a box in each one with regard to "Leave Hours", and then there is an "Annual Leave Accrual" underneath, do you see that? Right-hand box?---"Leave Hours, Annual Leave, Entitlement Pro Rata", is that the box?
PN636
Yes, that is right?---Yes.
**** DENVER WILLUM SHERLOCK ALVIS XXN MR ADDISON
PN637
Now, the evidence from Gary - and I don't know there is any contest on this - is that "entitlement" means what you have got in the bank. What you can take. "Pro rata" means your accrual week by week?---That is my understanding.
PN638
That is your understanding?---Yes.
PN639
You agree with that?---Mm.
PN640
If I could take you down that right-hand column - and these are in order in terms of weeks. If you start at the top you will see the first "Pro rata" amount there is "153.78".
PN641
THE COMMISSIONER: Yes, Mr Hull?
PN642
MR HULL: Can I just ask what the relevance of this line of questioning is? I mean, if we are talking about Mr Addison seeking from the witness an interpretation of the document I would have thought that is something the Commission can do simply by looking at the document. There is no evidence at all that the witness - in fact, his evidence is he had nothing to do with payroll. I just don't know where it gets us and it seems to me to be going down a path that will prove nothing, apart from an agreement that, you know, divide this by that and you get this answer. Well - - -
PN643
THE COMMISSIONER: He does say you are taking him into what is unfamiliar territory to him.
PN644
MR ADDISON: I'm not trying to take him into something technical, but I need to get to a point. Maybe I can rephrase the thing.
PN645
You would agree, would you not, that if the accrual was on a basis which employees understood to be correct the issue never would be raised with you? You see, you say at Point 4:
**** DENVER WILLUM SHERLOCK ALVIS XXN MR ADDISON
PN646
This issue was never raised during my employment with Natra.
PN647
?---Mm.
PN648
You would accept, would you not, that if an employee who looks at his or her accruals and says: well, that is right, they would never raise that issue with you, would they?---Not necessarily.
PN649
That is right?---Often, if it is found or identified and it's in someone's favour - I've seen through my experience, human nature is such that, yes, it could be incorrect, but if it is in your favour they are not going to tell you about it, so that - I've seen that regularly - so it could be what you're saying or the option I'm suggesting.
PN650
Well, I'm not suggesting that is in their favour, I'm just suggesting if I'm supposed to get paid $700 a week and I get $700 every week, I'm not going to raise an issue with you, but if I get 650 the next week, I am. You would agree that that is logical, wouldn't you?---If it's wrong and not in your favour the chances are it will definitely be raised.
PN651
That is right. So on the presumption - and I ask you to presume that this is all correct - on the presumption it's correct, it's not surprising that it was raised as a problem with you, is it?---No, I still go with what I just said before. If it's - - -
PN652
No, no, that is fine?---It could be correct, or it could be incorrect in their favour, the chances are it still wouldn't be raised if it was one of those two options.
PN653
Yes, I have nothing further for this witness, Commissioner.
**** DENVER WILLUM SHERLOCK ALVIS XXN MR ADDISON
PN654
THE COMMISSIONER: Mr Hull, did you have anything?
PN655
PN656
MR HULL: Mr Alvis, do you know Darren Nelson? Do you know of him?---Is that the Mr Nelson of the union?
PN657
From the AMWU, or previously - - -?---Yes, yes.
PN658
Fairly hard - - -?---I don't know him well but I've certainly met him on a couple of occasions.
PN659
Linda Pope?---Yes, I do.
PN660
Steve Dagarble?---Yes, I do.
PN661
Would you know them if you saw them in the street, would you recognise them?---Certainly Mr Nelson and Ms Pope. Mr Dagarble, I'd probably recollect his face but may not be able to put a name to it immediately but - - -
PN662
Right. Now, your evidence is that you had no recollection of a meeting with these people during the 2000 enterprise agreement negotiations. I will ask you, was there such a meeting?---On the premises here?
PN663
Yes?---No.
**** DENVER WILLUM SHERLOCK ALVIS RXN MR HULL
PN664
Any doubt at all about that?---No.
PN665
That is all, thank you, sir.
PN666
THE COMMISSIONER: Thank you for your evidence you are excused. I'm going to adjourn. Is it convenient if we adjourn until 2.30?
PN667
MR HULL: Yes, sir, I will endeavour to see if there may be a chance of Mr Beaty providing some - - -
PN668
THE COMMISSIONER: Yes.
PN669
MR HULL: I mean, if I can do that?
PN670
THE COMMISSIONER: Yes, and you can discuss with Mr Addison during the break too any other efficiencies that you can bring forward.
PN671
MR HULL: Yes. Indeed. Would it assist the Commission, I can provide a copy of a witness statement from a Mr Daly, but you may not wish to - you may prefer to have your lunch.
PN672
THE COMMISSIONER: No, you can provide it to my associate.
PN673
MR HULL: Thank you.
PN674
PN675
THE COMMISSIONER: Yes, Mr Hull?
PN676
PN677
MR HULL: Having come with several copies of Mr Daly's statement, I think I am short of one, but perhaps if I hand to the witness. That is a statement that you have prepared Mr Daly?---That's correct.
PN678
Are there any changes that you would like to make to that statement?---No.
PN679
PN680
MR HULL: Thank you. A co-operative approach, your Honour. The easiest way to start you off Mr Daley is if you could explain to the Commission just what is the position with the use of a 40-hour rate of pay at NATRA when there is a 38-hour week environment?---Okay, because employees at NATRA which to take a 8 hour roster day every 4 weeks, it is convenient for - as to make a consistent pay for over a 4 week cycle rather than having a 3 high weeks and a low week to use - to have the total weekly wage and divide it by 40 and come up with a 40-hour week that can be applied across of the 4 week cycle. So they are at work for 8 hours a day for each of the first 5 days of the week. Nominally that is 7.6 hours of ordinary time and .4 hours that go towards a bank and build up and so that at the end of the 4 week cycle, they have worked for 152 hours and then they can be paid 8 hours for the day that they don't work that they have a rostered day off. We recognise that the award and the EBA is a 38-hour award and that accordingly, any hours above the nominal 7.56 plus .4 banking is paid at an overtime rate, the 38-hour week rate. So we know that an average, over the 4-week cycle is 38 hours and any hours above the 38-hour average of the 4 weeks is paid at overtime, but we try to pay a 40-hour basis. I understand that it is complicated, but it is a 40-hour basis to enable people to be paid a consistent wage over the whole 4-week cycle.
**** ROBERT CHARLES DALEY XN MR HULL
PN681
It is a little bit out of the ordinary but if the Commission would like to ask any questions at this stage on that, because it is a complex - it has been a matter of some confusion, sir.
PN682
If I can ask that the witness be handed exhibit N2 please?
PN683
THE COMMISSIONER: I should say to you, Mr Hull, in marking that exhibit that you just produced, I have included the attachments. There were attachments to the - - -
PN684
MR HULL: You have included them? That is probably where my spare went.
PN685
THE COMMISSIONER: That's all right.
PN686
MR HULL: That is all right. As long as we have got one, I don't mind. I am fairly sure I - with the help of my friend we will get by. Can I just advise the Commission that the documents that you have that are marked N2, what are they?
PN687
THE COMMISSIONER: Payments calculations and copies of the Employment Separate Certificate and Certificate of Service and a summary of the cheque payment for an employee who was retrenched on 5 May 1999.
PN688
MR HULL: That is a Mr Basterfield?
PN689
THE COMMISSIONER: Mr Basterfield, yes.
PN690
MR HULL: Yes. Now can I take you to page of that document?---Yes.
**** ROBERT CHARLES DALEY XN MR HULL
PN691
At the - well, first of all can you confirm that the figure next to weekly rate at the top there, that is his weekly rate of pay?---Yes, that's correct.
PN692
The third row down where it says: undertaken sick. Can you explain the figures that are in the column headed: Number of Weeks and the column called: Amount?---Okay. Payment calculations in those days were undertaken based on the number of weeks, so when this person was retrenched they had 5.6 weeks of accrued untaken sick leave and the calculation for the payment of those 5.6 weeks is 5.6 weeks times the weekly rate. So 5.6 times $522.10 equates to the $2923.80.
PN693
What do you say about the figures in the next row down immediately those two. So I am referring to the annual leave row?---On a similar basis, that there was .39775 weeks of untaken annual leave and then a similar calculation the weeks times the weekly rate to give the $207.67.
PN694
If I bring you down to the column - sorry, the row headed: Long Service Leave in those two columns, what is the position there?---The position there is that, yes, and there is a calculation on the back of that page that this employee and it is towards the bottom in the middle there. We calculate the annual leave that that person was entitled to from their date of commencement of 11 January 1961 to 5 May 1999.
PN695
Sorry, you said annual leave?---Sorry, long service leave.
PN696
Thank you?---That person was entitled to 32.8259 weeks of long service but during the course of their employment they had taken 22 weeks of long service leave which means as at the date of - they left employment, there was an entitlement of 10.8259 weeks.
PN697
Sorry, if I can just stop you there. Does the Commission have that page?
**** ROBERT CHARLES DALEY XN MR HULL
PN698
THE COMMISSIONER: Yes, thank you.
PN699
MR HULL: All right. Yes, go on - so that 10.8259 weeks which is a basis of a fairly detailed calculation has now been transcribed over to the front page to say that that person was then entitled to 10.8259 weeks times the $522.10 giving $5,656.20? Now, what would be the result of the figures here for the amounts of pay if those entitlements were accrued on a 40-hour basis and paid out on a 38-hour basis?---the entitlement would be 5 per cent higher, because the weekly - in all of the calculations we are using the weekly wage and that is irrelevant as to whether or not it is a 40-hour week or a 38-hour week. But if the entitlements were converted that the accrued weeks were converted to a 40-hour basis but paid at a 38-hour - converted to hours for a 40-hour week and then paid at a 38-hour week, they would be paid - the amount would be 5 per cent higher. It is clear to me that that is a 40-hour - either a 40-hour basis times a 40-hour rates or a 38-hour basis times a 38-hour rate. It is not 5 per cent higher.
PN700
Thank you. There is a copy of computer print-out which the witness does not have, if I could ask - but I think you will have a copy of that sir, as does Mr Addison.
PN701
MR ADDISON: It is in the bundle.
