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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
(Administrator Appointed)
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N 7938
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER BLAIR
C2004/4031
C2004/4254
C2004/4255
INSULATION SOLUTIONS PTY LTD
and
THE AUSTRALIAN WORKERS UNION
Notification pursuant to section 99 of the Act
of a dispute re alleged failure to comply with
EBA obligations regarding implementation of a
seven-day shift roster
THE AUSTRALIAN WORKERS UNION
and
INSULATIONS SOLUTIONS PTY LTD
Application under section 170LW of the Act
for settlement of dispute re breach of clauses
APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION
Application under section 127(2) of the Act
by the Australian Workers Union for an order
to stop or prevent industrial action concerning
Insulation Solutions
MELBOURNE
9.44 AM, THURSDAY, 22 JULY 2004
Continued from 2.7.04
PN143
MR C. O'GRADY: I seek leave to appear as counsel on behalf of Insulation Solutions.
PN144
MR C. PHILLIPS: I now appear for the AWU. With me, Commissioner, will be MR M. BOROWICK and MR GNATZ also.
PN145
THE COMMISSIONER: Thank you. Do you have any objections, Mr Phillips, to Mr O'Grady seeking leave?
PN146
MR PHILLIPS: Commissioner, I think the AWU does oppose leave being sought by counsel in respect of this matter. We don't see why counsel is now being introduced into a matter that has been long-running to this point, and we would oppose this.
PN147
THE COMMISSIONER: Okay. Thank you. Mr O'Grady.
PN148
MR O'GRADY: Commissioner, you currently have before you two discrete matters. There is the section 99 notification and there is a section 170LW application that has been sought by the union. It is our position, Commissioner, that the issues raised in the LW application in effect subsume the question that was posed by the Commission in the section 99 notification, but that may or may not be accepted by the other side. The section 99 notification, Commissioner, involves serious questions as to the Commission's jurisdiction in respect of the ability to make an award governing the EBA.
PN149
There are less complicated in that regard regarding the 170LW application, but that application, and if one looks at the way in which it is couched, concerns the EBA and whether or not a number of provisions have been breached. In my submission, Commissioner, it is going to turn very much on the question of construction of the EB as to whether or not those clauses have been breached, and even if they have been breached there are questions as to the Commission's power under section 170LW to make orders of the type that we envisage the union would seek made in this case. In my submission, those factors in themselves raise questions of a nature that would warrant counsel being granted leave in this proceeding.
PN150
The Commission of course is aware that my client has been legally represented for some time, and indeed, prior to the directions being made by the Commission on 19 July - sorry, on 2 July - the Commission was aware that my client had sought to be legally represented, and of course correspondence has flowed from my client's solicitors since that time. I should note that there has been no suggestion by the union that leave would be opposed prior to this date, so we have come here today to deal with some quite complicated issues that are, it would appear, all interrelated. In my submission, it is an appropriate case for leave to be granted. If the Commission pleases.
PN151
THE COMMISSIONER: Thanks, Mr O'Grady. Yes, Mr Phillips.
PN152
MR PHILLIPS: Commissioner, it is the view of the AWU that counsel should not be required on behalf of the company with regard to this matter. We say it based upon a number of points. Firstly, the issue of leave has never been granted in respect of legal counsel in the past proceedings, as I understand it. I am instructed also that the AWU has opposed representation, but that question was never dealt with as the matter was more conveniently put through conciliation.
PN153
FIRE DRILL WARNING
PN154
THE COMMISSIONER: We got forewarned that that would occur. It was supposed to be a surprise, and I thought it was going to occur at about 9.30, so I stayed a little bit longer for coffee, and it didn't occur. Now, it is going to occur. I am not quite sure for how long it is supposed to last. We thought the noise that goes on with all the whooping noise and all the rest of the thing, so I doubt very much we will be able to continue because of the noise that will come through on transcript, it won't be possible to continue. So when it does happen I think we may need to adjourn and evacuate.
PN155
Hopefully, it won't be for too long, though. But if we are - we will sit for the rest of the afternoon in order to finish the matter, anyway, so what we lose at the beginning we will pick up at the end if that is okay with the parties. Okay? Sorry, Mr Phillips. I can't guarantee that you won't be interrupted again though, I am afraid, by the Chief, whoever that is.
PN156
MR PHILLIPS: We will still be surprised, we suggest. Commissioner, it is our view that the AWU would be seeking as part of its application under 170LW that the company maintain the status quo, and the orders that we would be seeking would be in that context. With regard to the actual issue concerning jurisdiction, we see that there is pretty clear case law put down about matters pertaining to a dispute and the application of the agreement and the Commission's ability. Those are arguments which we think are fairly clear and not complicated.
PN157
We see no reason for counsel to be involved, and that the company is a member of an industrial organisation and could have had representation from that organisation, as we understand it. They have chosen to get legal counsel, and I think I would leave my position at that at for the moment, if it please the Commission.
PN158
THE COMMISSIONER: Right. I think the issue of Ms Russell seeking leave was in the first instance put on hold, and the parties went into conference. We were unable to resolve it and when we came back on 28 June again Ms Russell sought leave, and the Commission was under the impression it had granted it, but it didn't. And I don't think I did the last time. Well, I will grant leave in this instance simply in order to progress the matter. I think we need to move forward. Mr O'Grady.
PN159
MR O'GRADY: Yes, Commissioner. Pursuant to the directions that the Commission made last time this matter was before you, my client has filed an outline of submissions and an outline of evidence from Mr Mick Knowles. Does the Commission have that?
PN160
THE COMMISSIONER: Yes, I do. Thank you.
PN161
MR O'GRADY: Commissioner, one thing that we omitted to include that we should have done, was a copy of the current EB.
PN162
THE COMMISSIONER: Right.
PN163
MR O'GRADY: I understand that a copy of that was appended to some of the union material, but obviously we would seek to place a copy of the current EB before the Commission.
PN164
THE COMMISSIONER: Right.
PN165
MR O'GRADY: And the other thing we haven't put before the Commission is a copy of the roster. Now, I understand the Commission is aware from the conciliation proceedings as to the nature of the roster, but it might be of assistance if I handed up a copy of both of those documents to the Commission.
PN166
THE COMMISSIONER: Okay. Thank you.
PN167
MR O'GRADY: And I have provided a copy to my friend. Commissioner, we - - -
PN168
MR PHILLIPS: Commissioner, if I may - - -
PN169
FIRE DRILL WARNING
PN170
THE COMMISSIONER: Sorry, Mr Phillips. I generally have a view that if there is a fire coming up, it reaches level 33, it then jumps and goes to level 43, because 33 to 42 is the Commission, and we are protected by law, so - but obviously not in this instance. Sorry.
PN171
MR PHILLIPS: Commissioner, the union does not object to those documents being put to you. We only seek leave, if I can come back to it, Commissioner, we are seeking the status of the actual rosters and if that is the current proposal or not. As I understand there is a number of different variations, and we want to ensure that the roster that is being put is the roster that is proposed to operate from I think 1 August.
PN172
THE COMMISSIONER: Right.
PN173
MR PHILLIPS: We think it is useful these documents are put as the AWU will be putting other documents we think are useful as well.
PN174
THE COMMISSIONER: Okay.
PN175
MR O'GRADY: My understanding, Commissioner, is that that is the current proposal.
PN176
THE COMMISSIONER: Right.
PN177
MR O'GRADY: Obviously, the questions that have been posed by the union's 170LW application and indeed by the Commission in the 99 dispute notification are not confined to a particular roster as such. The issue is broadly about mainly the move to a six-day a week operation, but I thought it would be in everybody's interests if you saw what the current proposal was.
PN178
THE COMMISSIONER: Right.
PN179
MR O'GRADY: Commissioner, we have also received from the union a witness statement of a Mr Terry Gnatz. I believe Mr Gnatz has been misspelt, but it is spelled N-a-t-t in the witness statement outline, a witness statement of Mr Borowick, and subsequent to that we received an outline of submissions from the union - Commissioner - - -
PN180
THE COMMISSIONER: Well, I must say that is something I didn't receive.
PN181
MR O'GRADY: It came later, on 19 July is the date, according to the fax transmission sheet that I have got, Commissioner, and that is contrasted to 15 July, which is the date when we got the witness statement.
PN182
THE COMMISSIONER: I didn't get an outline of submissions from the union. I have got the two witness statements, but I didn't get the outline. Have you got a spare copy, Mr Phillips?
PN183
MR PHILLIPS: Commissioner, if I may, I apologise with respect to that. I have received instructions that I had - sorry, that the union had served you with copies. I do have a spare copy which I can present to you.
PN184
THE COMMISSIONER: Thank you.
PN185
MR PHILLIPS: Once again, the union does apologise.
PN186
MR O'GRADY: Commissioner, if it assists - - -
PN187
THE COMMISSIONER: Thank you.
PN188
MR O'GRADY: Commissioner, in the light of the evidence that has been filed by the union there was only the one issue that we felt the need to cross-examine on, and that was the assertion in paragraph 7 of Mr Borowick's statement that the company is seeking to introduce a roster of 36 ordinary hours per week over six days. Now, that is disputed, Commissioner, and indeed, the roster that I have handed up to the Commission shows that that is not the case. The proposal as we have already understood and as we understood the union understood it is for a roster of 35 ordinary hours per week over six days, but there would be one hour of overtime paid at overtime rates.
PN189
Now, that roster is a two-week roster, Commissioner, and there are more hours worked in one week than in the other, but that is the position from the company's point of view. But given that that is dealt with through the roster that is before you - - -
PN190
FIRE DRILL WARNING
PN191
MR O'GRADY: So, Commissioner, in light of the fact that the roster before you, and Mr Borowick might maintain it is a 36-hour - 36 ordinary hour roster, that that isn't consistent with the roster, we don't feel that there is any need to cross-examine either of the witnesses that the union have put in statements for. That is not to say, of course, Commissioner, that we accept a number of the assertions that appear in those statements. In particular, we don't accept the assertion made in paragraph 11 of Mr Borowick's statement that employees would be significantly disadvantaged by a move to this means of operation, but in my submission, given the nature of the proceedings before you, that issue is not an issue that you have to determine.
PN192
THE COMMISSIONER: We have got a good day, haven't we? Keep going.
PN193
MR O'GRADY: In the context of this application. I should also say, Commissioner, that the statements filed by the union do not appear to take issue with the matters that Mr Knowles has adverted to in his witness statement. So, Commissioner, our position is that the evidence is really in. If you require Mr Knowles to be sworn to adopt his statement that can be done, and of course the union are of course entitled to cross-examine Mr Knowles. I have indicated I don't see the need to cross-examine the witnesses that have been called by the union at this stage. There is, of course, an issue of ordering in these matters, Commissioner.
PN194
I know that I have been on my feet, but perhaps the better view might be that the section 99 notification has in effect been subsumed by the 170LW application, and it is certainly our position that in the course of things it is really the union have got the carriage of the matter before you. They are the ones who are seeking to get an order from you that stops us moving to this roster at the end of the month. If the Commission pleases.
PN195
THE COMMISSIONER: Thanks, Mr O'Grady. Mr Phillips.
PN196
MR PHILLIPS: Thank you, Commissioner. Commissioner, as the AWU understands we have three matters before you; one pertaining to a section 99 filed by the company, a section 127 filed by the AWU and a section 170LW filed by the AWU concerning this matter. I must point out at the outset that we are not pressing today for the 127 matter to continue, and that the focus is on the 170LW matter, and that the AWU is seeking in effect the status quo of the current shift rosters to be maintained in the context of this dispute concerning the application of the agreement, and in particular.
PN197
THE COMMISSIONER: We will adjourn for about 10 minutes, okay?
SHORT ADJOURNMENT [10.01am]
RESUMED [11.00am]
PN198
THE COMMISSIONER: Now, hopefully there will be no further interruptions. Mr Phillips, I think you were halfway through taking a breath or saying something.
PN199
MR PHILLIPS: I have done my stairmaster exercise, Commissioner. I am not sure what comes next, but hopefully I will be up to it. I think our position so far is we were going through what is currently before you, and where we see matters.
PN200
THE COMMISSIONER: Yes.