PN702
MR HULL: Could you identify that document please?---Yes. That was document that I found in Mr Basterfield's file and what it details is the leave that Mr Basterfield has taken between the period of 2 December 1998 and 29 April 1999. The hours are quoted in relation to a 40-hour week basis, so when someone has 1 day sick leave or 1 day's annual leave, 8 hours is taken off the accrual and I have gone through and I have added up the hours taken of long service throughout the whole of the period on those 3 pages and if I can refer back to the back of the page?
PN703
Yes?---At the right-hand side there is a series of tables there where it talks about total and it says: 32 30.98 to 5.10.98.
**** ROBERT CHARLES DALEY XN MR HULL
PN704
Yes?---Can everyone see that? If you look at those, and those hours have been extracted from this sheet and you take all those hours, 32 hours plus 8 hours, 327.6 hours, 160 hours, 32 hours, that totals to 559.6 hours divided by a 40-hour week gives 13.99 weeks which is - - -
PN705
Sorry, I - you have now?---Sorry.
PN706
It is down the bottom there, 59?---559.6 hours.
PN707
That is on the right-hand side about half-way down the page?---559.6.
PN708
Yes?---You divide that by 40. That shows that there is 13.99 weeks of long service leave that has been taken in this period.
PN709
Yes?---There is a figure alongside of that, 13.99 has been rounded to 14.
PN710
Yes?---Mr Basterfield took 8 weeks of long service leave between the period 11 January 1961 and 2 December 1988, so the 8 weeks for that period plus 14 weeks in this period equates to the 22 weeks of long service leave that he has taken that had been deducted across - off the 32.8259 which to me shows quite clearly that the basis of the calculations have been a 40-hour week.
PN711
I have nothing further with that. If I could hand the witness this document please? Sorry, if I could tender the computer print-out, sir?
PN712
THE COMMISSIONER: I have included that in all in part of the statement.
PN713
MR HULL: Sorry.
**** ROBERT CHARLES DALEY XN MR HULL
PN714
THE COMMISSIONER: So it is all part of N4.
PN715
MR HULL: There is a bundle of documents that you have been presented Mr Daley. Could you tell us what they are?---These are documents that in doing some research over the last week, I have looked to see - employees that have been retrenched in the last few years. These pages are copies of calculations of retrenchment or termination payments for a series of AMWU members who were terminated - who were retrenched and these people were retrenched on 5.07.00. The last calculation that was done manually prior to the payroll being out-sourced to Options. These calculations have been prepared on exactly the same basis as the manual calculations that I referred to before. So that people who were retrenched in May '99 the calculations were done, were hand-written on a pre-printed form. These have been prepared on a computer based form, but they are exactly the same. They talk about the weekly rate, they talk about the number of weeks' entitlements and again all calculations have been undertaken on a 40-hour basis and paid on a 40-hour basis and not a 38-hour basis.
PN716
Thank you. Options is Options Consulting Group. There role is what?---I'm not sure of the exact date because I wasn't employed at the time.
PN717
No, what do they do?---Sorry. Right at the moment, Options prepare our payroll for us, they undertake our payroll calculations.
PN718
How long have they done that?---My understanding is they commenced doing the payroll around about October 2000.
PN719
So the documents that you have looked at from Mr Basterfield and this bundle here, were they prepared before or after Options?---They were prepared Options were undertaking the payroll calculations for us.
PN720
Were you involved during the recent dispute - industrial dispute over this issue? Were you involved in meetings with union delegates?---I have been involved in a number of meetings with the union delegates, both local and officials from in town.
**** ROBERT CHARLES DALEY XN MR HULL
PN721
What has been put to you during those meetings as to why there is a problem here? What was put to you as being the issue by those union stewards?---The issue that has been put to me is that employees who have previously been retrenched have been paid their entitlements based on - their leave entitlements on redundancy have been paid at 38-hour week basis and we have been undertaking the calculations based on a 40-hour basis, and people have indicated that there has been an inconsistency in the calculations and the belief that the redundancy payments for leave entitlements should have been paid on a 38-hour basis rather than a 40-hour basis because of clause 11 in the agreement.
PN722
What is your response to that assertion?---My response to that is - that the leave entitlements up until the payroll - the other comment that has been made to me a number of times is that these calculations have been performed in a consistent manner forever. I have heard the statement made, there has been 600 employees made redundant over significant number of years and they have always been paid at a 38-hour basis. That is untrue. All calculations for leave entitlements for people who have been redundant up until the time that the payroll calculations were transferred to Options, have been prepared on a 40-hour basis. It is unequivocal. What has happened is - when the payroll was transferred to Options, Options have looked at clause 11 in the agreement, and in my view what they have done is interpreted that clause literally and then not looked and seen that the other clauses in the agreement refer to other sections of the EBA and to the award which lead you to believe that the calculations - the entitlements should be also converted to the overtime rate or 38-hour week basis. There is no doubt in my mind that the Options have not undertaken the calculations correctly and I suppose there is a side matter - if I can say this, I have been very displeased with the performance of Options in a number of areas, and not just me but a number of people - they have made significant numbers of errors. They have overpaid people, they have underpaid people, they have taxed people at the wrong rate. They have calculated a whole series of things - and the person before me and people and myself have had significant discussions with Options about their lack of performance, and I am moving to transfer and I have mentioned this to the stewards that I am moving to replace Options as our payroll calculator because I am most dissatisfied with their performance.
**** ROBERT CHARLES DALEY XN MR HULL
PN723
Thank you. In those discussions that you were involved in, the meetings with the shop stewards during the recent disputation, apart from - I think you have said, that it was put to you that was like it was always done. Was there any explanation given to you Mr Daley, why that was the case?---No.
PN724
I have nothing further, thank you.
PN725
THE COMMISSIONER: Mr Daley, do Options concede that they calculated it wrong now?---Options conceded that they had calculated wrong.
PN726
PN727
MR ADDISON: Mr Daley, can I take you to that computer sheet?---Yes.
PN728
The computer print-out?---Yes.
PN729
This is the print-out for the individual we talked about - Kevin Basterfield. Is that right?---Yes, that is correct. Yes.
PN730
Would Mr Basterfield ever seen this computer sheet?---I can't say. I don't know whether he has or hasn't.
PN731
Would Mr Basterfield have had access to this computer sheet if he wanted to?---There is no reason why he wouldn't have access to it, if he asked for it.
PN732
Would the information contained within this computer sheet have been available to Mr Basterfield generally?---Generally, no.
**** ROBERT CHARLES DALEY XXN MR ADDISON
PN733
Yes, and indeed each and every one of your employees would be able to have a computer sheet like this generated for them, wouldn't they?---This was under the old payroll system.
PN734
Well, let me withdraw my question and start again?---Mm.
PN735
The information that is on this computer sheet which would have been generally to Mr Basterfield. That same information is available to all of your existing employees, isn't it?---Yes.
PN736
Now, when Mr Basterfield took his leave, for instance back on 3 July 1995 to 7 July 1995, that was a week's leave, wasn't it?---Sorry.
PN737
It was 40 hours duration now and it says: annual leave, plus one, two, three, four, five, six, seven, eight, nine, ten - I think it is eleven?---Try the numbers on the side of it.
PN738
Yes. Number 142?---Okay. Yes.
PN739
Number 142, annual leave, Monday through Friday 3/7 to the 7/7 Mr Basterfield was paid 40 hours pay?---Mr Basterfield was paid 40 hours pay at a 40-hour rate.
PN740
Yes, and he took annual leave for a week?---He was off work for 5 days. Yes, that is correct, one week.
PN741
The entry below that, he takes 2 day's annual leave from 29 June to 30 June?---That is correct.
**** ROBERT CHARLES DALEY XXN MR ADDISON
PN742
He is paid 16 hours pay for 2 day's leave?---That's correct.
PN743
That is repeated all the way through, isn't it?---Yes, that's correct. Yes.
PN744
Now, there are two rates on the site?---Two rates on the site. Yes, people - a 38-hour rate and a 40-hour rate. Yes.
PN745
So there is a 40-hour rate which I think has been referred to as the weekly rate. Is that correct? If I can take to N2 and I take you to Mr Basterfield on the second page, there is something called the weekly rate which is $522.10?---Yes.
PN746
I presume that is the 40-hour rate?---No. The $522.10 is the wage - whether it is - - -
PN747
I accept that. For your administrative convenience you divide that by 40?---That is correct.
PN748
That is paid for 40, right? there is a second rate which is paid for overtime purposes as I understand it, which is slightly higher. for instance, if you take 522.10 you divide it by 38 - by 40 sorry, which I did over lunch and you come to $13.73. That is the rate.?---I haven't got a calculator but yes, I accept your figures.
PN749
My maths might be wrong but for the purposes of this, that is the rate 13.73. So that is 522.10 divide by 40. Okay. If you were take 522.10 and divide it by 38, you would come to a different rate - you would come - let us say 14 bucks for the sake of the argument. Okay. If Mr Basterfield back in 1998 or the last time the rate was raised to 522.10, if he worked overtime he would have got 14 bucks per hour?---Yes, that is correct.
**** ROBERT CHARLES DALEY XXN MR ADDISON
PN750
Multiplied by the appropriate award penalty?---Yes.
PN751
Time and a half or double time?---Yes.
PN752
So we have very clearly two rates on the site. We have a weekly rate which is the wage divided by 40 and an overtime rate which is the wage divided by 38. Now it is true, is it not that not only do you pay people for a week's leave of 40 hours, you accrue a week's leave at 40 hours. That is correct is it not?---That is correct.
PN753
If you have a look at A1 which is the document that is actually right in front of you. If you have a look at A1 which I have from mine, but if you have a look at that, that's Gary's - that is three payslips of Gary's. If you look at the right-hand side, the far right-hand side you will see the pro rata annual leave calculation which rises each week, and you don't need to do the mental maths - I have done - I didn't do it mentally, but it is 3.06 hours per week increase, which is commensurate with a 40 hour accrual. You would agree with that, wouldn't you?---That is correct, yes.
PN754
Now that is available for all the employees. All the employees now that they are current on a 40-hour basis and that is not for administrative simplicity as I understand it, and that is fair enough, and from your computer sheet I understand that that accrued regime - 40-hour regime has been in place at least as far back as 1988. Is that correct?---I'm not sure but - I'm not sure when the 38-hour week came in, so I am presuming that is the - - -
PN755
Well, maybe we ought to just go to the very end of the computer sheet. The last entry, the first or the last entry, however you want to take it, does not demonstrate that adequate, but the second entry I believe does?---Yes.