PN201
MR PHILLIPS: Counsel for the company has put the proposition that he believes the AWU should proceed with its case. I haven't heard any submissions from the company that they are withdrawing the section 99, and that continues, although I understand the position put about it being subsumed as a result of the AWUs application. We would see it relevant that the company proceed with submissions and their evidence. The AWU does intend to cross-examine Mr Knowles, and for the sake of consistency which has gone through this matter, we would suggest that the company should continue on with its submissions. If I leave it at that at the moment.
PN202
THE COMMISSIONER: Thank you. Mr O'Grady.
PN203
MR O'GRADY: Commissioner, the only thing I would say in response to that is that whereas we tried to set out in some detail what was our response to both the question posed by the Commission and also the 170LW application which had been foreshadowed by the union, the outline of submissions that has been provided by the union is skeletal, if I can put it in neutral, and I would obviously be concerned that they are not in any way, shape or form taken by surprise, but ultimately the order of these things is for the Commission.
PN204
It does seem to me that the point I made earlier about the 99 being subsumed by the 170LW application is well made in that the question that the Commission posed on the section 99 application which we have reproduced in paragraph 1 of our outline was, does the company have the ability under an existing EBA to implement the shifts that it desires to have, and if one then turns to the 170LW application that the union filed on 2 July, it is said that the matter in dispute relates to a breach of clauses 10, 17, 18 and 41 of the enterprise agreement, and marries that with what appears in the union's outline which seems to suggest that the alleged breaches of the EBA are the reason why the company cannot proceed with its roster, it does seem that there is a complete overlap between the two proceedings.
PN205
The union have invoked the Commission's jurisdiction under 170LW, they haven't really fully told us why they say we are in breach, and in my submission it would be appropriate for the union to go first, but as I said, Commissioner, we are in the Commission's hands.
PN206
THE COMMISSIONER: Right. Well, I think the submission of Mr O'Grady is correct. The 170LW subsumes the section 99, and it is the basis that the Commission is proceeding on today, and that is the 170LW application, not the section 99 application. So, Mr Phillips, I think it falls on the union to demonstrate where they say that the company is in breach of the alleged clauses, sorry, is allegedly in breach of the clauses. Otherwise, I think Mr O'Grady would be somewhat shadow-boxing if he didn't understand the basis on which those claims are made. So, if you could proceed.
PN207
MR PHILLIPS: Understandable, Commissioner. That is fine. If I can proceed then with the position put to the AWU, we would simply put some opening submissions concerning where we say jurisdiction is invoked and that you have the power that the parties have provided to you through its disputes procedure in our view to answer the question that has been posed with respect to it. Of course, the AWU says that the answer to that question is in the negative and that this company is proposing to implement a roster which we say is in dispute as a result of the terms of the certified agreement which I don't think has actually been marked, Commissioner, but - - -
PN208
THE COMMISSIONER: No, it hasn't.
PN209
MR PHILLIPS: - - - was provided by the company's counsel, and it is titled: Insulation Solutions 7th Enterprise Based Agreement, 2002 to 2004.
PN210
PN211
MR PHILLIPS: Commissioner, it is the intention of the AWU to put further documents to the Commission about some of the provisions, as we think it is important that the Commission understands the intentions and the history of some of these clauses that have developed and that we say have caused this roster to be in dispute as a result of those clauses over time being implemented. Specifically, the AWU puts that the roster as proposing IS1 is in dispute as a result of the application of particular provisions. And we say that the company has to take into account when developing a new roster clause 17, rostered days off.
[11.06am]
PN212
THE COMMISSIONER: Yes.
PN213
MR PHILLIPS: In particular, a roster that is developed by a company and doesn't take that into account, in our view, would fall foul with respect to its operation because there is currently fixed rosters set down on a fortnightly basis and can only be altered, firstly by the company as I think outlined in subparagraph (a), consulting with the affected employees; and then going on to reaching an agreement with the majority of those employees. And on that occasion the date can only be altered.
PN214
So firstly they have to consult and go through that process. Secondly, they have to reach agreement with the majority of employees that are affected by a proposal from the company. Then thirdly, in our view, that rostered day off that is fixed can only be altered. It can't be extinguished. It can't be denied to the employee.
PN215
There is an amendment to that though which resulted in, if I can call it, the seventh EBA or, as you have marked it IS2, which resulted in the negotiations of this agreement. And it is important the AWUs view is that that amendment occurred from the previous agreement as a result of some restrictions that the company posed to the union. And so an amendment was made to the next EBA, and I will go through that through Mr Borowick's evidence.
PN216
Secondly, we say, Commissioner, that under clause 18 of IS2 there are a number of points that we think are important to consider, or the company should consider when they are developing a new roster. We don't oppose the company implementing a roster per se but what we say is that the company has to conform with what it has agreed to in a certified agreement. Firstly, there is the obvious point at subparagraph (a) where there is a potential that can be achieved, and it says:
PN217
Insulation Solutions has the potential to be a seven day a week operation ...(reads)... ensures security of employment for our members.
PN218
It goes on to talk about obviously having the agenda of ensuring that there is flexibility for those operations as well. But the AWU also puts:
PN219
In considering this clause, there is also security to the employees about how their work is derived ...(reads)... apart from their working life, their family life is secure.
PN220
And what we say is clearly set out in paragraph (c) is that it is a 35 hour week, and it is per week. It is not an average situation which is different to what is proposed in IS1 which is an averaging process. And, secondly, the second sentence of subparagraph (c) says that:
PN221
In the event of a move to a seven day a week operation these hours would normally be worked on any five days in a seven day period.
PN222
From our perspective, that is fairly clear I think to remove an aspect which we think the company might put to the Commission. The proposal being put is for a six day operation, not a seven and not the current five. As we understand it, IS1 provides for a six day roster process. As I am advised and I will go through with Mr Gnatz, that is the first time such a roster process has ever been implemented on this site. There has been a seven day operation, as Mr Knowles has put into evidence and we do not contest that. And this clause talks about the opportunity to bring in a seven day operation, but in the context of a 35 hour week.
PN223
Another point the AWU raises with respect to the dispute and how this agreement is applied is the aspect of employment of new employees. The AWU is positive about this employer employing potentially 22 new employees for further shift or for further production to meet Australian demands. What we say though, Commissioner, is that currently we believe there is only one form of employment that should be used with respect to employing new employees. And our point is made in clause 10 of the agreement and specifically - I think that is on page 4 of IS2.
PN224
It is our view that subsection (a) clearly outlines the intention of the parties with respect to employment. And that both the company and the union confirm their commitment to full time permanent employment on an ongoing basis. There are some anomalies, or there are some flexibilities that this company does have to meet. Issues with regard to labour when there is annual leave, long service leave or sick leave, and they are particularly outlined at subparagraphs (d), (e), (f) and (g). What we say at (d) is that there is a general acknowledgment that temporary employees can be used. However, that is refined as you go through the agreement. And there are restrictions about how those employees can be employed.
PN225
Specifically we say that temporary employees should only be used as outlined in subparagraph (g), and that is to cover absences as a result of Workers Compensation, long service leave, annual leave and sick leave. And it says:
PN226
They may be engaged for a minimum period of one week.
PN227
What we understand is that the company has employed new employees as temporary employees but do not fill those requirements, and that these new employees should be permanent employees employed by the company.
PN228
You will see, Commissioner, at subsection (i) - sorry, if I take that back. At subsection (h) and (i) there are further restrictions about the employment avenues that this company has with respect to employing people. Subsection (h) deals with their pay and how much remuneration these employees should receive. And subsection (i) restricts any other forms of employment apart from permanent employment and temporary employment for the purposes outlined in subsection (g).
PN229
These are primary points that the AWU puts to the Commission; that the application of this agreement and the development of the rosters that the company has posed in IS1 cause a dispute and provide for this Commission to arbitrate this matter we say in the negative to the question being put. As the parties in section - in clause 41 of the agreement provide - sorry, Commissioner, I am working off a different document than the one I was - I think it is the fourth last page of the document you have in front of you. Specifically it provides in a paragraph below step 4, and it outlines:
PN230
If the parties agree on a solution, a timeframe for implementation is to be agreed. If the matter remains unresolved -
PN231
the matter being the roster -
PN232
it will be referred by either party to the Australian Industrial Relations Commission for conciliation and/or arbitration.
PN233
Now, we say specifically that to characterise this dispute is about the application of the clauses previously outlined. The matter is the roster that is being put by the company in IS1, and we can refer the Commission to a case otherwise known as Big W, for lack of a shorter term, which is a Full Bench decision of this Commission of Senior Deputy Presidents Watson and Kaufman, and Commissioner Foggo, in Melbourne on 12 November 2002. What we would specifically put to you, Commissioner, is that paragraph 20 is clear about what should be considered. And what we say is that - or paragraph 20 says:
PN234
Where it is asked to deal with a matter -
PN235
being the Industrial Relations Commission -
PN236
arising under the disputes settling procedure in an agreement, to ascertain the character of the dispute ...(reads)... in order to determine whether the matter is a dispute over the application.
PN237
What we say provides the Commission with the jurisdiction to arbitrate this matter is that the matter is a dispute concerning the application of three provisions of the certified agreement relating to a roster being proposed by the company. I think paragraph 23 goes on further to assist the Commission, and what it says is:
PN238
What comprises a dispute over the application of the agreement should not be narrowly construed ...(reads)... the harmonious working relationship of the parties during the operation of the agreement.
PN239
The realistic proposition put to you today, Commissioner, is this is the first time, as we understand it, that a matter such as this has been brought to the Commission that has been in dispute. We find it within the realms as put by this Full Bench that the roster is the issue that is in dispute as a result of the application of three provisions of this certified agreement.
PN240
So we believe that you have the jurisdiction to hear the matter and to arbitrate. We believe that in the submissions initially put that that answer should be in the negative. However, I think it is relevant that we put some more meat on that, if you like, Commissioner, and if I can put Mr Gnatz into the box to be able to raise some issues with him concerning not only the history of the agreements that apply to Insulation Solutions but also the intention of the parties when those clauses were negotiated. I also have to fix up some spelling errors on that.
PN241
THE COMMISSIONER: I was aware that there would be, or there may be an argument, sorry, in terms of some jurisdictional matters. As I understand it when the Commission defined what it believes is the question, those jurisdictional arguments had fundamentally gone away. I am not aware, unless Mr O'Grady wants to tell me differently that there is an objection or there is an issue regarding the Commission being able to determine this matter.
PN242
MR O'GRADY: No, there is not. Now that - and I am grateful to my friend for explaining what he says are the - what is the essence of the LW application, and my client does not say that the Commission does not have jurisdiction under section 170LW to determine the issues that were identified by my friend a moment ago, namely whether the implementation of the roster would involve or entail a breach of the provisions that he has identified. As I indicated earlier, Commissioner, it was unclear earlier exactly how the union was putting its case but, in the light of that clarification, we don't say the Commission doesn't have jurisdiction to determine these issues pursuant to section 170LW. If the Commission pleases.
PN243
THE COMMISSIONER: All right. Thanks, Mr O'Grady. Mr Phillips.
PN244
MR PHILLIPS: Thank you. Commissioner, if I may, I might call Mr Gnatz, if it please.
PN245
THE COMMISSIONER: Thank you.
PN246
MR O'GRADY: Commissioner, before Mr Gnatz gives his evidence, my friend flagged that there might be an attempt to supplement the material that has been filed by Mr Gnatz in the witness box. It is my position that that shouldn't happen. I am happy to deal with that as the questions arise, or I am happy to deal with it in general now. I am in the Commission's hands.
PN247
THE COMMISSIONER: Well, let us just see what comes of it. I mean, ultimately if the Commission considers it is of some value and, despite the fact that the company may raise some objections, if the Commission thinks it is of some value then it - without understanding what it is at this stage, it will probably allow it in. I mean, I have got to say matter has been going on for some time and there has been a lot of effort by the company and the union and the delegates to try and resolve this issue. And given that the question before the Commission is a reasonably simple question, I really don't want to get bogged down in technical, legal, procedural arguments.
PN248
MR O'GRADY: I don't want to bog the Commission down in those either. My concern, Commissioner, is very simply stated. There were directions made. The union didn't comply with them but put material in after it had a chance to see our material. We haven't been provided with any supplementary material and I have obviously got to protect my client's interest in that regard. I don't know what Mr Gnatz is going to say but, in my submission, the programming that the Commission set was to enable both sides to know exactly what case they had to meet when they came here today. And the union has had plenty of time to do that, and it hasn't. And that is what I am worried about but I am in the Commission's hands.
PN249
THE COMMISSIONER: Mr O'Grady, let me assure you by appearing before the Commission that goodwill and justice and peace to all people will prevail.
PN250
MR O'GRADY: Thank you, Commissioner.
PN251
PN252
THE COMMISSIONER: Yes, Mr Phillips.
PN253
MR PHILLIPS: Mr Gnatz, have you prepared a statement for the purpose of today's proceedings?---Yes.
PN254
Do you have a copy of that statement in front of you?---Yes, I do.
PN255
Mr Gnatz, the statement in front of you, do you have any amendments that you require to put to that statement? And, firstly, if I can apologise on behalf of the AWU concerning Mr Gnatz' last name. There is an amendment that is required in the spelling of Mr Gnatz is G-n-a-t-z. Mr Gnatz, in providing this witness statement, are there any further corrections that you believe are necessary to that statement to be made?---Yes, there needs to be a correction made to appendix 6 where it says:
PN256
The key issues in the last round of negotiations were wage outcomes, de-manning, ..... and implementation of a process of a material work group were changes to...
PN257
and in the fifth enterprise agreement, not the current enterprise agreement as shown.
PN258
What do you say were the main issues in the last enterprise agreement, being the seventh agreement?---The main ones were obviously wages outcome and the flexibility clause.
PN259
Apart from that amendment to point number 6 of your statement, is that a true reflection of what you provide to this Commission as - by your statement?---Yes.
**** TERRENCE MICHAEL GNATZ XN MR PHILLIPS
PN260
There are no other amendments that you seek to make to that statement?---No.
PN261
Thank you, Mr Gnatz. Mr Gnatz, at point 3 you state that you have been a shop steward for approximately four years, and at point 1 you say you have been employed by Insulation Services for approximately six years?---Correct.
PN262
Could you describe to the Commission what your position involves at Insulation Solutions as an employee, then as a shop steward?---Yes, I am currently employed as a machine operator. I am the senior site delegate on the site. Previous to that I was deputy shop steward, and previous to that was shift shop steward.
PN263
THE COMMISSIONER: Sorry, just in regards to background, Mr Gnatz, your statement, should it not be changed to clause 1 that says Insulation Solutions rather than Services?---Can you repeat that, please?
PN264
It has got Insulation Services; should that not be Insulation Solutions?---Yes, it should be. Yes, sorry.
PN265
Yes, okay. Thanks, Mr Phillips. Sorry, I just thought I would do that as a matter of completeness, that is all.
PN266
MR PHILLIPS: Thank you, Commissioner.
PN267
With respect to your role as senior shop steward, can you describe your involvement in the negotiations of the agreements you have been involved in?---I have been involved in the negotiations as representatives of the employees, as Insulation Solutions. Yes.
PN268
How would you describe the negotiations that occur?---Painstaking.
**** TERRENCE MICHAEL GNATZ XN MR PHILLIPS
PN269
Are they developed on - how would you describe the issues that are raised between the parties; how are they resolved?---Through continued negotiations, and at times with help from the Commission. Yes.
PN270
In the negotiations for the last agreement, how do you see that was different with regard to EBA6?---The difference was EBA6 was - the main issue I think was the handing over of - the removal of the product from the end of the line to the warehouse, and EBA7 being the flexibility clause.
PN271
Do you recall what clause that was specifically, the flexibility clause: would you like a copy of the certified agreement?---Yes, please, yes.
PN272
MR O'GRADY: If it assists, Commissioner, I think we have got a spare copy.
PN273
THE COMMISSIONER: Okay. Thanks, Mr O'Grady.
PN274
MR PHILLIPS: Thank you very much?---Clause 21, implementation of workplace efficiency.
PN275
How was that clause resolved between the parties?---With the Commissioner's assistance.
PN276
And how did you, as a shop steward, feel about that clause being part of the agreement?---We were not happy about it. There were other words we tried to change with help from the Commission. We were here late at night that night; actually I believe till about 9 o'clock at night. However, we had done the best we could. At the end of the day we weren't really happy with it but the EBA had been going on and on and on and on and on, and I think not only myself, I was a bit tired of it, I think most of the employees on site were a bit tired of it. So we I suppose bowed down and agreed to it.
**** TERRENCE MICHAEL GNATZ XN MR PHILLIPS
PN277
In the context of the overall agreement, how did you feel about the agreement over all?---I was quite happy with the agreement. However, unfortunately later on what we believed we agreed to was a little bit different from the company's point of view in that the EBA and the flexibility clause meant anything and everything.
PN278
THE COMMISSIONER: I didn't help the parties negotiate this agreement, did I?---No, it was Commissioner Cribb.
PN279
That is right, good.
PN280
MR PHILLIPS: I am unaware.
PN281
THE COMMISSIONER: Keep going, keep going.
PN282
MR PHILLIPS: With regard to the dispute that is currently before this Commission, what do you say, in your view as a shop steward, are the issues concerning the issue of the new roster as a result of the certified agreement?---The issues I suppose are - family life is the biggest one, in regards to giving up a vast majority of your weekends throughout the year and has the potential to continue for years and years. And in the proposed changes to the RDO which we are quite happy with the current arrangements. And we see some problems with some other clauses in the EBA, as you are probably aware of, which is clause 10, employment clause, which I have had various arguments with the company over this clause before. They perceive the clause a little bit different to what we do but upon reaching agreement on that clause we had an understanding I believe. However, the company changed their position throughout the EBA which is shown - - -
PN283
What was your understanding?---My understanding was - - -
**** TERRENCE MICHAEL GNATZ XN MR PHILLIPS
PN284
Clause 10?--- - - - was that it was specific, and it is specific on what temporary employees are doing on the site, why they are employed, and why they are on the site; and there shall be no other form of employment, and that they are to be employed for no less than a period of a week which, to my understanding, a week is basically from Sunday to Sunday, not from Wednesday to Wednesday, or Tuesday to Tuesday, or Thursday to Thursday, or Friday to Friday which is being done at the moment.
PN285
What has led you to have that belief?---It is currently happening on site at the moment.
PN286
From your experience of working with Insulation Solutions for six years, how have people been employed on the site?
PN287
MR O'GRADY: Commissioner.
PN288
THE COMMISSIONER: Yes, Mr O'Grady?
[11.34am]
PN289
MR O'GRADY: I don't want to bog the Commission down in technicalities but, in my submission, this application is going to concern your construction of the EBA. What Mr Gnatz understands the EBA provides or obliges, in my submission, isn't relevant to that determination. Certainly, the authorities are very clear on the issue of what has been the practice subsequent to the making of the EBA is not something that you can have regard to in construing what the words mean; the words mean what the words mean.
PN290
Now, I don't want to hold things up, Commissioner, but I did want to flag the objection on the basis of relevance to this questioning, on the basis that Mr Gnatz may be right or he may be wrong but, really, it is going to be a matter for yourself. If the Commission pleases.
**** TERRENCE MICHAEL GNATZ XN MR PHILLIPS
PN291
MR PHILLIPS: Relevant to that, Commissioner, we say it is important you understand the industrial context of members and how they work on site. They have struck a deal with the company how they understand it. I concur with my colleague with respect to how you deal with it, but I think it is important that if employees can give a view about how they understand it, especially those involved in the negotiations, then they should have that opportunity.
PN292
THE COMMISSIONER: Keep going.
PN293
MR PHILLIPS: What is your knowledge of how temporary employees have been employed?---Yes, well, they are employed for the specifics outlined in clause 10, which is annual leave, sick leave, long service leave, WorkCover, etcetera, and be employed for no less than a period of one week. However, as I pointed out, we see a week being like from Sunday to Sunday, which I think must normal people do. They seem to see now - it has only been probably in the last 12 months that it has happened - they perceive a week being whatever, Wednesday to Wednesday, Thursday to Thursday, Friday to Friday, etcetera.
PN294
Mr Gnatz, with respect to clause 18 of the certified agreement, when was the first time you became aware of that particular clause?---Probably March this year. It has never been, to my knowledge, in the sixth and seventh enterprise agreement it was never brought up, it was never an issue, and when this clause was established in the fifth enterprise agreement I was an employee at the site at the time. I attended all the mass meetings, listened to employees around the site over the period of the negotiations, which were probably eight months, I think, possibly longer, and I never heard anyone with any concerns whatsoever about clause 18. The main concerns were like the introduction of the process material work group, wages outcome and the de-manning on D1 line. This clause here was never mentioned, and I might point out that from the day this clause 18 was established in the fifth enterprise agreement there has been no wording changed whatsoever, including the sixth and seventh enterprise agreements. So I think that clearly shows that the sixth and seventh enterprise agreements was never, ever - it was never brought up.
**** TERRENCE MICHAEL GNATZ XN MR PHILLIPS
PN295
Commission, there is some points I'd like to ask Mr Gnatz, and I know Mr Knowles, I think, is still in the Courtroom. They are relevant to this particular clause.
PN296
THE COMMISSIONER: Okay. So you want Mr Knowles to wait outside.
PN297
MR PHILLIPS: For the purpose of these particular questions. I haven't had an issue with regard to his being present previously, sir. For the purpose of a couple of questions concerning this clause I'd like Mr Knowles to be out of the Courtroom, please
PN298
THE COMMISSIONER: All right.
PN299
MR O'GRADY: Commissioner, could I be heard on that?
PN300
THE COMMISSIONER: Yes, Mr O'Grady.
PN301
MR O'GRADY: Mr Knowles is of course the person who can provide me with instructions about whether what Mr Gnatz says about these things is accepted or refuted. If Mr Gnatz had provided us with a witness statement that spelt all these things out I could have showed that to Mr Knowles prior to today and got instructions about it and know whether I am going to need to cross-examine Mr Gnatz about it. In my submission - what I will be asking the Commission to do when Mr Gnatz is finished with his evidence is to provide me with a brief opportunity to get some instructions from Mr Knowles as to what aspects of Mr Gnatz's new evidence we disagree with.
PN302
So, in my submission, it would be unfair to exclude Mr Knowles from the Courtroom at this juncture. The normal provisions, of course, for witnesses out of Court is during the cross-examination of a witness on their own side, to prevent a witness in effect colluding with the witness in the witness box, and tailoring their evidence according to the cross-examination. So I would ask that Mr Knowles be entitled to remain in the precincts of the Court during the course of this evidence.
**** TERRENCE MICHAEL GNATZ XN MR PHILLIPS
PN303
THE COMMISSIONER: Normally the Commission takes a view that the primary instructor would normally be allowed to stay but, as I understand it, there is the possibility that other representatives of the company may have been involved in the negotiations as well, and if they are here they would have just as much knowledge of clause 18 as Mr Knowles would, and would be able to advise you on any questioning that you may seek clarification on from them.
PN304
MR O'GRADY: If that was - if I had two people who I knew were at all the same meetings and had exactly the same knowledge about what had happened I wouldn't be wasting the Commission's time with this - - -
PN305
THE COMMISSIONER: They are sitting behind you.
PN306
MR O'GRADY: I don't know that they have been to all the same meetings because I don't know what this - - -
PN307
THE COMMISSIONER: Ask them.
PN308
MR O'GRADY: Well I don't know what meetings this witness is going to be talking about.
PN309
THE COMMISSIONER: I would assume that there would at least be one other gentleman that would be consistently at those meetings.
PN310
MR O'GRADY: Commissioner, can I suggest this course, in the light of your observations, namely that Mr Knowles leave the precincts of the Court - - -
PN311
THE COMMISSIONER: Yes.
**** TERRENCE MICHAEL GNATZ XN MR PHILLIPS
PN312
MR O'GRADY: - - - but if it emerges that those behind me, other than Mr Knowles, can't provide me with the instructions I require I have leave to raise the matter with the Commission so that I can ask Mr Knowles about the evidence and get instructions if the Commission so rules.
PN313
THE COMMISSIONER: That is fine. Yes.
PN314
MR O'GRADY: As the Commission pleases.
PN315
MR PHILLIPS: Mr Gnatz, you mentioned EBA five. Are you familiar with EBA five?---Fairly familiar. Yes.
PN316
Would you like a copy to refresh your mind?---Yes, thank you.
PN317
At the time of EBA five, what was your role within the organisation and within the union?---During EBA five I was an employee on site, and that is all; I was not a shop steward at the time. I was not involved in the negotiations.