PN756
That sick leave for Wednesday and Thursday 8-9.2.1989 and those appeared at 16 hours, that is 2 days. That is correct?---Yes.
**** ROBERT CHARLES DALEY XXN MR ADDISON
PN757
So we have a position where the accrual of entitlements and I presume it is for all purposes, you do this for all purposes of the award, you don't just don't do it for one or two items, do you? You do it for everything?---Everything, yes.
PN758
So it annual leave, long service leave, sick leave and whatever else is accrued on an 8-hour basis and that has been done for at least 15 years that we know of, given the fact that it is 2004 today. So we know that for 15 years that accrual has been done on an 8-hour basis. The employees have been away because they get their payslips every week, that they accrue on a 40-hour basis. That is true, is it not?---That's what their payslip says, yes.
PN759
Yes. If they take leave they get paid 8 hours per day. Now, can I ask you when you out-sourced your payroll to Options in October 2000, were Options given a copy of your enterprise agreement?---Yes. I wasn't there but I know that Options have a copy of the agreement and I have talked to them since I started employment, and I have referred to the EBA. So I know they have a copy of it, I can't categorically say whether they did at that date, but I presume they did.
PN760
There is a bundle of agreements. I don't know - can I give you this bundle of agreements. I am sorry, Commissioner, this is 1988 and '96 agreements which I haven't tendered. I would seek to tender after the witnesses have finished, so you have got it, if you haven't already got it Commissioner?
PN761
THE COMMISSIONER: They are Commission documents.
PN762
MR ADDISON: They are Commission documents, I understand that but just for reason of sorting them. Can I take you to those agreement, if I can find my copies?---Yes.
PN763
Can I take you first of all to the 1998 agreement which is the first in the bundle?---This is ninety - sorry, yes.
**** ROBERT CHARLES DALEY XXN MR ADDISON
PN764
If you work through the agreement and then into the appendices and go to appendices B which is the redundancy agreement and then go to page 3 of 5 of the redundancy agreement?---Yes.
PN765
Then you go down to clause 11?---Yes.
PN766
You can see there the words:
PN767
Pay rates in relation to all aspects of this agreement will be the rate used for the calculation of overtime.
PN768
?---That is correct.
PN769
Now, you agree with me that the rate used for the calculation of overtime is the weekly rate divided by 38?---The payment for the overtime is the weekly rate divided by 38. That is correct.
PN770
So the words in clause 11 are quite unambiguous with regard to that, you would say the correct interpretation to those words, putting aside any other consideration, any other consideration, in terms of the example we have talked about is not $13.73 it is 14 bucks. You would agree, wouldn't you?---I would agree.
PN771
Yes. Now, I take you back to the 1996 agreement which you find straight behind that document. there is in this copy no redundancy agreement. Were you employed in 1996 by the company?---No, I wasn't.
PN772
In that case it is pointless going to the 1996 agreement. Don't worry about it. In the current agreement which I am afraid I can't give you a copy of - in the current agreement at clause 11 of the redundancy agreement the words read:
**** ROBERT CHARLES DALEY XXN MR ADDISON
PN773
Pay rates in relation to all aspects of this agreement will be the rate used for the calculation of overtime.
PN774
I don't know if you are familiar enough with that agreement to be able to confirm that, are you?---Yes. Yes.
PN775
I will easily hand to you if you are not sure. They are the words in the current agreement. Once again, putting aside any other consideration?---It is pretty hard to do that, because you can't just read one clause in isolation.
PN776
Try it?---But for the sake of your argument, yes.
PN777
But putting aside every other consideration, those words of mine, given our friend, Kevin, that the rate would be 14 bucks, not 13.73, that is agreed?---The rate would be $14, taking no other factors into consideration - - -
PN778
Before the calculation of overtime, yes?---Yes, for the calculation of overtime, yes.
PN779
When you sourced two options, one presumes you were given them, both the general enterprise agreement and the appended redundancy agreement?---I presume so, yes.
PN780
Yes. Now start bringing the other considerations?---Yes.
PN781
Can you point to me anything in the main agreement that contradicts the words in clause 11 of the redundancy agreement, anything at all?---In the 1998 agreement or the 2000 agreement?
**** ROBERT CHARLES DALEY XXN MR ADDISON
PN782
In the current agreement or the 1998 agreement. I don't think there's much difference between them.
PN783
THE COMMISSIONER: Could I have a copy of the 2000 Agreement, please?
PN784
MR ADDISON: I will give you the 2003 agreement which is the current agreement.
PN785
THE COMMISSIONER: I presume those clauses are no different between the 2000 and 2003?
PN786
MR ADDISON: No, but I will happily give you a copy of this. This was certified by Commissioner Blair on 9 December 2003, and I will hand the witness a copy of the current agreement.
PN787
THE COMMISSIONER: Clause 7: long service leave.
PN788
MR ADDISON: Yes. Clause 7: long service leave, how does not contradict the words in clause 11: redundancy?---
PN789
Payment of long service will be in accordance with the current enterprise agreement - - -
PN790
That is correct?---
PN791
- - - and the current enterprise agreement.
**** ROBERT CHARLES DALEY XXN MR ADDISON
PN792
My understanding, I am not a lawyer, but my understanding is where the enterprise agreement is silent you revert back to the award and the award talks about hours of long service leave and similar clauses for annual leave and untaken sick leave. The award talks about 2.923 hours of annual leave per week of service which, if you multiply 2.923 hours times 52 gives 152, not 160 and that is where I would contend that if you are looking at the award which said: 2.923 times 52 weeks is 152 times the 38 hour week rate, gives exactly the same dollar amount as 160 hours times the 40 hour rate.
PN793
We are not talking about the award are we, we are talking about the agreement?---But my understanding and I'm not sure who I asked for clarification but - - -
PN794
THE COMMISSIONER: You are answering and giving your view.
PN795
MR ADDISON: That is all right?---Okay, my view - - -
PN796
I'm happy for you to go, you just keep going?---Okay, the understanding that I have if the EBA is silent on any particular aspect or not clear then it is the award that takes precedence and the award quite clearly talks about: 60.8 hours of sick leave which is 8 times 7.6 and 2.923 hours of annual leave and similarly for long service leave.
PN797
That agreement isn't solely on long service leave is it? There's a clause with regard to long service leave isn't there?---There is but my under - - -
PN798
What does the clause say?---Pardon?
PN799
What does the clause say?---Payment of long service leave will be in accordance with current enterprise agreement.
**** ROBERT CHARLES DALEY XXN MR ADDISON
PN800
Right, that is correct. Now there is a clauses on annual leave?---Just talks about annual leave loading. Does not say - does not give the basis of the calculation for annual leave entitlement.
PN801
That is right, does not give any basis of calculation, that is okay. Do you see that clause on annual leave is in contravention or is somehow in conflict with clause 11 of the redundancy agreement?---In my view, if you are going to change the basis away from the way that we present accruals on a 40-hour basis, you have to then look at the way that you accrue.
PN802
Nobody is suggesting that. I'm just asking a simple question. Do you see that the clause on annual leave or annual leave loading is in any way in conflict with clause 11 of the redundancy agreement. It is yes or no, basically, I guess. If it is "yes", you might want to elaborate but - - -
PN803
MR HULL: I am not quite sure what the relevance of this question is because it is totally irrelevant to what the witness' view of the correct interpretation is. It is a question of law, it is not a question of what the witness thinks.
PN804
MR ADDISON: I agree with my friend. I withdraw the question. I put it to you that you were absolutely correct in your evidence in chief with Mr Hull when you said that you sent your payroll to Options, Options had a copy of both your agreements. We know that now, both the enterprise agreement and the redundancy agreement. I put it you that the Options have actually read both agreements and Options have interpreted the redundancy agreement literally and that they have interpreted it correctly. You disagree with that, I presume?---I disagree with that quite strongly and Options now disagree with that.
PN805
Well Options probably - I withdraw that, that would be really cheeky. I actually have nothing more for this witness, Commissioner.
**** ROBERT CHARLES DALEY XXN MR ADDISON
PN806
THE COMMISSIONER: Mr Hull?
PN807
MR HULL: I have nothing further.
PN808
THE COMMISSIONER: Mr Hull, you put up a document before which I didn't mark and it will be N5.
PN809
PN810
MR HULL: That was the collection of the pays.
PN811
THE COMMISSIONER: Yes.
PN812
MR ADDISON: Could I get my agreement back please?---Sorry.
PN813
That is fine. When you are ready, thanks.
PN814
PN815
THE COMMISSIONER: Calling anybody else?
PN816
PN817
MR HULL: Mr Parow, what is your position?---I am the CEO of Natra Group.
PN818
That is Natra Group. What is the relationship of Natra Group to Natra Pty Ltd?---Natra Group owns Natra.
PN819
Your role then - sorry, I appear to be asking you the painfully obvious, but your role with respect to Natra Pty Ltd?---Okay. I'm also the general manager of Natra Pty Ltd as well as being the CEO of the group.
PN820
Right, and with respect to the issue that we all know we are here about and the employees concerned, what is your - well, who do they work for, what company?---The include - we talking about, Natra Pty Ltd.
PN821
Right, your role therefore is general manager - - -?---Correct.
PN822
- - - of Natra Pty Ltd?---That's right.
PN823
How long have you held that role?---I think I started in the role in April or May 2000, so about 4 years.
PN824
Before that, what was your - - -?---I was in a role for a period of about 3 or 4 months with Austrim, a broader role where I did some consultancy work across the businesses. Prior to that I was managing director of Stanley Tools for a period of about 2.1/2 - 3 years.
PN825
And the relationship between Austrim and - at that time, and Natra?---Austrim was the owner of Natra.
**** MARK STEVEN PAROW XN MR HULL
PN826
What do you say about your role and responsibility with respect to Natra Pty Ltd in terms of industrial relations matters?---Well, as the general manager - I mean, everything eventually stops with me.
PN827
In the - 2000 Mr, I think it was Mr Denver Alvis was your operations manager?---Yes, yes he was.
PN828
What function did he have with respect to industrial relations?---I mean, he represented, I guess, the management in dealing with the union at the time. I wasn't involved in the meetings but the outcome of all the meetings, any recommendations, were then taken from those meetings and put to me by Denver, so he was my representative, if you like, in dealing with the unions through campaign 2000.
PN829
You recollect the events around campaign 2000?---Yes I do.
PN830
And the negotiations for the 2000 Certified Agreement?---Yes.
PN831
If I can hand you a copy of N1, if the witness could see that. Thank you. There's two documents there, Mr Parow. Are you familiar with those documents?---Yes, I am.
PN832
The first one in that bundle dated 5 September, what is that document?---That was an agreement reached between myself and the shop stewards. From memory, we had been negotiating for quite some time. There had been some issues, even to the point where industrial action resulted in some closure at Ford which actually made the papers so you tend to remember all that stuff I guess. One of the issues around Natra at that point in time was that in September '99, the employees were informed that the Ford contract had been awarded to another company and within 3 years that contract would cease, so when I joined Natra - - -
**** MARK STEVEN PAROW XN MR HULL
PN833
I will just stop you there, what would be the effect of that?---That there would be a lot of redundancies, obviously. Ford was about, at that stage, about a third of our business - all manufactured at Noble Park. So when I joined Natra, and the EBA came up shortly after I joined, and that was during campaign 2000 for the employees at the plant, they were particularly interested in making sure that what they I think regarded then as being an inevitable redundancy, was well catered for. From memory, I don't think redundancies were part of the union's campaign 2000. They were after, I think, 5, 5 and 5, income protection. I think even then employee entitlements was part of it and it might have even been, I think, long service leave after 10 years but at our plant the guys weren't, I guess, as interested in some of those points as they were about their redundancy. I had offered 4, 4 and 4, up front, which was a number of months earlier. That had been rejected. I had been asked to increase the redundancy from 3 to 4 weeks. That wasn't getting anywhere and eventually the three shop stewards, of which one is in the room here, approached me in my office and said that they were willing to accept a quantum 12 over the 3 years, as I had stated as long as we increased the redundancy from 3 weeks to 4 weeks per years of service and increased the cap. They then asked if I would make that 5, 5 and 2 and I can only gather in doing that, that was because they were concerned that after 2 years they may end up losing their jobs and it was better to get the higher pay up front. I agreed to it which is why we signed that document and they then had to go and sell it to the AMWU. So that was an agreement between the shop stewards and myself. We were all happy with that but that had to go through the AMWU.
PN834
The next document, the one dated 3 October, what is that document?---That is a - it is a month later and I can only assume that between the original agreement and that one and I have read these words: that we had reached agreement, and what we normally do is, we then from the company's viewpoint put out the things that have been agreed to, so that was a notification and I can't recall whether that was on notice boards or mailed to employees, informing them what agreements had been reached. If you go to the second page, it talks about, you know, the wages. The other thing was the alignment of the agreements. The union wanted them to all expire, I think, on 31 March, which we agreed to and it goes through there, all of the clauses. So we actually wanted our employees, as we would normally do, to understand what variations there were or what changes there were to the previous agreement and that is what that document would be.
**** MARK STEVEN PAROW XN MR HULL
PN835
Okay. I am going to take you back with - the money claim was what, originally - from the union?---Five, 5 and 5 was campaign 2000.
PN836
Your evidence is that you settled, according to this document, on 5, 5 and 2?---That's right.
PN837
Arithmetically, a 12 per cent increase?---Yes.
PN838
I imagine that the actual result is slightly different. On what basis did you agree to - or do you recall any basis on which you agreed to move from that arithmetical 15 per cent, down to 12 per cent?---Well, I never offered 15. Right from day 1, I offered 12. We put it 4, 4 and 4 but I made it clear that it was a quantum 12 over 3 years, and in the end it was the shop stewards that came to me and asked if I would pay 5, 5 and 2 and I said I was happy to do that. I didn't mind how the 12 was paid in effect and if you actually calculate 1.05 times 1.05 times 1.02, it is slightly less than 1.04 times 1.04 times 1.04, so it was slightly in our favour, assuming of course that we didn't have a massive redundancy earlier on.
PN839
I will use paraphrase to make sure I'm right, what you are saying is your response to the wages claim didn't vary except that the offer that you made was slightly in your favour?---I was a, I was a new general manager a month or two after I joined campaign 2000 hit and we felt that 4 per cent per year was at the top of what we could afford as a business, remembering that we'd just found out that we were going to lose a third of our business, so I made an offer of 12 over 3 years and as I said, being new in the role, I felt that it was important that I held to that. I didn't want people to think as we went down the track that what I'd put up wasn't serious and, in the end, we did not vary, we held, we held our line on the 12 but we did agree, after request from the three shop stewards, not the union, just those three people in my office, to go to 5, 5 and 2.
PN840
You agreed to an increase in the redundancy package from 3 to 4 weeks per year of service and 64 week cap to 72 week cap, that is correct?---Yes.
**** MARK STEVEN PAROW XN MR HULL
PN841
What do you say to the suggestion that that agreement was a trade-off for coming down from 15 per cent of wage increase to 12 per cent?---Well, it wasn't - as I said, our original offer was 12 and the redundancy wasn't to be changed. The guys in the plant clearly wanted to improve in the redundancy. That was more important to them than getting the 5, 5 and 5 and we actually had agreement. At one stage - we had agreed on that. I then flew to New Zealand on business, a trip I'd put off about three times and received a phone call after Darren Nelson went out to the factory and turned the agreement over. So an agreement that I'd made with the shop stewards, again, not the union, just the three shop stewards, of 12 per cent and an improvement in the redundancy package was over-ridden by Darren Nelson and the reason that he did that is that the union were pushing campaign 2000 and they wanted the key political ins which was 5, 5 and 5 and the other things I mentioned. Redundancy issued to them was irrelevant because - it is more a site specific thing, and that was overturned. At one stage we had agreement. It was then flipped over by the union but in the end the shop stewards took a much stronger stance because that is what they wanted at Natra because they were frightened of losing their jobs and we were very open about the fact that Ford was gone and there would be redundancies around September 2002.
PN842
Now, you are well aware, I assume, of the recent industrial dispute out at your premises?---Yes.
PN843
You are well aware of the basis of it?---Yes.
PN844
And that basis is an argument about the manner in which leave entitlements to be paid out under redundancy are to be calculated - - -?---Mm.
PN845
- - - and that that issue is about whether or not they should be cumulatively - those entitlements should be accumulated on the basis of a 40 hour week, or a 38 hour week?---Yes.
**** MARK STEVEN PAROW XN MR HULL
PN846
Yes. Now, the question - this difference between using a 38 hour divisor, or 40 hour or divisor or factory, was that raised at any stage during your negotiations for the campaign for the 2000 EBA?---I mean, I'd never heard about it until Bob raised it with me which would have been, I don't know, a month or 2 ago, whenever all this thing started. I'd never heard it and didn't really understand it all that well when he first raised it with me.
PN847
So that is this year?---Yes.
PN848
Do you know Mr Greg Beaty?---Yes, I do.
PN849
Within 2000, what was - did you know him in 2000?---He was my boss.
PN850
Yes, okay. What was his position then?---He was - I think his title was group general manager or executive general manager, Ajax Fasteners and Industrial Products, so he looked after about - I think it was about 18 companies and Natra was one of their 18 companies.
PN851
Right. What do you say to the suggestion that he verified, or that he said that there would be no increase in the redundancy provisions at Natra because the agreement was already generous because it was paid out on a 40 hourly basis? What do you say to that?---Well, that's just rubbish. I mean, he wouldn't have even known about it.
PN852
What do you say he wouldn't know?---I mean, I didn't know about it until 2 months ago. I mean, I was running the business and no one else at Natra that I've ever spoken to knew about it until 2 months ago and for anyone who knows Greg - Greg is a pretty sort of, hands-off autonomous guy. I mean, there's no way known he would've known and I actually spoke with him yesterday. I rang him and asked him and he didn't know what I was talking about. He didn't - like me, he didn't really understand the nuances of the calculations, if you like.
**** MARK STEVEN PAROW XN MR HULL
PN853
I have nothing further, Commissioner.
PN854
THE COMMISSIONER: Mr Addison?
PN855
MR ADDISON: Yes, Commissioner, one second. Thanks.
PN856
MR HULL: I'm sorry, I do have one more, sorry. You were involved then in the recent dispute with meetings of the shop stewards, with your shop stewards? What was put to you by them as to why they were on strike, why were they having a dispute with you?---I guess - okay, and I've got to remember the sequence here because - my first knowledge of the calculation issue was when Bob raised it with me. The shop stewards wanted us to pay them at that higher rate and believed, I think, that that was their right as we had - as we had according to them, paid people like that in the past, and obviously we had found out in the previous two, under options, that that had happened, so their view was that as we paid other people on that basis, that we should continue to do that, going forward. I mean, that was my understanding of what they were saying.
PN857
Did they give you any other reason why you should be paying it?---Apart from something that they thought they saw, which I obviously totally disagreed with, as a moral issue on their side, I don't recall anything else being talked about. There was a talk about the clause in the EBA obviously but I think, I mean, after going through that and I had a meeting with Paul Waznuski and the shop stewards and went through all this and I think in that meeting my interpretation was that Paul, at least, clearly understood that this was an opportunistic thing and he said that he had never seen this any other side and it wouldn't be there in the future and then started telling me about moral high grounds and all those things which, as I said, I fundamentally disagree with because, I believe we had made an error in the past. We had overpaid people, we had agreed that we weren't going to pursue those people to get money back and we even said that we would take the existing round and pay them at that higher rate and Paul acknowledged in that meeting that: yes, okay, they were being opportunistic. They were trying to take advantage of something. So that is really the extent of it, of my dealings with organiser and the shop stewards.
**** MARK STEVEN PAROW XN MR HULL
PN858
Was it suggested to you at any time that there was an agreement, in writing or otherwise?---Sorry?
PN859
Okay. There's nothing further, thank you.
PN860
PN861
MR ADDISON: Mark, you said you had made a mistake in the past. You said you had a meeting with Paul and the delegates a couple of weeks ago, I guess, and that Paul had acknowledged that there had been a mistake in the past?---Yes.
PN862
When was that mistake?---Well, as far as I knew, it happened under Options, while they were doing our payroll, but I mean, I hadn't dug in and had a look how long it had been done for. I had been told by Bob Daley that the union were - at that stage, I don't know whether the union was involved or whether it was just the people involved. The people had said that they were being paid - they weren't being paid properly, so that was really the mistake as I knew it and I didn't know how far back it had been going on for.
PN863
So you didn't inquire into the mistake?---No, not in terms of detail, calculations and those things.