PN318
On pages 6 and 7 of the document you have in front of you - I hope it is consistent with the documents I have provided, if my photocopying skills are up to speed - there is a clause relating to spread of hours. How does that relate to the clause within EBA seven?---It is identical.
PN319
When you were an employee on site and this agreement was resolved, what steps did the company take to inform you about clause 18?---None. I didn't know about it.
PN320
Were there any other forms of information that you received concerning the certified agreement and the provisions of the certified agreement?---They were the issues that I have outlined in regards to the implementation of process material work group, wages outcome and the de-manning of D1 line.
**** TERRENCE MICHAEL GNATZ XN MR PHILLIPS
PN321
Commissioner, I might ask if that certified agreement be marked, if it please.
PN322
THE COMMISSIONER: This is - - -
PN323
PN324
MR PHILLIPS: Now you say by the time EBA six came around you were a shop steward?---Yes, I was Deputy Shop Steward at the time.
PN325
Were you involved in the negotiations?---Yes, I was.
PN326
What were the major issues within that negotiations?---I think the major issues were the normal in regards to wages outcome and I think the new implementation of the wool line being, I suppose you'd put it, self sufficient in the sense that the wool line was to - all the line employees were to be the forklift drivers in the sense of removal of product from the end of the line to the trolleys, and be taken to the warehouse which was originally a warehouse position.
PN327
Do you recall any discussion about the spread of hours in that negotiation?---No.
PN328
Do you recall the actual provision that was included in the certified agreement?---No.
**** TERRENCE MICHAEL GNATZ XN MR PHILLIPS
PN329
PN330
MR PHILLIPS: Thank you. That being the Insulation Solutions sixth enterprise based agreement 2000 to 2002. What is your view of clause 17, which I think is on page 8 of the document you have in front of you? How does that relate to EBAs 4, 5 and 7?---It is identical, except in the sense in this enterprise agreement six it is called 17, in the other agreements it is 18. That is the only difference that I can see.
PN331
What were the main issues again in this certified agreement, when you were negotiating?---It was the implementation of wool line employees to control product coming off the end of the line and delivering to the warehouse.
PN332
Were there any changes that the union sought as negotiating this agreement to the previous agreement?---Could you repeat the question please.
PN333
If I might withdraw that question if it please, Commissioner. Clause 16 of that agreement, do you recall why that was inserted into this certified agreement?---Yes. The company had tried for, I think, some previous years prior to this going into the sixth enterprise agreement, they had a reasonable claim in the sense of the Melbourne Cup Day and the rostered day being on the Friday, having to shut down Friday, start up again Monday, shut down Tuesday and start up again Wednesday. So we obviously come to an agreement where we would move that RDO and only that RDO throughout the year, to also give employees a long weekend off work. Yes.
PN334
How did rostered days off work prior to this agreement coming in and this particular clause being inserted into this agreement?---There were such as that it was every second Friday and they would not move unless both parties agreed.
**** TERRENCE MICHAEL GNATZ XN MR PHILLIPS
PN335
And this clause was developed for what reason?---Mainly because of the Melbourne Cup Day being so difficult for the company to shut down, start up.
PN336
With regard to clause 17, what steps did the company take to inform you about that after the agreement was agreed to?---None.
PN337
What steps did the company take, generally, to inform you about the certified agreement?---In regards to clause 17 of the sixth enterprise agreement, none.
PN338
What steps with regard to the whole of the certified agreement did the company take to inform you about it?---The normal practice of negotiations.
PN339
So as a shop steward how would you relate your knowledge compared to another employee on site of the terms of the agreement?---I would say my knowledge would have to have been, you know, much further advanced than a lot of the other employees, especially in the sense that the vast majority of them are from a European descent and they have trouble not only speaking English, in some cases, but especially reading.
PN340
I will ask a similar question with regard to the seventh certified agreement, and that is, what steps did the company take to inform you about the clauses and its implications for you as a worker?---Clause 18 of the seventh enterprise agreement again never got a mention, it was never raised, and no-one from the shop floor mentioned it to me in any way or form.
PN341
What steps did you as a shop steward take to inform employees about this agreement?---None, because I was unaware. The issues around the seventh enterprise agreement override - overrode at the time everything else. I was too involved in the other problems.
**** TERRENCE MICHAEL GNATZ XN MR PHILLIPS
PN342
With regard to the current proposal of the rosters that the company has raised, what has been your involvement?---I am part of the consultative committee which was introduced in the seventh enterprise agreement, and the company approached us about this new proposal in, I think, March of this year, and at that stage was a seven day roster. However, that was taken off the table for what actual reasons I am not really clear on, but from what I can recollect I believe it was to do with the five weeks annual leave and 27 per cent shift loading.
PN343
Are you familiar with the roster proposal that is current to operate?---Yes.
PN344
What implications do you see with respect to that roster, as an employee of Insulation Solutions?---I see that this roster is going to impede on my family life greatly, as we would be required to work three Saturdays out of four of every month for the whole year, and has the potential to go on for possibly the rest of my working life at Insulation Solutions, and for my family life too, well, it would be a problem.
PN345
What is your view of a 12 month trial period of this proposed roster?---The 12 months trial period that has been proposed is, I believe, currently outside the current EBA, in respects to clauses 10, 17, 18.
PN346
What would be your view if the company put an option to you of a seven day roster?---I think, speaking on behalf of the employees on the site, I think a seven day roster would be more acceptable.
PN347
Why do you think the company is putting a six day roster option to you?
PN348
MR O'GRADY: Commissioner, I haven't been objecting because I didn't want to waste time, but how can this witness's assessment of what he thinks the company's motivation was have any bearing on these proceedings, with respect?
**** TERRENCE MICHAEL GNATZ XN MR PHILLIPS
PN349
THE COMMISSIONER: Well I will allow the question because I think Mr Gnatz has been involved extensively in the discussions, and I think it is a reasonable question. If for instance Mr Gnatz has said that he believes that a seven day roster would be much more preferable, then it follows, well, why do you think the company is insisting on a six day roster. I think it is a reasonable question.
PN350
MR O'GRADY: Commissioner, in my submission, if Mr Gnatz's evidence is somebody from the company said X this is why we are pursuing a six day roster, I have got no basis for the objection, but that is not what he has been asked. He has been asked to mind read the company's representatives intention.
PN351
THE COMMISSIONER: Well we haven't heard what his answer is. His answer might be, well in the discussions that I had with the company this was their position. And I suppose I have just given him his line.
PN352
MR O'GRADY: Yes. Yes, I understand that Commissioner. As the Commission pleases.
PN353
THE COMMISSIONER: Sorry?---Can we repeat the question again, please.
PN354
MR PHILLIPS: What do you believe to be the reason why the company is offering you a six day roster, taking into account what has been said?
PN355
THE COMMISSIONER: It may be - - -
PN356
MR PHILLIPS: I will clarify that.
PN357
THE COMMISSIONER: Maybe we can just re-phrase the question, Mr Phillips.
**** TERRENCE MICHAEL GNATZ XN MR PHILLIPS
PN358
MR PHILLIPS: In the discussions you had with the company did they provide you with reasons to why they wanted a six day roster as opposed to a seven day roster?---No, they haven't actually - the company hasn't actually said why the difference. I can only guess in the sense that it was looking like they were going to have to pay the five weeks annual leave 27 per cent loading, so the seventh day was taken off the roster. However, obviously they are saying to us that they need the production. We have offered, as the Commissioner knows, to have our labour standby for the Saturday and stay as we are until we negotiate the next current EBA which is only a couple of weeks away from the start date; and obviously the company said no to that. So it makes we wonder whether - or how much production do they really need or what is their motivation.
PN359
One last question, Mr Gnatz, and that is in regard to the next agreement. When do you propose to negotiate or start negotiating the next agreement?---Under the current enterprise agreement it states that negotiations will start four months prior to the expiry date, which expiry date being 20 December, makes negotiations start on 20 August 2004.
PN360
Commissioner, they are my questions. I am not sure that we had Mr Gnatz's statement marked.
PN361
THE COMMISSIONER: No, we haven't.
PN362
MR PHILLIPS: Including the amendments to his last name. Point 1, as the Commissioner has pointed out, "Services" to be replaced by "Solutions" and at point 6, where Mr Gnatz clarified the point that those were key issues of enterprise agreement number five.
PN363
**** TERRENCE MICHAEL GNATZ XN MR PHILLIPS
PN364
THE COMMISSIONER: Mr O'Grady, do you want to bring Mr Knowles back in?
PN365
MR O'GRADY: Well, Commissioner, what I would ask for primarily is that I have an opportunity to get some instructions about all of this material that Mr Gnatz has now told us about.
PN366
THE COMMISSIONER: Right.
PN367
MR O'GRADY: None of this was really flagged in his witness statement. I need to find out what the situation is, and I appreciate I am asking for indulgence, Commissioner, but in my submission it would be appropriate given the way in which this material has come before the Commission.
PN368
THE COMMISSIONER: Right. Well, I have another matter at 12.30. Hopefully that won't - it might go probably about an hour. So what about if we - it might be an appropriate time now to have lunch, and you can get some instructions, and we can reconvene at 1.30, if that is convenient.
PN369
MR O'GRADY: I am indebted to the Commissioner.
PN370
THE COMMISSIONER: All right. Good. Commissioner will adjourn to 1.30, thanks.
LUNCHEON ADJOURNMENT [12noon]
RESUMED [2.13pm]
TERRENCE MICHAEL GNATZ:
**** TERRENCE MICHAEL GNATZ XN MR PHILLIPS
PN371
THE COMMISSIONER: Sorry, for the delay. Yes, Mr O'Grady.
PN372
PN373
MR O'GRADY: Mr Gnatz, you gave some evidence before lunch time regarding your understanding of the enterprise agreement and, indeed, its predecessors. One thing I want to clarify is did you accept that the award which is underpinning the various enterprise agreements does not dictate the days upon which ordinary hours can be worked, and if you don't know then please say that. I am not trying to trap you, I am just trying to see whether you appreciate that the award doesn't say that ordinary hours have to be worked Monday to Friday or any particular days. Ordinary hours can be worked on any of the seven days?---So I understand the question you are asking me is that do I understand the award and what it says in regards to working on any day of the week?
PN374
No, no, what I am saying to you is - you appreciate there is a difference between ordinary hours and hours you might work on overtime? Sorry, you will have to answer for the purposes of the transcript, sir.
PN375
THE COMMISSIONER: You have got to say yes or no. Nodding your head doesn't help the - - -?---I didn't nod, I am trying to listen.
PN376
MR O'GRADY: Sorry, well, do you appreciate there is a difference between ordinary hours and hours which you might work which you get paid at overtime rates?---Yes.
PN377
And I am asking you about ordinary hours and what I am putting to you is that the award doesn't say that ordinary hours have to be worked Monday to Friday or any particular day; ordinary hours can be worked on any of the seven days in a week?---Yes.
**** TERRENCE MICHAEL GNATZ XXN MR O'GRADY
PN378
And you understood that? Sorry, once again you are going to have to answer, Mr Gnatz?---Yes, yes.
PN379
MR O'GRADY: Thank you. All right. Now, prior to lunch when Mr Phillips was opening and you were present in the courtroom when Mr Phillips opened?---Yes.
PN380
Yes. He spoke about clause 18 of the agreement and said the 35 hours have to be worked in a particular week. There is no provision, if you like, for averaging them across a fortnight. Do you remember him saying something along those lines?---Yes.
PN381
Yes. It is the situation, isn't it, Mr Gnatz, that since 1982 or thereabouts when the 35 hour week was introduced the practice at Insulation Solutions has been to average out those 35 hours over a two week period?---I am aware of that. I am also aware of the 35 hour a week agreement making mention of an average. However, the current agreement doesn't mention an average.
PN382
But you accept, do you, that at least for the time that you have been working at Insulation Solutions the practice has been that the 35 hours has been - of ordinary hours has been arrived at by averaging out the hours over a two week period?---It is not a practice because it is written in the 35 hour week agreement.
PN383
The reality is what people have been working since 1982 or thereabouts is one week where they would work 31 hours a week, which would be 30 ordinary hours and 1 hour at time and a half?---Correct.
PN384
That is right, isn't it? And in the next week they would work 39 hours of ordinary hours and they would also work an hour of time and a half?---Correct.