PN864
So you don't know any of the detail. That is fair enough. If you don't know, you don't know?---Yes.
PN865
You can only give evidence on what you actually know. Now, I want to take you back to 2000 to campaign 2000. I think you said you offered 4, 4 and 4 at the front?---Yes.
**** MARK STEVEN PAROW XXN MR ADDISON
PN866
The union's position was 5, 5 and 5. There was some industrial activity around campaign 2000?---Yes there was. As I said we closed Ford down at one stage, so yes.
PN867
Yes. I think you were the first company to get an interim 127, if I am correct?---I don't know whether we were the first, but we got a - I don't know what evidence 127 - what we got was, we applied for an end to the bargaining period and we were granted that.
PN868
Yes, the MW application, yes. Did the MW application come before Munro J, in about September 2000?---I can't remember the time but it would have been around about then I think, yes.
PN869
There was some conciliation with Munro J, at that point in time?---None that I was involved in. I mean, I am unaware of any.
PN870
No, I am not suggesting you were personally?---I am unaware of any.
PN871
You are unaware of any?---Yes, yes.
PN872
Ms Pope has given evidence that there was at least two or three conciliations in the Commission. You would not be a position to say if that is true or false would you?---I, I've never heard about it and I would be surprised it that happened without my knowledge when I was the general manager of Natra, so I would expect that that didn't happen.
PN873
Was Natra still part of Austrim at this point in time?---Yes, it was.
PN874
So Mr Beaty whom we have spoken about, Greg Beaty, he was involved with Natra's situation?---No he wasn't.
**** MARK STEVEN PAROW XXN MR ADDISON
PN875
No?---No.
PN876
Wasn't he part of auto?---He, he was my boss so that when you say: the Natra situation in terms of the EBA negotiations around the meetings, etcetera, no. Greg was not involved at all. The only involvement that I know that Greg had was with Craig Johnson who was at that stage, obviously, as the unions do, trying to get campaign 2000 across Austrim, and that was the 5, 5 and 5.
PN877
We have heard evidence from Ms Pope this morning that in fact the conciliations in the Commission and the evidence is a bit unsure but we are sure at this point that Mr Beaty had an involvement. We weren't sure whether the involvement was directly in terms of the meeting face to face or whether he was in the coffee shop but we had evidence that Mr Beaty was here?---I would think that that would be untrue because, if you are talking Natra - - -
PN878
Yes?---I would say "no" - and I asked this of Greg yesterday when he had no knowledge of it, and his comment to me was that: to his recollection, and you know, he is in his late forties now so he can't remember everything but - - -
PN879
Be careful?---Well, I am too, so it is all right. To his recollection, he had only ever been involved with the Commission in one thing and that was that there was a lock-out at Braeside which was Ajax Fasteners, which I think was around about a similar time, and he thought that he was involved and it was a - I thought he said, Watson J.
PN880
It would be - I don't think there is a Watson J?---Isn't there? Okay, well, he thought the guy was Watson.
PN881
THE COMMISSIONER: There is a Senior Deputy President Watson.
**** MARK STEVEN PAROW XXN MR ADDISON
PN882
MR ADDISON: Indeed there is?---He thought the guy was Watson. He didn't know of anything with a Munro, and certainly he was categorical in saying that he had never been involved in anything in terms of Natra. You see, Greg was a bit like me that in apart from having the group role, Greg actually ran the Ajax Company so that is where his involvement was.
PN883
Yes. Well, the section 170MW application came up before Munro J. It was C36641 of 2000 and it involved Natra, Amcor closure, Steel Fine Fabrications and various other companies. Would Mr - - -?---It was an AIG thing was it, obviously?
PN884
Yes, it was sponsored by AIG, is it possible that Mr Beaty was involved in that?---Look, I have no idea. That one I can't answer. All I did is I asked Greg yesterday whether he knew anything about being involved with anything in terms of Natra, and his answer to me was that his only recollection of ever being involved with the Commission was with the lock-out at Braeside. As I said, I think that happened - and that was Ajax around about the same period of time.
PN885
Now, you have been general manager of Natra now for 4 years I think you said?---Yes.
PN886
You do accept that there are two different wage rates on the site? There's what has been called: the weekly rate which is the 40 hour divisor if you like, and the overtime rate which is the 38 divisor. You know about them don't you?---Yes, I mean, if that's what you call it. I know about what we've been talking about, right? Yes, yes, okay.
PN887
I think that is what we have been referring - I think that has been at least my shorthand. I don't know if it has been anybody else's but it has certainly been mine, that the 40 hour rate is the weekly rate, and I think the last witness agreed, it was effectively the weekly rate, and the 38 hour - - -?---weekly rate is the - - -
**** MARK STEVEN PAROW XXN MR ADDISON
PN888
Thirty-eight divisor is used for over time purposes?---Whatever Bob says is what happens, yes.
PN889
Whatever Bob says is - that is fair comment?---Whatever Bob says in terms of paying people, I accept that, yes.
PN890
That is fair comment. In fact you haven't got any expertise in the payroll area. That is Bob's area is it?---Correct.
PN891
Yes, okay that is fair enough, and that is why you said you didn't understand all the nuances of the various calculations, etcetera?---And if you tried to baffle me with it now I'm sure you could do it successfully.
PN892
I have no intention of baffling anybody. I don't want to baffle anybody. I have nothing further for this witness, Commissioner.
PN893
THE COMMISSIONER: Thank you. Do you want to come back?
PN894
MR HULL: No, I have nothing.
PN895
PN896
MR HULL: I have, as I have indicated, no more witnesses for the moment sir, but we do have the prospect of perhaps having to call Mr Beaty. He has been at the focus of at least a number of the assertions which might, if accepted, lead to a conclusion that there was some form of agreement, or at least there was an acknowledgment of an accepted practice at the plant. It seems to me that, in terms of being able to deal with this matter, if it is acceptable to the Commission, what perhaps - it is slightly unorthodox but what could happen is Mr Addison and I could both put our respective submissions to you and then I would be, on the basis that, if having heard them, you were satisfied you had hear enough to be able to make a determination on the matter - - -
PN897
THE COMMISSIONER: Yes, I know where you are going and I am satisfied with that.
PN898
MR HULL: Then we won't need to call Mr Beaty.
PN899
THE COMMISSIONER: Yes.
PN900
MR HULL: If nothing else there could be a simple physical problem as I understand, for instance, he has been in the country for 3 weeks so far this year so he is mostly overseas and it would be difficult and would prolong the matter but if needs be and if you are not in a position to be able to say that: well, yes one way or another I have heard enough and I can make a decision, then I will be asking for an adjournment so we can arrange for him to be called.
PN901
THE COMMISSIONER: All right, then we will proceed. Mr Addison?
PN902
MR ADDISON: Commissioner, I just wonder if it is possible to have a 5 minute break before we start submissions.
PN903
THE COMMISSIONER: Yes.
PN904
MR ADDISON: Thanks Commissioner.
PN905
THE COMMISSIONER: You are not going to look for anyone in the coffee shop are you?
PN906
MR ADDISON: No, I'm not looking for anybody in the coffee shop. I just need 5 minutes to gather my thoughts.
PN907
THE COMMISSIONER: We will adjourn for 5 minutes.
SHORT ADJOURNMENT [3.40pm]
RESUMED [3.53pm]
PN908
MR ADDISON: Thank you for that, Commissioner. Commissioner, I am presuming that you do have a copy of the current extant Natra Enterprise Certified Agreement. That is the certified agreement that was certified by Commissioner Blair on 9 December 2003.
PN909
THE COMMISSIONER: In respect to the appendix, the redundancy agreement appendix. Is that what you are taking into - - -
PN910
MR ADDISON: The appendix is actually appended to the agreement, sir.
PN911
THE COMMISSIONER: No, I haven't got the agreement. You had better give it to me.
PN912
MR ADDISON: I don't think anything really turns on that except clause 12 of the substantive agreement talks about the redundant employees' entitlement in terms of the severance amount and the words with regard to that are that redundant employees will receive an amount equivalent to 4 weeks ordinary pay for each completed year of service. Now, I don't think anything turns on that on the basis that this argument is pretty confined and this argument is confined not to the severance amounts, because they are pretty clear. It is 4 weeks, ordinary weeks pay per year of service and I think it is common ground between us that that means the weekly rate.
PN913
What this argument turns on is effectively clause 6, clause 7, clause 8 and clause 11 of the redundancy agreement attachment. Commissioner, if I could start first of all with clause 11. We agree with the evidence given by Mr Daley that one can't read these things in isolation and they need to be read in a combined sense. In fact, before starting there, if I can just address an issue first which would normally, under normal circumstances, be a pre-requisite for the Commission to exercise its power pursuant to section 170MD(6) and that is that the Commission must be satisfied - the authorities tell us that the Commission must be satisfied - that there isn't ambiguity or a certainty prior to an exercise in the discretion and varying or not varying a certified agreement to remove such ambiguity or uncertainty.
PN914
It is agreed between the parties that there isn't an uncertainty and ambiguity. I think the agreement between the parties, which was reached last week, was that the ambiguity and uncertainty arises because of the construction of the redundancy agreement when read in conjunction with the relationship parent award provisions of the principal agreement, which is clause 5 of the principal agreement. I do not intend to say more on that than that unless the Commission wants me to address it further with regard to that matter, given that our first preliminary step that the authority says it put.
PN915
THE COMMISSIONER: No, I don't.
PN916
MR ADDISON: No, good. Then I will move to the construction of the redundancy agreement. As I said, in my submission it revolves around clauses 6, 7, 8 and 11. Commissioner, the evidence with regard to the matter before the Commission is pretty much agreed. There are very very few disputed points between us with regard to the evidence. The evidence is that the company applies two periods. It applies the period which is the weekly rate divided by 40 which, for shorthand I will call the weekly rate, and it also applies, in certain circumstances - and those circumstances are the circumstances of overtime - a rate which is the weekly rate divided by 38, which is the overtime rate.
PN917
That means that there are two extant rates of pay for each classification on the site. The lower one being what is paid for the normal hours of work, if I can put it in those terms. The higher rate being the rate that is paid for overtime. The company has applied those two rates for at least, on the evidence, 15 years and I refer to the computer sheet, which I don't think was marked separately. It is part of one of the witness statements and the computer sheet - and Mr Daley conceded in his evidence that as far back as 9 February 1989 the 40 hour rate was in use. It was used for convenience and it saw, it says that if an accrual of entitlements at the rate of - or should I say, commensurate with a 40 hour week.
PN918
Now, if I can take the Commission to clause 6 of the agreement. That is the redundancy agreement. Now, the redundancy agreement clause 6 says annual leave loading will be payable on all accrued and pro rata entitlements up to the time of leaving the company's service. If I can then take the Commission to A1, which is the payslips. The accrual standing to the employees' credit is actually recorded on a week by week by week basis on the payslips. It is on the payslip in this particular example, the delegates' three payslips. It rises over 3 weeks from 153.78 hours accrual through to 159.9 hours accrual.
PN919
However, the obvious entitlement which is commensurate with that accrual is dependent on what a person's taken, as I understand the way the payslip is structured. Now, Commissioner, we say that that accrual is very clearly and very unambiguously an accrual commensurate with a 40-hour week and that accrual would see, on an annual basis, 160 hours of annual leave for each employee over a 12-month period. If I can then take the Commission to clause 7 of the agreement.
PN920
That deals with long service leave and it deals with payment of long service leave on redundancy and it is very clear and unambiguous that the payment of long service leave will be in accordance with the current enterprise agreement and in addition those employees with at least 5 years continuous service at the time of redundancy will be paid the pro rata long service leave in accordance with the above.
PN921
One then needs to go back to the main body of the agreement which does have a clause on long service leave and that clause is contained at clause 8 of the certified agreement. Now, the pertinent part, or the pertinent two parts, are 8.1 and 8.2 of the long service leave provision. You would recall that Mr Daley, in his evidence, referred to the fact that the long service leave clause talks about the Metal Industry Award long service leave provisions and at 8.1 it does. 8.1 says:
PN922
Employees covered by the agreement shall be entitled to long service leave in accordance with the provisions of the Metal Engineering and Associated Industries Award 1998 part 4 which replaced...
PN923
Blah, blah, blah. 8.2 of the substantive agreement then qualifies that provision by saying that 13 weeks long service leave after 10 years of service the accrual rate of 1.3 weeks per year of continuous service, effective from 31 March 1998. Prior to that date of 31 March 1998, the accrual rate will be at .866 weeks per year. Now Mr Daley, in his evidence, has said that the 40 hour accrual is used for all purposes. It is not confined simply to annual leave or any other single item. It is for all purposes and we say that clearly the 1.3, or the .866 accrual levels are connected to a 40-hour week.
PN924
Now, I haven't done the maths. I will be honest. I know that Mr Hull has done the maths for his table but I haven't done the maths but the accrual, we say, is somewhat higher than the accrual set out by Mr Hull in his table where he says 24.7 hours per hour to December 1964, 32.9 hours to March '98 and 49.4 hours from 1 April '98. The accrual rate will be something more than that because the accrual rate must be based off a 40-hour week, we say.
PN925
The third matter that I wish to take the Commission to is clause 8 of the redundancy agreement which clearly once again unambiguously says:
PN926
Each retrenched employee shall receive the value of the untaken sick leave standing to his or her credit at the time of termination of service up to a maximum of 96 days.
PN927
Now, in terms of the entitlements we say the evidence is clear. The evidence is unambiguous. The accrual rate - whether it has been done for administrative ease, or whether it has been done for any other purpose is irrelevant - the accrual rate is based on a 40-hour week. The evidence is unambiguous that employees were all aware of that position. Now, that was the evidence of the delegate that employees knew. That is what they accrued. It is on their payslip. It tells them week in and week out.
PN928
It is also the evidence of the employer that the employees knew that that was the accrual. The employees were very well aware that that was the accrual and the employees had access to the information, or information similar to that contained in the computer print-out of Kevin whatever his name was. So we say it is a very very clear position known on the job.
PN929
That then takes us to clause 11 and clause 11 once again of the redundancy agreement is unambiguous, in my submission. Clause 11 clearly states that pay rates in relation to all aspects of this agreement - now, that is not the certified agreement, in my submission, Commissioner. That is the redundancy agreement. It doesn't apply to the certified agreement and in fact the redundancy agreement, which is an attachment to the certified agreement, is to all intents and purposes a separate agreement.
PN930
THE COMMISSIONER: Why do you say that?
PN931
MR ADDISON: Because that is the way it has been expressed in both - - -
PN932
THE COMMISSIONER: It is an appendix to an agreement.
PN933
MR ADDISON: It is an appendix to an agreement indeed, Commissioner. If you go - - -
PN934
THE COMMISSIONER: So on your argument it should say in 11: pay rates in relation to all aspects of this appendix.
PN935
MR ADDISON: Well, possibly, yes but Commissioner, if you go back to the 1998 agreement - I know I haven't given you a copy of these documents and maybe it is appropriate that I do now. Can I hand up a copy? Have you got a copy?
PN936
MR HULL: No, but I understand the wording is the same in clause 11 for all of them.
PN937
MR ADDISON: I think in clause 11 it is.
PN938
MR HULL: All right, well I will hear what you say.
PN939
MR ADDISON: If the Commission goes to the 1998 agreement - and before I get there maybe I ought to go back to the body of the 2003 agreement. The body of the 2003 agreement says at clause 6:
PN940
This agreement operates so as to incorporate all of the provisions of any certified agreement operating and applicable immediately prior to the certification of this agreement. Nothing in this agreement shall diminish the terms and conditions of employment applicable in that agreement.
PN941
The attachment to the 1998 agreement is headed: Retrenchment Agreement between Natra Pty Limited and the AMWU. It is expressed as a separate agreement because the opening, the preamble, if you like, to this agreement says:
PN942
This agreement will apply to all employees at the normal Parkside with the exception of monthly staff with regards to the benefits applicable to those who may be retrenched. This agreement will operate in line with Natra Pty Limited 1998 Enterprise Agreement.
PN943
So it is expressed to be a separate agreement. Now, that preamble does not exist in the 2003 agreement, Commissioner. However, we say by force of clause 6 of the principal enterprise agreement, it would apply as a separate agreement. We also say the historical proposition supports such an approach by the Commission and one can only presume that it has been an oversight in terms of not putting that preamble in place. The rest of the agreement is in virtually identical terms.
PN944
I think there was some evidence from one of the company's witnesses that there had been some changes. The then existing Plant Manager in 2000 had said there had been some minor changes but they were minor changes in terms of the agreement in 2000. So we say it is a separate agreement and that for the purposes of this agreement then there is only one rate of pay. There is not two. There is only one because in clause 11 it is very very very clear that the pay rates in relation to all aspects of the agreement will be the rate used for the calculation of overtime. That is the weekly rate divided by 38.
PN945
The accruals are not affected, in our submission. In our submission, the accruals are a matter of fact. They are well-known. The parties have accepted by their conduct over at least 15 years the fact that the accruals operate based off a 40 hour week but the parties also accept by the express terms of the redundancy agreement that those accruals will be paid out at the weekly rate divided by 38. So we say yes, there is an ambiguity between the two agreements. Yes, there is a possibility of reading the clauses in two different ways but on a straightforward approach to the construction of the redundancy agreement there can only be one conclusion.
PN946
Now, Commissioner, Commissioner Whelan made a decision a little while ago - and I really apologise for not having copies of these for you - but the decision is PR938450 and it is Maintenance Resource Engineering v AMWU, I guess. Now, Commissioner Whelan said at paragraph 13 of her agreement:
PN947
It is accepted practice that words used in an industrial instrument should not be interpreted in a strict technical fashion.
PN948
She then cites the Public Transport Corporation of Victoria v The Australian Rail Travel and Bus Unions:
PN949
The meaning of particular words should be read in the context of the industrial instrument as a whole.
PN950
She quotes VOW v Abbey, which is a CAB (1939) 40 494. She then goes on to say:
PN951
That context may extend beyond the particular document.
PN952
She refers to Burchett J and his comments in ..... v McHughs (1993) 40 LCR 511 where effectively the Court said you need to look at the factual matrix. Now, I think that is supported generally by the authorities with regard to section 170MD(6) in any event, but one needs to look not just in a narrow sense but at the whole factual matrix.
PN953
We say that the factual matrix in this particular instance is that you have a number of employees who understand clearly what their entitlements are. You have a certified agreement which puts a regime in place relative to those entitlements and the entitlements are, for the sake of the argument, on a full annual accrual of annual leave, 160 hours and the certified agreement regime with regard to that is that 160 hours is paid out at a rate which is the weekly rate divided by 38.
PN954
In our submission, nothing could be plainer in terms of the real meaning and real intent behind the certified agreement. Now, not only has that regime been in place in this agreement, it has also been in place in at least three agreements prior to this agreement. It is a matter that has been clear and plain to the employees through all of that period of time. If the evidence of Mr Daley is correct and the evidence that has been put forward in N5 is correct, then arguably the company has been in breach of its agreement for the last few years.
PN955
Indeed, we would submit, that the outsourced company that the payroll was sent to has come to the only logical conclusion in terms of the documents that were sent to it. The outsourced company had sent to it, according to Mr Daley's evidence, the certified enterprise agreement and the certified redundancy agreement. The outsourced entity obviously read those two documents and came to an interpretation. We say the only logical interpretation when you read both documents and if you read them properly, in our submission, the view that the outsourced entity came to was indeed the correct view because no other logical view comes to mind.
PN956
Now, we say that the agreement can properly be varied to reflect the true meaning of the agreement and to resolve the ambiguity in the agreement by inserting Mr Hull's table only with different calculations. The AMWU says that our interpretation is correct and the Commission should find that way. The AMWU is able to put a draft order together with what we say is the correct calculations. Unfortunately I can't give you that today, Commissioner, but we say that our interpretation is the only correct one, if the Commission pleases.
PN957
THE COMMISSIONER: Why do you not refer then to the evidence that was given on the employees' behalf about agreement being reached in 2000 as to the calculation accrual rate?
PN958
MR ADDISON: Well, in that case yes, I am happy to go there. I am happy to go there, Commissioner. Ms Pope's evidence was not that there was a new agreement reached. Ms Pope's evidence was clear. She said that there was a reluctance to increase the redundancy agreement in 2000 on the basis that the company believed it was already a generous agreement. Ms Pope said that it was explained to her that the accrual and payment regime worked as I say it should, that the accruals were at a 40-hour rate and that the words in the certified agreement, the certified redundancy agreement, made it clear that they were paid out at the overtime rate.