**** TERRENCE MICHAEL GNATZ XXN MR O'GRADY
PN385
And you add those together and divide by two it gives you a total of 35 hours a week - ordinary hours, plus two hours overtime?---Correct.
PN386
And I put it to you that in the enterprise bargaining negotiations that you have been a party to the union has never maintained that it was not open for the company to average out the 35 hours over a two week period?---No, there was never a need to until now.
PN387
Now, you gave some evidence about temporary employees and how you understand clause 10(g) works; do you recall giving that evidence?---Yes.
PN388
You were initially engaged as a temporary employee for Insulation Solutions, weren't you?---Correct.
PN389
And I put it to you that when you were working as a temporary employee you weren't simply filling in for somebody who was doing annual leave? That wasn't the basis upon which you were engaged?---I am not sure the exact purpose. I was in a different area to that I was in now that has a manning level at the time.
PN390
Yes?---There obviously must have been someone not there for me to be there.
PN391
I agree with that. What happened, I put it to you, is that a fellow called Philip Bella left and took a passage, didn't he?---I have not heard of him.
PN392
Okay, all right. And I put it to you that Darren Armstrong went to - who was - went - who replaced Philip Bella?---I am unaware of that. What I am aware of is that Darren Armstrong had - was working shift work on the wool line at the time. I was day shift with fabrication.
**** TERRENCE MICHAEL GNATZ XXN MR O'GRADY
PN393
Yes?---And he had some home commitments and needed to go onto day shift.
PN394
Yes?---And if I remember correctly he done a swap with me.
PN395
All right. So that is how you got a job as a temp?---No, I was already temporary.
PN396
All right, okay. But you were still a temp at the time you did a swap with Darren Armstrong?---Yes, just from one department to another.
PN397
Yes, I understand. And you were a temp for quite a considerable period, weren't you?---Eight months if I remember correctly.
PN398
Thank you. And I put it to you that in the EBA negotiations that you have been party to it has never been said by the union that the ability to engage temporary employees is confined to the circumstances set out in clause 10(g) of the current EBA?---There was no need to because it is written down.
PN399
And indeed, when the roster change that we are talking about today was negotiated it was never said by the union that it was not an option to engage temporary employees for the trial period because the only basis upon which you could engage temporary employees is that set out in clause 10(g)?---We were willing to negotiate obviously and come to some sort of an agreement, the temporary employees being part of the agreement.
PN400
Mr Gnatz, did you understand my question because I am happy to repeat it if you didn't understand it?---Yes, ask it again, please.
PN401
The question was it was never said by the union that it was not an option to engage temporary employees for this trial period because clause 10(g) sets out the only circumstances upon which temporary employees could be engaged. That was never said, was it?---No, because we were willing to be flexible provided the company was.
**** TERRENCE MICHAEL GNATZ XXN MR O'GRADY
PN402
Indeed, would you have a look at this document for me, please, Mr Gnatz. I have a copy for the Commission as well, Commissioner, and I have given a copy to my friend.
PN403
THE COMMISSIONER: Thank you.
PN404
MR O'GRADY: This is your document, isn't it, Mr Gnatz?---This is the consultative committee document.
PN405
It is in your writing?---No.
PN406
It is not in your writing. It reflects the position of the consultative committee with respect to the introduction of this trial or the introduction of this new roster?---Could you repeat the question, please?
PN407
I put it to you that it reflects the position of the consultative committee with respect to the introduction of this roster? It was a proposal put forward by the consultative committee?---At the beginning of the negotiations, yes.
PN408
I seek to tender the document, Commissioner.
PN409
PN410
MR O'GRADY: And that document deals with the issue of temporary employees at about the middle of the page, doesn't it?---Yes.
**** TERRENCE MICHAEL GNATZ XXN MR O'GRADY
PN411
Temporary employees, end of trial period all become full time?---That is correct.
PN412
And I put it to you that was the position of the union with respect to the engagement of temporary employees, that the company could engage them for the trial period, but the union were concerned to ensure that at the end of the trial period they would be engaged on a permanent basis?---That is correct because we were and are willing to be flexible provided the company is going to be flexible.
PN413
And there was another concern I put to you, that there was also a concern that permanent employees should have a, if you like, a preference in training as opposed - when compared to temporary employees; do you accept that was also a concern about temporary employees?---No, we asked that the full-time employees have the first option for key positions on site.
PN414
I understand. But I put it to you that both of those concerns that the transition from being temporary to permanent at the end of the trial and the preference of full-time employees for key positions, were based on the assumption that it was open to the company to engage temporary employees for reasons other than those set out in clause 10(g)?---That is correct provided the company was willing to be flexible.
PN415
You also gave some evidence about the negotiation of the enterprise agreements and perhaps - is it fair to say that you were more intimately involved with the negotiation of the seventh enterprise agreement than you were with the previous agreement?---No, I would say the same.
PN416
You would agree with that?---I would say that I had the same interest.
PN417
Right. Okay. And is it fair to say that certainly with respect to the negotiation of the seventh enterprise agreement you were, if not the most senior, then quite a senior union representative on site?---Correct.
**** TERRENCE MICHAEL GNATZ XXN MR O'GRADY
PN418
And you were, I suppose, intimately involved in those negotiations?---Correct.
PN419
And the union was also directly involved in those negotiations. This isn't an LJ agreement, these were LK agreements. That is the case, isn't it?---Correct.
PN420
And you are aware, aren't you, that part of your obligations in reaching an agreement that is certified by the Commission is that the employees who are going to be bound by the agreement be provided with copies of that agreement and information about the agreement. That is the case, isn't it?---That is correct. However, in the sixth enterprise agreement, if you would like me to elaborate - - -
PN421
No, I am dealing with the seventh enterprise agreement?---Well, the seventh, yes, it is the same thing. We have asked for - on more than one occasion for the agreement to be written in a different language or an interpreter to be on site to interpret it.
PN422
Yes?---And we have been refused.
PN423
See, I put it to you - and this is something that Mr Knowles will give evidence on in due course I suspect - but I put it to you that the company actually made an offer to have an interpreter, or have the agreement in a different language but was told by the union there was no need?---I don't believe that; that is incorrect.
PN424
Do you agree that the agreement was - sorry, members of the negotiating committee were provided with copies of the agreement once it had been, if you like, agreed in-principle for the purposes of explaining to employees?---That is correct.
PN425
And you agree that the agreement was also placed on noticeboards for the purposes of them having an opportunity to look at it if they wanted to prior to voting on it?---Yes.
**** TERRENCE MICHAEL GNATZ XXN MR O'GRADY
PN426
And you agree that there were additional copies available of the agreement. If you needed to have a copy to give somebody you could have approached management and they would have provided you with an additional copy of the agreement to enable that to take place?---I don't know whether that was offered but very well could be the case if I approached the company, yes.
PN427
And certainly when the agreement was submitted to the Commission for certification the union signed off on a statutory declaration, didn't it, about the process that had been gone through for ensuring that employees had an opportunity to understand its contents?---Correct.
PN428
And Ms Angus, she is an organiser with your union?---Correct.
PN429
And are you aware that she signed off on the stat dec with respect to the certification of this agreement?---Correct.
PN430
Yes. Could the witness please be shown a copy of the stat dec and I have got a copy for the Commission and for my friend. I put it to you that this is the stat dec that accompanied the seventh enterprise agreement; do you accept that?---Well, this is the first time I have seen it but I presume it is.
PN431
Could I ask you to turn - and if you go to the last page you will see it has been signed off by Ms Angus. Do you see that there?---Yes, yes.
PN432
PN433
MR O'GRADY: Could I ask you to turn to the fourth page of the stat dec under the heading part 6 about the employees. Do you have that there, Mr Gnatz?---Yes.
**** TERRENCE MICHAEL GNATZ XXN MR O'GRADY
PN434
And that says:
PN435
Was the agreement genuinely approved by a valid majority of persons employed at the time whose employment will be subject to the agreement?
PN436
And the answer there is yes. That is the case, isn't it?---Yes.
PN437
And then it says:
PN438
Describe the steps taken to ensure that employees had ready access in writing to the agreement and understood the terms of the agreement.
PN439
Do you see that?---Yes.
PN440
And what Ms Angus has written there is:
PN441
Regular meetings were held with employees and members. The terms of the EBA were clearly explained and discussed in a manner appropriate to the language needs and a well-established consultative committee is in place.
PN442
Do you see that there?---I do see that.
PN443
Yes. Now, Ms Angus clearly didn't have any concerns about the way in which the EBA was explained to the employees, did she?---Obviously not.
PN444
THE COMMISSIONER: Was Ms Angus the servicing officer at the time?---No, as in our organiser?
**** TERRENCE MICHAEL GNATZ XXN MR O'GRADY
PN445
Yes?---No, our organiser at the time was Michael Borowick.
PN446
Okay?---She just came in for the signing of the agreement.
PN447
Okay.
PN448
MR O'GRADY: And you were aware that a stat dec was to be filed by your union for the certification of this agreement?---Yes.
PN449
And you never took issue with her and said look, you can't write that because we have asked them again and again and again to put it into other languages and they have refused to?---As I said before, this is the first time I have seen this statutory declaration form.
PN450
I see. Well, Ms Angus wouldn't have made that up, would she?---No.
PN451
Now, you told us that with respect to the seventh agreement there was some dispute concerning clause 21 and I want to come to that in a minute, but before I come to that would you have a - do you have a copy of the seventh agreement before you?---Yes.
PN452
And if I could ask you to turn to clause 2. Do you have clause 2 of the agreement?---Yes.
PN453
And this is on the second page of IS2. You didn't tell us - there was no dispute about clause 2, was there?---No, and there never has been.
PN454
And clause 2 sets out the objects of the agreement, doesn't it?---It does.
**** TERRENCE MICHAEL GNATZ XXN MR O'GRADY
PN455
It sets out the guiding principles by reference to which everything else in the agreement is to be read, doesn't it? Do you understand the question, Mr Gnatz?---Yes, I do.
PN456
Yes. Do you agree with me or not? That is what objects are?---Yes.
PN457
Yes. And one of the objects of the agreement which appears in the third - sorry, the fourth paragraph on the second page is that:
PN458
Insulation Solutions and its employees who are members of the AWU glass and container branch agree that the challenges facing the enterprise must be met by continuously innovating as the needs of customers change.
PN459
That is one of the objects, isn't it?---Yes.
PN460
And another of the objects - and this appears in the next paragraph - is that it is agreed:
PN461
It is agreed that work practices and arrangements that inhibit taking advantage of new opportunities are at a cost to the enterprise and unacceptable in the new market environment.
PN462
That is another object that you agreed to, isn't it?---Yes.
PN463
And you are well aware, aren't you, Mr Gnatz, that the move to a six day roster is designed to enable the company to take advantage of new opportunities?---I disagree because the current EBA says seven days. There is no mention of six.
**** TERRENCE MICHAEL GNATZ XXN MR O'GRADY
PN464
Forget about that for the moment, Mr Gnatz. I do want to come to clause 18 and spend some time with it, but I am just putting to you that the motivation for the company wanting to move to a six day roster is because there is an opportunity there to make more product and sell more product and they want to take advantage of it?---That may be the case but the question is can they do it?
PN465
Yes, thank you, Mr Gnatz. Now, you also spent some time on clause 21 and as I understand your evidence regarding clause 21 you say that well, there was some painstaking negotiations over this clause. Is that a fair summary?---That is correct.
PN466
Yes. And at the end of that process these are the words that were agreed upon by the union, by the employees with the company, aren't they?---That is correct.
PN467
Yes. And the first thing you agreed upon is that:
PN468
The parties to this agreement agree to operate the entire plant in the most cost effective manner.
PN469
That is right, isn't it?---Correct.
PN470
And the second thing you agreed upon in the second of the clauses in clause 21 is:
PN471
This agreement provides for measures to implement workplace efficiency. The parties to this agreement do not seek to limit the flexibilities available to Insulation Solutions under this agreement.
PN472
That is what you agreed to, isn't it?---Well, I think - yes, yes, well, it is there in black and white. It is a legal binding document so obviously we agreed to it.
**** TERRENCE MICHAEL GNATZ XXN MR O'GRADY
PN473
Yes, yes. And you were a party - you were a member of the negotiating committee that agreed to this; that is right, isn't it?---I was a member of the employees on site that agreed to it.