PN959
THE COMMISSIONER: But that is not the case with Mr Basterfield in '99, is it?
PN960
MR ADDISON: Sorry?
PN961
THE COMMISSIONER: That is not the case with exhibit N2, Mr Basterfield.
PN962
MR ADDISON: That is correct. That is correct and as I say, Commissioner, if the evidence that has been presented in N2 and N5 and one needs to go to N5 too, Commissioner, because that is a block of documents of at least half a dozen, maybe 10 employees, where the accrual has been done in the same way as the accrual - sorry, not the accrual. I do apologise. It is not the accrual. The payment regime is - you see the accrual in N5 and the accrual in N2 are based on a 40-hour week, as I read those documents.
PN963
It is the payment. The payment is at the wrong rate. The payment is in fact contrary to the payment prescribed by the redundancy agreement because the payment of those accruals is based on a 40-hour divider, not a 38 divider. Now, the redundancy agreement is very clear. You can change the words: pay rates in relation to all aspects of this agreement will be the rate used for the calculation of overtime. The same words - to achieve the same result you could change those words to: the rates in relation to all aspects of this agreement shall be the weekly rate divided by 38; because that would produce the same result.
PN964
It is not the accrual in 2 that is the problem. It is the payment and the payment is the weekly rate divided by 40, not the weekly rate divided by 38, and that is the crux of the argument and that was the crux of the argument last week when people were in dispute. We say on the evidence - we have the evidence from Mr Daley. There are two rates. One is the weekly rate divided by 40 which is used for normal purposes. One is the weekly rate divided by 38 which is used for overtime. The words in the certified agreement, the overtime rate applies.
PN965
It doesn't deal with accruals. I will be the first to admit that. There are no words in this agreement anywhere that deal with accruals but there is a practice and the evidence reveals that practice and the practice goes back 15 years. In terms of Ms Pope's evidence, she said this morning that she was told it was generous because of certain things. She was crossed by Mr Hull with regard to the accrual. She was crossed with regard to this supposed agreement. In re-examination I asked Ms Pope: was this a new agreement; and the answer was: no, it is what has always been there.
PN966
Is that why you didn't put it in writing? Well, why didn't you put it in writing? Because it has always been the position. That is why it didn't go in writing, because it has always been there. It is apparent. Everybody knows it and it is the correct interpretation of the agreement. It must be, Commissioner, in my submission. It must be the correct interpretation of the agreement. They are my submissions unless you have any questions, Commissioner.
PN967
THE COMMISSIONER: No, thank you. Mr Hull.
PN968
MR HULL: Thank you, sir. I will be brief on this point but I don't share the conclusion just because the parties say that there is an ambiguity there necessarily is an ambiguity and therefore the Commission has jurisdiction. So I simply put on the record that I think - no, not an ambiguity. I think we are here and whilst Mr Addison has used that phrase I think the issue here is an uncertainty in the agreement and I think just simply by way of submissions and the evidence that you have heard, that there clearly is uncertainty with respect to this agreement in terms of the manner in which entitlements that are to be paid out on redundancy with respect to long service leave, sick leave and annual leave are to be calculated.
PN969
There is an uncertainty there because the agreement is silent on that matter and the consequences of the uncertainly have been clear by the industrial action that has been taken - has taken place - and the industrial dispute that has been before you. So I think as a matter of fact the Commission can rely on those fact on which to assert its jurisdiction rather than what is a convenient but perhaps a dangerous ground to do it simply on the say so of the parties.
PN970
I would also say simply by way - without going into the detail of it - but the basis on which the Commission should make a decision under 170MD(6) I think is fairly well settled. It is conveniently summarised in a decision of Senior Deputy President March in Beltana Highway Mining Proprietary Limited, if the Commission is aware of that decision or not. It reviews the authorities. I have a copy to hand up.
PN971
Again, I won't take the Commission through the particular aspects of it, but I think it is page 13, but I just need to check it. Yes, page 13 and 14 at paragraphs 23 and 24, sir. Senior Deputy President summarises the points that should be followed by the Commission in exercising, or finally deciding whether to exercise the discretion when there's an allegation of an ambiguity, or an uncertainty and then the manner in which that discretion should be exercised.
PN972
I simply say that the Commission should follow those guidelines and I don't think there's anything particularly contentious in there that should step in our way. Having said though - and the other quick point I would say by way of authority, sir, is also a decision of Commission Whelan and I have a copy to hand up if you wish. It is a 1998 decision where - it is one of the few decisions which actually deals with uncertainty as opposed to ambiguity and the simply point there is that - and I will hand it up - uncertainty is a broader concept than ambiguity.
PN973
Now, given that I am a little bit taken aback by my friend's submissions because very much he seems to be basing them on the certainty that is in the - well, what appears to be saying that there is certainty in this agreement and that we need to look no further than the certified agreement. Well, it gets him back to where I don't think he wanted to start, because you cannot argue - come here to say that the Commission should exercise this jurisdiction under 170MD(6) with respect to uncertainty, or ambiguity, as it was put and then rely on the certainty of the agreement on which to argue that. It is a self-defeating submission. I won't go down that path.
PN974
I will say, sir, that there is clearly uncertainty in the certified agreement. That uncertainty relates, as I have already indicated, to the manner, or the basis on which entitlements with respect to a pay out of annual leave, sick leave and long service leave as provided for under the redundancy provides of that agreement should be calculated. The agreement is silent, it simply does not say. Under those circumstances, what the Commission needs to do is it needs to look to see indeed, as was indicated by Mr Addison, whether there is any agreement, look to the intention of the parties, and to look to the what the intention of the parties would have been in order to resolve that uncertainty.
PN975
Now, the evidence that you have before you, sir, not one, as Mr Addison talks about, of there being two rates, there's not been two rates at all. There's been one rate, always been one rate and it is a weekly rate and there's always been one hourly regime for all the period that we are talking about, that is 38 hours a week, there's no question about that. What there has been is there has been an administrative device that has been used in order to calculate pays and entitlements. That administrative device has been to say: well, look, let's pretend it is a 40-hour week, because what has actually happened is we work 8-hour days and we work 19-hour days out of every twenty.
PN976
It is administratively simpler, more convenient to use a 40-hour deviser in order to determine entitlements that way, with the exception of overtime because that is hours worked in excess of 38 hours and a 38-hour deviser has been used, but there has always been one rate. The rate of pay is, in fact, the weekly rate. We don't have an hourly rate here, we are talking about weekly employees and we have a weekly rate.
PN977
Mr Addison seeks to rely fairly heavily on AMWU1, which is the copy of the three payslips where he focuses entirely on the right-hand side of that document where it shows the accruals and he correctly points out that - and it would be the case if we have an employee there who had been working for 1 year and had not taken any annual leave - the accrual figure there would show 160 hours but that is not all that needs to be asked, it begs a question, at what rate, at what pay, it is 160 hours by one 40th of the weekly rate, that is the accrual. That is exactly the same accrual as 152 hours by one 38th of the weekly. Exactly the same logic applies with respect sick leave, exactly the same logic applies with respect to long service leave.
PN978
We are talking about accruals that are referred to in the case of annual leave, number of weeks per years of - year of service, continuous years of service. For each year of service - sorry. Sick leave, number of days. Long service leave, number of weeks. None of those entitlements are talked about in terms of hours. Properly read, the payslips that were exhibited in AMWU1 and I'm sure they reflect the payslips that are used throughout the plant, show accruals. So the number of hours that an employee is entitled to being paid at a 40-hour rate, if you look to the rest of those payslips you will see that each one - and there was evidence on this - but it is there on the face of it, each of those payslips shows units, 40, that is the total, not 38.
PN979
So if we were to look at the - let's take the hypothetical of an employee who has worked 1 year and shows annual leave of 160 - accrued 160 hours, they have 4 weeks annual leave at 4 weeks weekly pay. If it was - we are talking about sick leave and I think the accrual is 8 days per year, but I maybe wrong, but if it is it will show, on this basis, eight four, 320 hours - 32 hours, sorry, I'm overstepping myself - 64 hours, I'll get my maths right here, 64 hours, still 8 days. The amount of payment in the event - and it does not apply in sick leave, the amount of payment of termination of ordinary termination, not of redundancy will be those accrued hours for annual leave by the unit rate.
PN980
The unit rate is the weekly divided by the number of units, 40. There is no difference. Thirty eight divided by 38 equals 140, divided by 40 equals one. It is the same thing. We are talking about an administrative means of achieving a result which is the most convenient means for this particular operation. That is something an employer is entitled to do. There's no question that they were paying the wrong rate, they haven't been paying the wrong rate. They have been paying the correct rate, that is, the weekly rate of pay. When they have been required to pay overtime they have applied that correctly as well. They have taken the weekly rate divided by 38 and multiplied by that the particular penalty involved.
PN981
The other evidence we see, we see the case of Mr - and I've forgotten his name too, Kevin Basterfield, was it, Basterfield, I think if there is anything unambiguous in it his position and the documents in five show that the entitlements with respect to the issue here, which is the entitlements for annual leave, sick leave, long service leave on redundancy are all paid out on the weekly rate. If as contended by the union that there was some sort of agreement either express, or simply by way of custom and practice that had been going on forever, as suggested by - the union delegate gave evidence, well, it wouldn't be paid out at the weekly rate, it would be paid out at 5 per cent higher than the weekly rate because that is the result that comes from using a 40-hour accrual and applying that to a rate of pay being the weekly rate divided by 38 and not 40.
PN982
So to the extent that there has been a higher rate this has occurred in the last couple of years. It has occurred since 2000. It would appear and all the evidence points to it that it has come about when Natra engaged the services of an external provider to its payroll. There is no history of custom and practice here that is anything other than an application, or a payment of these entitlements that is consistent with what you would expect on the fact of an agreement which is - or working environment which is a 38-hour week, which is what the award provides with a certified agreement, that refers back to that award and is based on a 38-hour week. That is what has happened.
PN983
Up until roughly 2002, I think, when there were retrenchments there a higher rate was paid and it was, with respect to a couple of individuals, proposed to be paid before the mistake was discovered this time around. There's been an aberration and which has led to the dispute, but that aberration certainly does not demonstrate an agreement, nothing that we have heard here today demonstrates an agreement. What we have is a highly implausible story from Ms Pope that Mr Beaty - who is one of the principals of a range of companies, of a large public company looking after a range of business - sat down and actually talked about this question, this obscure question of accumulating on a 40-hour basis, but paying out on a 38-hour basis.