PN474
You weren't involved in the negotiations? I got the impression earlier that you were intimately involved in the negotiations that led to this?---Yes.
PN475
Yes. And the third thing you agree to is that:
PN476
The parties to this agreement recognise the changes introduced over recent years have benefited all concerned and have assisted in building a more secure future for the business. The parties further recognise the change process is ongoing.
PN477
You agreed to that as well, didn't you?---Yes, we don't want to knock the business down.
PN478
No. And the change that is being proposed is all about building the business up, isn't it, Mr Gnatz?---Well, of course, it must be, you are going to make more product.
PN479
And it is all about giving people jobs, isn't it, Mr Gnatz?---Yes.
PN480
21 jobs, isn't it - that has been the figure?---Oh, the company has told me 22.
PN481
Okay, maybe more. If things go well there may be even more jobs; that is right, isn't it?---No, I don't think that is possible.
PN482
All right. And there were similar objects, weren't there, Mr Gnatz, in the number 6 EBA agreement. Clause 2 was - it was similar agreement. Do you have exhibit AWU2 there?---Yes.
**** TERRENCE MICHAEL GNATZ XXN MR O'GRADY
PN483
If you can turn to the second page?---Yes.
PN484
And in that EBA it was once again agreed that work practices and arrangements that inhibit taking advantage of new opportunities are at a cost to the enterprise and unacceptable to the new marketing environment. That is similar to what is in the seventh EBA, isn't it?---Yes.
PN485
Now, I think you gave evidence that when the seventh EBA was negotiated there was no discussion about either clause 10 or clause 18. I think you have sort of suggested it wasn't discussed or raised by the company?---No, I think clause 10 in EBA 7, there was negotiations surrounding clause 10.
PN486
Was there? Did that concern clause 10(g)?---Yes, there was a minor change in clause (g).
PN487
Was that change two weeks to one week in 10(g). The minimum period of engagement was dropped from two weeks to one week?---Yes, that is correct, and there is something else that changed in that.
PN488
What else changed?---From the sixth enterprise agreement as well.
PN489
What else changed in the seventh EBA?---Well, the company had left out annual leave.
PN490
All right. So annual leave was put in?---Which we didn't push the issue and cost the business a whole heap of money.
PN491
All right. And with respect to clause 18 did I get your evidence correctly, that you say there was no discussion about clause 18?---No, that is correct. That is correct.
**** TERRENCE MICHAEL GNATZ XXN MR O'GRADY
PN492
I put it to you that during the course of the negotiation what Mr Knowles used to do was go through the clauses in the EBA and if there was a problem then it would be put to one side and dealt with in due course, but if there wasn't a problem that in effect it would be just ticked on and go through to the keeper. Do you accept that that is what he did?---I can't say for sure in every case.
PN493
But that is consistent with his practice?---Well, I suppose one would only bring up what one wants to.
PN494
I understand, understand. And I put it to you - and you may not recall this, but Mr Knowles I assume is going to give this sort of evidence - he is going to say, well, you know, that is what I do and that is what I would have done with clause 18 and would have largely done with clause 10. Do you differ with that - say he is lying about that?---Yes, I do. I don't believe clause 18 was ever brought up.
PN495
Ever brought up at all, even just to say, look, we don't have to worry about - there is no problem with clause 18, let us move on. You say it was never mentioned at all?---Not to my recollection.
PN496
The union certainly didn't mention it?---No. No, it was not an issue.
PN497
No?---Definitely not. There were too many other more important issues at the time.
PN498
It was not as if it was hidden away. Everybody knew that clause 18 was there, didn't they?---Well, I personally don't really remember taking much notice of it at all, even taking the time to read it word by word, that is for sure, definitely do not remember.
PN499
Well, you had a copy of the proposed EBA that you were negotiating?---That is correct.
**** TERRENCE MICHAEL GNATZ XXN MR O'GRADY
PN500
You had had copies of previous EBAs?---That is correct.
PN501
You have told us that clause 18 hasn't changed other than its numbering from EBA number 5 through to EBA number 7?---The wording hasn't changed.
PN502
No, no. And I put it to you that if you had have taken the time to read it you could have done so and seen what it said?---Well, that means that it has obviously never been negotiated if nothing has changed, so it hasn't been brought up.
[2.43pm]
PN503
Do you agree with my proposition that if you had wanted to read it, you could have done so?---Yes.
PN504
Do you agree with my proposition that if you had had a problem with it, you could have raised it in the course of the negotiations?---Provided I wasn't tied up with other issues that were bigger, and didn't notice it.
PN505
If you had thought it was important, you could have raised it, couldn't you, Mr Gnatz?---I could have raised hell.
PN506
Did you understand the question, Mr Gnatz?---Yes, and yes.
PN507
The answer is yes, isn't it? Thank you. Now, unlike clause 18, clause 17 hasn't been there all the time, has it?---No.
PN508
Clause 17 wasn't there in the fifth EBA, was it?---The fifth? I would have to look at it. I don't see it here.
**** TERRENCE MICHAEL GNATZ XXN MR O'GRADY
PN509
No, but it does appear in the sixth, as clause 16?---Yes.
PN510
And as I understand it, you say the reason why this issue of RDOs was put into the EBA was that the company had a problem with RDOs in the week prior to Melbourne Cup week?---Correct.
PN511
So the company had a problem, I think you described it as a sort of - you didn't use this language, but as I understood it was a sort of stop/start problem. You know, you have got to stop on Thursday, stop on Friday, and then you have got to start up again on Monday, and you have got to stop on Tuesday. Is that a fair way of describing it?---That is correct.
PN512
And so the company brought this clause in to deal with that problem?---That is correct.
PN513
And the union agreed to this clause, in the sense of, you know, keeping the operation running to deal with that problem?---Yes.
PN514
That was why it was brought into the EBA?---Yes, because years previous we used to have a mass meeting at the same time year, after year, after year, surrounding the issue.
PN515
Yes, so in order to address that issue, stopping around Melbourne Cup Day we are going to bring in a clause that deals with it specifically, and that was why clause 16 was put in?---Correct.
PN516
And it was put in there notwithstanding that what is clause 17 in the sixth EBA and clause 18 in the current EBA was in the terms - it had been in the same terms for a number of years?---This is the rostered day clause?
**** TERRENCE MICHAEL GNATZ XXN MR O'GRADY
PN517
No, this is spread of hours clause?---Spread of hours clause, yes.
PN518
Spread of hours has stayed the same. You have got a little problem with Melbourne Cup Day, so to fix that you bring in clause 16?---Yes.
PN519
Now, with respect to clause 18 of the seventh agreement, the spread of hours clause, you have told us a bit about the negotiations of that clause. I put it to you, and I think this is consistent with your evidence, that the initial proposal of the company was to move to a 7 day operation: do you accept that?---Yes.
PN520
And one of the issues that was raised in response to that was that the union maintained that there should be five weeks leave. If that is what you are going to do, people should get five weeks annual leave. Do you accept that?---That is correct.
PN521
And I put it to you that the company's position was that it didn't accept that there was an entitlement to five weeks leave, but agreed that if the Commission ordered it, it would pay five weeks leave, if it introduced the 7 day roster?---Correct.
PN522
But it was after that the union indicated that it didn't want to move to a 7 day roster because of lifestyle issues, people having to work regularly on a weekend?---That was mainly in response to the negative of a five weeks annual leave 27 per cent loading.
PN523
Do you accept that there was opposition from the union to a move to a 7 day roster, unless it was accompanied by five weeks annual leave and the loading that we spoke about?---That is correct.
PN524
Now, do you still have exhibit IS3 there before you? One of the things in that position was that the union team wanted the RDO not to occur on the weekend: so you see that? It appears about five lines down:
**** TERRENCE MICHAEL GNATZ XXN MR O'GRADY
PN525
Specified RDO not on weekend.
PN526
Do you see that?---Yes, I see part of that clause. That is not the full clause.
PN527
Are you suggesting that this document has been tampered with?---No, I am not. I am just reading on a bit further where it says:
PN528
Public holidays and RDOs not to be on the same day.
PN529
Okay, all right. That is fine. I understood this was just a photocopy of notes that had been given to us from the union. I just wanted to make sure you accept those as right. Do you agree - - -
PN530
MR PHILLIPS: Excuse me, Commissioner, I don't think that was actually identified it was from the union. It was identified as a document.
PN531
THE COMMISSIONER: Yes.
PN532
MR O'GRADY: I am sorry, from the negotiating team. I apologise. I didn't mean to accuse the union of - - -
PN533
MR PHILLIPS: I don't think it was specifically identified as to who did the document. You asked whether it was his handwriting, and he denied that, although he recognised the document.
PN534
MR O'GRADY: The transcript will show it, Commissioner, but I understood that the witness gave evidence that this was a document that was prepared by the union negotiating team, but if there is any doubt about that, I will clarify it.
**** TERRENCE MICHAEL GNATZ XXN MR O'GRADY
PN535
Do you accept that this is a document that was created by the employees' negotiating team?---I don't think anyone in the negotiating team wrote this document.
PN536
But I think you accept that it expresses the position that the negotiating team were taking at a particular time?---Yes.
PN537
And it certainly reflected that regarding temporary employees that I took you to earlier?---Yes.
PN538
And it reflects that with respect to the position of working the RDO, that it not be on a weekend, public holidays and RDO not be on the same day?---Correct.
PN539
Do you agree with me that lifestyle or family responsibilities are going to be facilitated by having the RDO on a weekend?---I don't understand the question.
PN540
Do you agree with - to the extent to which you are saying that there are concerns about lifestyle and family responsibilities associated with a move to a 6 day roster, what I am putting to you is that if people have an RDO on a weekend, it will help them meet their family responsibilities. They will be able to play with the kids on the weekend, when they have got an RDO on the weekend?---I can't see how you can have an RDO on a Saturday or a Sunday.
PN541
Well, just accept for the moment that that comes with moving to a 6 day operation. Do you accept that not having to work, which is what an RDO is all about, enables you to spend time with your family and meet your family responsibilities?---Correct.
PN542
Do you agree with me, Mr Gnatz, that at the moment there is a fair bit of overtime that is worked by the employees at Insulation Solutions?---Correct.
**** TERRENCE MICHAEL GNATZ XXN MR O'GRADY
PN543
About 11-1/2 hours on average, would you accept that, per week?
PN544
MR PHILLIPS: Commissioner, it might be better if he is asked how much his is. I am not sure he knows every person's overtime on the site.
PN545
THE COMMISSIONER: Right.
PN546
MR O'GRADY: Well, I am not asking you to - there will be evidence brought by the company that that is the position. Do you accept that reflects your understanding, or not?---Well, there is overtime there. The actual figure - - -
PN547
You don't have access to those details?---I do have access to the figures, yes, but I haven't divided it, so I don't know whether it is 11 hours, 7 hours, or 14 hours.
PN548
In that range?---Yes.
PN549
And do you agree with me that there can be occupational health and safety issues raised by people working excessive overtime on a regular basis?---Yes.
PN550
And you accept that one of the consequences of the adoption of the roster that is being proposed by the company will be, at least in the potential, to reduce the amount of overtime that people are regularly working?---Possibly, possibly.
PN551
You don't see that as being an inevitable consequence?---Yes, I do, more than likely. More than likely.
PN552
And that of course would have the benefit of enabling people to spend more time with their families if they wanted to?---No, I disagree.
**** TERRENCE MICHAEL GNATZ XXN MR O'GRADY
PN553
It would have the benefit of minimising any occupational health and safety issues which would flow from working excessive overtime?---If it is 11 hours like you say, I don't believe it is excessive.
PN554
You don't have any problems with the idea of people working 11 hours, or thereabouts, regular overtime per week?---No.
PN555
I put it to you, Mr Gnatz, that to the extent that your evidence is that the concern about this roster is family responsibilities and lifestyle issues, the new roster will have advantages for employees?---I disagree.
PN556
There may be a financial impact of the new roster on the existing employees. They may not be able to get their regular 7, or 11-1/2 or 14 hours overtime, but from the point of view of being able to spend more time with their families, they will actually have a greater opportunity to do that?---No, I don't believe you will spend more time with your families.
PN557
You certainly won't have to be at work so often, will you?---No, but it doesn't mean to say you are going to be with your family.
PN558
You might be elsewhere?---No. Wife works, I'm home during the week. My family is not at home, the kids are at school. I'd spend less time with my kids, if you want to be honest.