PN984
That was the supposedly the reason why there was not going to be any movement on an improvement in the redundancy benefits regime because it was already generous, overly generous. I think that has to be weighed against the evidence that we have heard, otherwise in the likelihood that that would be the case. When it is - well, we can't say for certain without Mr Beaty being here whether or not what he says about that conversation, but I think we can say that it is extremely implausible that that would have happened and we have heard from Mr Alvis, that he has no recollection of it at all.
PN985
We have also heard - it is hearsay admittedly - but we have heard from Mr Parow that in his conversation - and he wasn't challenged on this - his conversation with Mr Beaty, never heard of this issue until a few days ago. This is a suggestion that a person in his position will be getting down to this level of detail when you have heard from Mr Parow that he just simply wasn't involved and had no responsibility for the industrial relations agreement at Natra.
PN986
It, I say, is just not plausible and should be disregarded by the Commission. What the Commission should take account of is the clear evidence, the documentary evidence, that the practice has been to pay out on the ordinary weekly accrual that would apply in a 38-hour week environment in workplaces across the country. Nothing special, no particular deal to provide for an extra 5 per cent. The Commission is entitled to wonder why, if there was such a deal - given its rather unusual nature - that it wasn't ever committed to writing. That it was just allowed to go on and on.
PN987
Now, where it is said: well, it has always been there, you wouldn't have to do it. Well, I find that difficult to believe given the nature of what is suggested, extremely difficult to believe. The evidence that we have heard is that during this recent dispute, it was never suggested in the negotiations, in the discussions with management that the rate was wrong because there was an agreement. What the argument has been about is, this isn't fair, you paid it last time therefore you should pay it again this time. It does not say there is an agreement either expressly reached in 2000 or affirmed by Mr Beaty in 2000. That is all we have by way of evidence that there is an agreement.
PN988
The suggestion from Ms Pope that Mr Beaty referred to it and from the shop steward there who says: well, it has always been the case. When clearly it hasn't always been the case, clearly what has always been the case that the weekly rate based on ordinary 38-hour weekly rate accrual has been the case. The Commission might wonder why the other individuals that the union says were involved in those negotiations haven't been called. We don't have a Mr Doug Gable here, we don't have Mr Nelson here to verify the story. I think the Commission is entitled to be somewhat sceptical at the absence of those witnesses.
PN989
Really, looked at on the terms of the circumstances and the Commission is entitled to take account of the circumstances in which it has been involved in the dispute that has led up to these hearings to look at that and to say: well, there has been an error made. It is an error where there is no question that the stewards and the employees of Natra have felt unfairly done by, they don't argue that, but that is what their feeling is and that feeling is sincerely held.
PN990
That is not to the point though as to whether or not that what we are here to day about and what we are here today about is, point one, is that there is uncertainty in this agreement and, two, that that uncertainty should be removed and if the Commission would like me to I can address you on the reasons why that should be the case but I think the recent disputation should be enough to persuade the Commission that there is compelling reason why the uncertainty should be removed.
PN991
The basis on which the Commission should decide what should be done to remove that uncertainty we say is to implement what clearly appears from ordinary practice and without any of these documents, you have got a 38-hour week award. The accrual is on the basis that it would be if a 38-hour week had been applied all the way through. The fact of what was said on these documents has nothing to do with it, or alternatively along the lines I have suggested in the proposed - in the application, which has been designed to simply account for the reference in clause 11, or paragraph 11 of the appendix which refers to the use of the overtime rate.
PN992
Alternatively, you can get rid of that reference and have the accruals paid as they are paid here. It is the same effect, but we say that is not necessary. If you insert the proposed variation that we have suggested and that we have asked for in our application, that will deliver the result where the accruals are the ordinary accruals that come from the award and they are also the accruals that show on this pay sheet. There would be no contradiction because where this pay sheet showed 160 hours at a 40th, that is, 4 weeks pay, or 4 weeks holidays at the weekly rate. That is what our application seeks to do, sir, no more and no less.
PN993
Finally, I think I should say, sir, to contend that there would be, or there is any basis for suggesting that it was the intention of the parties to have a provision which was for this strange little aspect of the agreement just with respect to the leave entitlements, 5 per cent increase, the Commission is entitled to be sceptical about that and entitled to be particularly sceptical that that was the intention of the parties when there is no written agreement to that effect and when it is contrary to the demonstrated practice of the employer, without any objection from the employees, up until 2002. If the Commission pleases.
PN994
THE COMMISSIONER: Thank you.
PN995
MR ADDISON: Just a couple of points, Commissioner. First of all, the enterprise agreement is the predominant instrument. At the end of the day there can be no arguments about that. The enterprise bargaining agreement overrides the award. The enterprise bargaining agreement is the most important industrial instrument in any workplace today in terms of a certified agreement. The argument only applies in redundancy.
PN996
Mr Hull has said that if a person leaves ordinarily the person would be paid out on the rate of a 40th. We agree. We agree. The accrual rate will be based on a 40-hour week and the company is entitled if a person leaves of that person's own volition to pay that person the weekly rate divided by 40, if that is the way the accruals are being done. No arguments with us. None whatsoever, because that is correct under the terms of the award.
PN997
However, the enterprise bargaining agreement overrides the award and the enterprise bargaining agreement at clause 11 very clearly says the payment aspects of this agreement will be based on the overtime rate. The severance components have been deliberately and specifically exempted in clause 9 of the agreement where the words are and in the body of the agreement, by the way, Commissioner, and the words of clause 9 reflect the words in clause 12 of the body of the agreement that they will receive an amount equivalent of four ordinary - 4 weeks ordinary pay for each completed year of service.
PN998
Now, that is different to the words in terms of clause 6, 7 and 8 which talk about accruals. They talk about the accruals spent on a person's credit. Now, we say, in terms of the uncertainty in the agreement, yes, there's an uncertainty because - and that uncertainty comes from the fact that there's no express provision in terms of how accruals are made, but we know how accruals are made. We know how they are done. It is clear how they are done.
PN999
The uncertainty can be removed by either inserting a clause that makes clear that the accruals are on a 40-hour basis to reflect the custom and practice, to reflect the agreement between the parties, an agreement that is evidenced by 15 years of use or to put the table suggested by Mr Hull - I think that is the same thing. That is how it can be resolved, Commissioner.
PN1000
We say - and my submission is not self-defeating because one has to look at the construction of the agreement. There are certainties in the agreement and there are some uncertainties and the uncertainties need to be address and we say the interpretation that we have put can be the only correct interpretation and the only correct construction of the agreement. If the Commission pleases.
PN1001
THE COMMISSIONER: I'm going to adjourn briefly and ask the parties to remain.
SHORT ADJOURNMENT [4.45pm]
RESUMED [5.14pm]
PN1002
THE COMMISSIONER: I will give a brief summary decision and I will issue a more detail one in due course and I will issue full reasons. Natra is bound by the agreement and is entitled to bring this application. Section 170MD(6) of the Act empowers the Commission to vary the agreement if it is satisfied there exists an ambiguity or uncertainty in its terms. The power of this section is to be used to remove the ambiguity or uncertainty and may not be used to rewrite an agreement to install something that was not inherent in the agreement when it was made. The uncertainty arises, in my view, because clause 11 of appendix 1 of the agreement is silent as to the accrual rate and requires referral to the Metals Award and this is compounded by a past practice of calculation on behalf of Natra is manifest in the industrial action which has occurred.
PN1003
The terms as expressed in the variation sought by Natra are consistent in my view with a reading of the clause in conjunction with the relevant underpinning Metals Award. However, for the reasons expressed above and my knowledge of the position of the employees expressed during conferences I find that an uncertainty exists. I am satisfied that had the parties intended another form of calculation at the time of agreement in 2000 or employees at the time believed that such was the case clause 11 would have precisely expressed such alternative accrual rate. I am confident that had the agreement been expressed in the form now sought in this application it would have been supported by a valid majority and no uncertainty would have arisen.
PN1004
The industrial action and the uncertainty arises in response to the change from past practice the change occurred due to outsourcing of the payroll and an incorrect calculation by Option Services. I am satisfied that the variation should be approved to make the entitlement clear and to remove the potential for further industrial action, although I note in the statements in conference on behalf of Natra that further redundancies within the terms of the current agreement are not planned at this time. The order shall come into force from the beginning of the first pay period commencing on or after tomorrow, 28 May, and shall remain in force for the term of the operation of the agreement. This matter is adjourned.
ADJOURNED INDEFINITELY [5.17pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
LINDA POPE, AFFIRMED PN33
EXAMINATION-IN-CHIEF BY MR ADDISON PN33
CROSS-EXAMINATION BY MR HULL PN91
EXHIBIT #N1 BUNDLE OF DOCUMENTS PN127
RE-EXAMINATION BY MR ADDISON PN159
WITNESS WITHDREW PN168
GARY DJALIKIAN, SWORN PN169
EXAMINATION-IN-CHIEF BY MR ADDISON PN169
EXHIBIT #AMWU1 PAYSLIPS OF GARY DJALIKIAN PN180
CROSS-EXAMINATION BY MR HULL PN260
EXHIBIT #N2 PAY SHEET PN334
RE-EXAMINATION BY MR ADDISON PN467
FURTHER CROSS-EXAMINATION BY MR HULL PN482
WITNESS WITHDREW PN495
DENVER WILLUM SHERLOCK ALVIS, SWORN PN509
EXAMINATION-IN-CHIEF BY MR HULL PN509
EXHIBIT #N3 STATEMENT OF DENVER ALVIS PN515
CROSS-EXAMINATION BY MR ADDISON PN519
RE-EXAMINATION BY MR HULL PN656
WITNESS WITHDREW PN675
ROBERT CHARLES DALEY, SWORN PN677
EXAMINATION-IN-CHIEF BY MR HULL PN677
EXHIBIT #N4 STATEMENT OF MR DALEY INCLUDING ATTACHMENTS PN680
CROSS-EXAMINATION BY MR ADDISON PN727
EXHIBIT #N5 COLLECTION OF PAYS PN810
WITNESS WITHDREW PN815
MARK STEVEN PAROW, SWORN PN817
EXAMINATION-IN-CHIEF BY MR HULL PN817
CROSS-EXAMINATION BY MR ADDISON PN861
WITNESS WITHDREW PN896
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