PN559
You are aware, aren't you, Mr Gnatz, that with respect to the financial issues, the company has put on the table a proposal to address some of those issues by making payments to employees?---Two once-off payments, yes.
PN560
And the most recent proposal which was made on 16 July is for a - was for a $1000 payment to affected employees on 1 August?---Correct.
**** TERRENCE MICHAEL GNATZ XXN MR O'GRADY
PN561
And then there would be a $500 bonus payment to affected employees on 1 August 2005?---Correct.
PN562
If a certain tonnage is achieved?---Mm.
PN563
And there were also other components of an increase to roll over into the current EBA?---Well, I believe that is a separate issue.
PN564
PN565
MR O'GRADY: I have no further questions, thank you, Mr Gnatz.
PN566
PN567
MR PHILLIPS: Mr Gnatz, Mr O'Grady asked you some questions concerning your employment. Do you recall which agreement would have been operating when you were employed by the company?---It would have been the fourth enterprise agreement.
PN568
The fourth enterprise agreement?---That is correct, yes.
PN569
I may just for the purpose of that question put to you a copy of the fourth enterprise agreement. Can you indicate to me in that agreement where there is a restriction on temporary employees?---No, I can't see one.
**** TERRENCE MICHAEL GNATZ RXN MR PHILLIPS
PN570
Was it common that the company at that time employed temporary employees on site?---Yes.
PN571
Do you recall when in your certified agreement negotiations, when the issue of temporary employees became part of the negotiations?--- The fifth enterprise agreement.
PN572
Commissioner, for the record, I was unable to find a clause within that agreement that restricted temporary employees.
PN573
You were asked some questions about the award that would have applied, and some questions about the shift patterns. I want to take you to that award. Actually prior to that, Commissioner, I might ask that the ACI Insulations Fourth Enterprise based Agreement be tendered.
PN574
MR PHILLIPS: I might pass you a copy of what is now a simplified version of the award that would have applied at that time, referring to AWU4 was the Glass Workers Consolidated Award 1985, its predecessor as simplified is the Glass Industry-Glass Production-Award 1998.
PN575
Commissioner, I don't have as many copies as I would like of this particular provision.
PN576
THE COMMISSIONER: That is all right.
PN577
MR PHILLIPS: I wanted to take you specifically to clause 13 of that award. I understand that EBA 4 was underpinned by the award. Which category would you say the company can use to employ people from that award, considering the time of EBA 4?---We are looking at the 1985 Award or 1998?
**** TERRENCE MICHAEL GNATZ RXN MR PHILLIPS
PN578
You can go to the 1998, because that is the award that stands at the moment?---From my understanding, temporary employees.
PN579
Would they have also employed casual employees?---Not to my knowledge, no.
PN580
Part-time employees?---No.
PN581
Mr Gnatz, you say you were employed at the time of EBA 5?---Correct.
PN582
And you have still got that in front of you, which is AWU1?---Yes.
PN583
If I can take you to clause 22 of that agreement. It is on page 9 of the copy I have. Do you see a provision there relating to part-time employment?---Yes.
PN584
I might give you time to read that provision?---Yes.
PN585
Would the employer at that time have been able to employ part-time employees?---In the way I understand the clause, under certain circumstances, yes.
PN586
Would you know of a reason why that provision didn't carry through to EBA 6, AWU2?---I think probably because the reason why it changed from this, because this wouldn't really work on site. This would be very difficult for this clause to work, in EBA 5, that is.
PN587
So you think it would have just wasted away because it wouldn't have been operational?---I don't remember any part-time employees being employed under this clause.
**** TERRENCE MICHAEL GNATZ RXN MR PHILLIPS
PN588
Did the company ever ask for casual employees to be employed, as part of the negotiations?---No.
PN589
A less restricted part-time clause to be included in the agreement?---No.
PN590
They were happy to include in the new provision, a provision regarding temporary employees?---Yes.
PN591
The workforce - when you voted on the agreement, you were happy with that proposal?---Yes.
PN592
Mr O'Grady asked you some questions about a handwritten document which was identified as IS3. As I understand, that represents a proposal concerning a roster. Did the company accept this proposal?---No.
PN593
What was the company's response to the proposal?---No.
PN594
They didn't provide any reasons?---No, I think they just came back with a counter-proposal.
PN595
So what happened to that proposal then?---I am not sure. It is probably floating around somewhere.
PN596
Is it fair to say that that is no longer a proposal?---Yes.
PN597
The company didn't raise the objectives of the agreement with you when they rejected your proposal, as in clause 2 of the certified agreement?---No, they did not.
**** TERRENCE MICHAEL GNATZ RXN MR PHILLIPS
PN598
At any time in these negotiations have the company highlighted the objectives of the agreement?---No, they have not.
PN599
They have not sat down and gone through each paragraph?---No, they have not.
PN600
They haven't given you specific customer requirements, that this is the reason for the 6 day shift roster?---No.
PN601
Why do you think there was no objection from the negotiators to have the objectives of that agreement placed in the agreement? From the union perspective, why didn't the union object to that clause 2 in EBA 7?---Because it was never brought up, it was never discussed. And again the other issues were that big, everybody I believe was consumed by them.
PN602
Did you ever have a disagreement about the title of the agreement?---Yes, we did.
PN603
What happened in that?---It was rejected by the company.
[3.11pm]
PN604
Mr O'Grady asked you some questions about clause 18?---Yes.
PN605
Which I think has already been established, is in two previous certified agreements?---Correct.
PN606
Being EBA 6 and 5. Has there ever been a dispute whilst you have been working under these agreements with those specific provisions?---No.
**** TERRENCE MICHAEL GNATZ RXN MR PHILLIPS
PN607
Has there ever been a problem on how they have been applied on site?---No, not until now.
PN608
If I could take you back to the negotiations of this agreement, if the company had have proposed to you a six day roster, would that have been an issue in dispute?
PN609
MR O'GRADY: Well, with respect, Commissioner.
PN610
THE COMMISSIONER: Yes.
PN611
MR O'GRADY: How does this arise out of cross-examination?
PN612
THE COMMISSIONER: Mr Phillips.
PN613
MR PHILLIPS: Commissioner, I think I am just trying to establish that in negotiations, issues that aren't of a major factor, I think, myself, I know, are agreed and out of the way, and the hard issues are debated. I can move onto other questions, Commissioner.
PN614
THE COMMISSIONER: Yes, thanks.
PN615
MR PHILLIPS: In EBA7, what were the major issues that you had debated?---I think the main issue was the flexibility clause.
PN616
Did you categorise clauses that were a problem?---Yes, there would have been some where there was also a problem with co-ordinators all purpose allowance. And the role of the co-ordinators as well, was an issue. That is all I can think of at the moment.
**** TERRENCE MICHAEL GNATZ RXN MR PHILLIPS
PN617
For the last agreement, you were part of the union structure in negotiations?---Correct.
PN618
Were you present at mass meetings held by the union?---Correct.
PN619
Those meetings were open to union members to ask questions about the agreement?---Correct.
PN620
How was the agreement presented to its members?---As is written.
PN621
Did the company sit down with you as an employee and explain the document to you?---No, not the full document, no.
PN622
Did they hold a mass meeting of their employees to go through it?---No.
PN623
What did the employers do with respect to the agreement?---Employees?
PN624
The employer, do, with respect to explaining this document to you?---They don't really.
PN625
MR O'GRADY: Commissioner, before - - -
PN626
THE COMMISSIONER: Yes, Mr O'Grady.
PN627
MR O'GRADY: I just have an issue about relevance, Commissioner, the light of the acknowledgment of the stat dec that has been filed.
**** TERRENCE MICHAEL GNATZ RXN MR PHILLIPS
PN628
THE COMMISSIONER: Relevance, Mr - - -
PN629
MR PHILLIPS: I can keep moving on, Commissioner.
PN630
THE COMMISSIONER: Thank you.
PN631
MR PHILLIPS: How do you usually work your overtime?---All hours of the day and night.
PN632
Is it a regular pattern or - - -?---Yes, fairly regular, yes.
PN633
Are you expected to work overtime?---Yes, indeed.
PN634
Do many people on the worksite turn down overtime?---Very few.
PN635
What is your understanding of a rostered day off?---A rostered day off.
PN636
RDO?---RDO. It is time to spend at home, time to get away from work. Time to spend with the family.
PN637
I think that is all I have, Commissioner.
PN638
THE COMMISSIONER: Thanks, Mr Phillips.
**** TERRENCE MICHAEL GNATZ RXN MR PHILLIPS
PN639
MR O'GRADY: Commissioner, there is just one issue that I want to raise out of fairness to the witness as much as anything else. And it concerns the time of his engagement. My instructions are that there were, in effect, two periods of engagement as a temporary employee of the witness. The first occurred in May 1998, finishing in September 1998. And the second commenced in January 1999, or February 1999. Now, the witness has given evidence that when he was first employed, he was employed under EBA4. That is certainly the case with respect to the first engagement. The company is going to give evidence, along with the dates that I have given. In fairness, I think - I just like to clarify, or have that issue clarified with the witness, and I am happy for my friend to do it. Or I can do it, as the Commission pleases.
PN640
THE COMMISSIONER: Right. Mr Phillips.
PN641
MR PHILLIPS: I think it is a simple question of asking the witness, have you had two engagements of employment?---Yes, I believe so, now that I remember the - I was put off during the gas explosion, the Longford gas explosion.
PN642
So you were terminated or made redundant, or your contract expired?---My contract had expired - they had terminated my employment.
PN643
And you were re-engaged when?---Well, actually, the company agreed to continue our service, I think, because that is how my annual leave comes about that time of the year, my roll-over. And why I have been employed there for six years and a couple of months. Yes, I think our service was continued.
PN644
How did the company describe it to you?---Because there was some confusion at the time, people were, you know, obviously been forced to take - or forced to take annual leave, the company didn't have any other position, I think. And I think it was agreed, there was a notice put upon the board, even, that our service and there were other casuals there, full-timers they are now. But other casuals there at the time, that their service was continued. I am sure the service - if the service wasn't continued, then the company is saying that I have been there for six and something years, is incorrect then.
**** TERRENCE MICHAEL GNATZ RXN MR PHILLIPS
PN645
We might be on a bear expedition to find out the details of this, Commissioner.
PN646
THE COMMISSIONER: Mm.
PN647
MR PHILLIPS: It is simply - so potentially you could have been employed under EBA5?
PN648
MR O'GRADY: Just to clarify, Commissioner, that will be the evidence that the service is calculated by reference to total length of service, even if you have got a number of successive disparate temporary engagements, and then permanent engagement.
PN649
THE COMMISSIONER: Right.
PN650
MR O'GRADY: And service is worked out as, the total of which is an appropriate way of doing things.
PN651
THE COMMISSIONER: Right.
PN652
MR O'GRADY: But the evidence will be that there was an initial engagement in May 1998. That came to an end in September 1998, and then there was a re-engagement in early 1999.
PN653
THE COMMISSIONER: Right.
PN654
MR O'GRADY: Which, of course, was after EBA5 commenced.
PN655
THE COMMISSIONER: Okay, thank you.
**** TERRENCE MICHAEL GNATZ RXN MR PHILLIPS
PN656
MR O'GRADY: And I don't understand the witness to take issue with that, really. His evidence he has just given a moment ago.
PN657
MR PHILLIPS: I think we are taking issue with that. I think the main point we are looking at is the form of employment that was available to the employer at that time, in the context of questions regarding temporary employment, and the restrictions that apply to that from EBA6 and 7, which are not included in EBA5.
PN658
THE COMMISSIONER: Right.
PN659
MR PHILLIPS: I don't have any further questions, Commissioner.
PN660
THE COMMISSIONER: All right. Thank you, Mr Phillips.
PN661
Just, Mr Gnatz, when the Spread of Hours clause was put into the agreement, what do you think it meant? What was its purpose?---I believe the Spread of Hours clause obviously showed itself in the fifth enterprise agreement. I was unaware of it at the time. And from that day, really never took a great deal of notice of it, until March this year.
PN662
PN663
THE COMMISSIONER: Yes, Mr Phillips.
PN664
MR PHILLIPS: Commissioner, if it please, I seek to call Mr Michael Borowick.
PN665
THE COMMISSIONER: Thank you.
PN666
MR O'GRADY: Commissioner, as I understand my friend has no objection to Mr Knowles coming back into the precincts of the courtroom.
PN667
THE COMMISSIONER: Thank you.
PN668
MR PHILLIPS: The chief could be out there, Commissioner. Another incident.
PN669
THE COMMISSIONER: Who walked down the stairs?
PN670
MR O'GRADY: I think we all did, Commissioner.
PN671
THE COMMISSIONER: I tell you what, my knees have never been so wobbly, by the time I got to the bottom.
PN672
MR PHILLIPS: It is my third time in this Commission.
PN673
THE COMMISSIONER: Is it?
PN674
MR PHILLIPS: I am a bit afraid of coming back in here.
PN675
THE COMMISSIONER: Might be jinxed.
PN676
MR PHILLIPS: It is much better in Adelaide, the steps aren't as long.
PN677
THE COMMISSIONER: No. It will be better in the new building, there will be only four, six and seven, where the courts are; the top floor for us will be nine. I was going to send out a search party for you, Mr Borowick.
PN678
PN679
MR PHILLIPS: Mr Borowick, have you prepared a witness statement for today's proceedings?---I have indeed.
PN680
Do you have a copy of that?---No, I don't.
PN681
For the record, Mr Borowick, can you state your name and your address?---Michael Borowick. My work address is 685 Spencer Street, West Melbourne.
PN682
And your occupation?---Union organiser.
PN683
I tender that statement, Commissioner.
PN684
PN685
MR PHILLIPS: Mr Borowick, you state your current position is an organiser. Have you held other positions within the AWU, and what are they?---Yes, I have also been an industrial officer.
PN686
How long have you been employed with the Australian Workers Union?---I have been an employee and an officer of the organisation and its predecessors since 1990.
PN687
Your role as an organiser, how did that develop, with regard to the company, Insulation Solutions?---Well, I did appear in matters before the Commission to do with Insulation Solutions when I was an industrial officer. Then I had a dual role, both industrial officer and organiser, and then I solely became an organiser.
**** MICHAEL BOROWICK XN MR PHILLIPS
PN688
What responsibilities is that - put to you as an organiser for the Insulation Solutions site?---Well, I have had responsibility for pursuing the interests of the AWU membership at that site, and I have been involved in the negotiation of enterprise bargaining agreements.
PN689
Which agreements in particular, have you negotiated with in regard to the company?---I became involved in the final stages of the negotiation of the 1998 agreement, and I was involved throughout the 2000 and 2002 agreements.
PN690
Are you familiar with the certified agreements, Mr Borowick?---Yes, I am.
PN691
Mr Borowick, I would like you to turn to AWU1, which is Insulation Solutions 5th Enterprise Based Agreement. What was your role with regard to this negotiation?---I became involved in the final stages of negotiation of the agreement.
PN692
What would you say were the major issues in contention for this agreement?---My involvement centred around the wage claim, manning levels or employee levels. And the existence of the Process Material Work Group.
PN693
Did you have much involvement in the negotiation of clause 8, Spread of Hours?---Are you referring to the 1998 agreement?
PN694
I am referring to - yes, the 1998 agreement, clause 18, Spread of Hours, I think. It is on page 6 of the document?---No, I don't believe I had any involvement whatsoever. Even though the title says it is the 1998 agreement, it wasn't certified until 15 February, 1999. The first attempt to have the agreement certified was rejected by the Commission.
**** MICHAEL BOROWICK XN MR PHILLIPS
PN695
Why was it rejected?---I understand, having read Senior Deputy President Watson's decision, that he wasn't satisfied that the employees had access - had a copy or access to a copy of the agreement 14 days prior to the vote. So the first attempt to have the agreement certified failed. And then there was further negotiation on the site. I became involved at some point after the first attempt to have the agreement certified. And was involved immediately prior to 15 February 1999, when the agreement was certified, I think, by the time I was involved - well, during my involvement, clause 18 wasn't an issue.
PN696
What was an issue by the time you were involved?---All those matters to which I referred earlier; the process material work group, the wage claim, and employee levels, as I recall, were the major issues that I dealt with.
PN697
Were you the organiser involved in conducting mass meetings?---Well, once I became the organiser for the site, I was involved in mass meetings of employees, yes.
PN698
At the mass meeting for this agreement, what processes did you go through as the organiser?---I explained - - -
PN699
Concerning the document?---Well, I explained to the employees - - -
PN700
MR O'GRADY: Commissioner.
PN701
THE COMMISSIONER: Yes.
**** MICHAEL BOROWICK XN MR PHILLIPS
PN702
MR O'GRADY: Because that - was given - once again, it is an issue of relevance. I must say I don't understand how the steps that the union went through to get up the predecessor agreement is relevant to the issues in this proceeding, namely, whether or not we are in breach of the clauses of the 7th agreement, as is alleged by the union. Taking it as an extreme, let us assume that the evidence was that agreement wasn't properly explained to employees, or that indeed the 7th agreement wasn't properly explained tod its employees. And somehow impacts upon the validity of its certification. That would simply mean that we are entitled to impose a roster without any of this. It is a question of relevance, Commissioner, and I am just conscious of the time as well, sir.
PN703
THE COMMISSIONER: Right. Yes, Mr Phillips.
PN704
MR PHILLIPS: Commissioner, our view is that one point the company is making is a construction of these clauses, and how you are to indicate - or how you are to view them. The view we have is that is important you understand the context of these, and in particular clause 18, and how it was viewed by our members in the context of how it operates. I don't suggest I am going to linger very long on the issue. I think I only have a few other questions to ask Mr Borowick and move on.
PN705
THE COMMISSIONER: Right. I think the point that Mr O'Grady makes, and I must say it was evident to the Commission in the evidence of Mr Gnatz, and it does raise the issue of the validity of the agreement, if the agreement has not been explained properly, and people have voted on it, and statutory declarations have been signed that says, A, it was explained, then it is a question of the validity of those agreements - the validity of - sorry - of the statutory declaration in which the agreement was certified.
PN706
MR PHILLIPS: Well, I think the union is putting evidence that it, itself, without the obligations of the Act, explain the agreement to its members. The subsequent question, we are saying, is that the employers, whether they created as - and much detail on specific clauses that were being introduced. The main hint that I would put in closing submissions is that clause 18, in EBA7, was not in existence until EBA5. And that EBA4 did not have such a clause, if you like, upon the award, with regard to scope of hours, or the spread of hours.
**** MICHAEL BOROWICK XN MR PHILLIPS
PN707
THE COMMISSIONER: Right. But the - - -
PN708
MR PHILLIPS: And that is the point which we are making about in the context of, do members understand this?
PN709
THE COMMISSIONER: But the same process would have had to have been gone through in 5, 6 and 7?
PN710
MR PHILLIPS: That is correct. And what we are trying to show clearly is that when it was introduced in 5, there was no issue about it until now, when the employer seeks to, what we say, subvert the clause. And introduce a six day roster, and not as the words say, the potential for a seven day roster. I think that is the main context where we are heading. Not disputing the validity of the agreement. It is about a particular clause that came into life for EBA5, 6 and 7, that wasn't in existence in EBA4.
PN711
THE COMMISSIONER: Okay, thank you.
PN712
MR PHILLIPS: Mr Borowick, in the context of the current dispute, what's been your involvement in the negotiations for this dispute on the rosters?---Well, I've been party to discussions with the employer about finding a solution to the dispute and speaking with members about their concerns.
PN713
Do you have a mandate to negotiate on this particular issue and resolve it?---I have a mandate to represent the members but I have made it clear that it is their decision at the end of the day and typically at Insulation Solutions the membership reserves that right for themselves.
PN714
What is your view of the current option of the six-day roster in the context of the current certified agreement?---Well, the clause, as I understand it, talks about the move to a seven-day week operation.
**** MICHAEL BOROWICK XN MR PHILLIPS
PN715
MR O'GRADY: Commissioner, as I understood your ruling when I objected to Mr Gnatz giving this sort of evidence you said, well, he is an employee, it is relevant what he understands the agreement says. The same can't be said for this witness. He is not working pursuant to this clause. In my submission, ultimately what the agreement requires is really a matter for you and what Mr Borowick thinks it means is not of any weight, with the greatest of respect to Mr Borowick because his understanding isn't going to be determinative. It is what the words say or what you determine they mean that is important, with respect.
PN716
THE COMMISSIONER: Mr Borowick - I mean, the clause just doesn't get inserted into an agreement; it is a negotiated clause and although it appears only from EBA5 upwards, if Mr Borowick has been involved in the negotiations, then I think to some degree it is relevant as to what his understanding of the negotiations around the insertion of that clause and what its intent is, I think is important. It is a question of what weight I give it.
PN717
MR O'GRADY: Yes, Commissioner. Obviously, sir, at the end of the day I will be saying that these things have to be read objectively not subjectively and you can have parties - - -
PN718
THE COMMISSIONER: Yes, sure.
PN719
MR O'GRADY: Both parties to a deal might have a very different understanding about what it means. One of them might be disappointed.
PN720
THE COMMISSIONER: Have a look at the debacle at lunchtime, the matter that I had there.
PN721
MR O'GRADY: Indeed, yes, I overheard some of that. But as the Commission pleases.
**** MICHAEL BOROWICK XN MR PHILLIPS
PN722
THE COMMISSIONER: Thank you. Yes, Mr Phillips.
PN723
MR PHILLIPS: If you can answer?---Could you repeat the question?
PN724
In your view with respect to the roster that has been proposed and the impact it has on the certified agreement?---Well, I wasn't involved in the negotiation of the clause and the way it appears but - so I don't have any particular history on this clause but it appears to me and is certainly reflected in comments made to me by the employees that to work five in any seven days the prerequisite of a move to a seven-day a week operation needs to be met.
PN725
Mr Borowick, were you involved from the start in EBA6?---Yes, I was.
PN726
In the context of clause 10 - have you got a copy of EBA6 there, AWU2?---No. I have two copies of EBA5. Thank you.
PN727
If I can take you to page 5 of that document, the employment clause. What was involved in the negotiations of that particular clause?---Of clause 10?
PN728
Yes?---Clause 10 reflects the employment practices on the site that the permanent workforce is supplemented by temporary labour only in certain circumstances, certain limited circumstances.
PN729
Were you involved in drafting that provision?---Yes, I was. It also states in subclause 10(a) that the company confirms their commitment to full-time, permanent employment. There is no casual employment clause in the agreement.
PN730
Is there any part-time clause in the agreement?---Agreement was reached to delete the part-time employment clause - - -
**** MICHAEL BOROWICK XN MR PHILLIPS
PN731
I think that was clause 22 on EBA5?---Yes, there was agreement reached to delete the part-time employment provisions because the company believed they had no requirement to use part-time employees and - - -
PN732
Do you recall why it was agreed to include temporary labour?---As I understand it, as has been explained to me, the company had - - -
PN733
MR O'GRADY: Commissioner, I don't mean to be painful about this but now the witness is not giving us evidence about what he understood to be the situation but, rather, what somebody else told him was the situation and, on the basis that you have ruled, I would say that that is not relevant, with respect.
PN734
THE COMMISSIONER: Yes.
PN735
MR PHILLIPS: Commissioner, as I understood Mr Borowick was involved in the negotiations of this agreement - - -
PN736
THE COMMISSIONER: Six?
PN737
MR PHILLIPS: Yes. And that he was part of drafting that particular provision and I just want to understand why it was agreed to, considering it hasn't been in previous agreements.
PN738
THE COMMISSIONER: Okay.
PN739
MR PHILLIPS: I don't see a major point turning on it but - - -?---Well, in my experience, there has been no casual employees utilised on the site. There has only been temporary employees for limited purpose. And subclause 10(f) excludes the utilisation of any other form of agreement other than explicitly provided for by this agreement. So the clause was crafted to exclude part-time employees and casual employees and fixed term and specific task employment.
**** MICHAEL BOROWICK XN MR PHILLIPS
PN740
So what do you say it can be used for?---I should also add that whilst it talks about "other form of employment", in our view, it would imply there wouldn't be use of labour hire employees either and that temporary employees would only be used to cover the absence of permanent full-time employees absent from the - by virtue of workers compensation, long service leave and sick leave.
PN741
Mr Borowick, if I could take you to clause - - -
PN742
THE COMMISSIONER: But that is not what it says. That is not what it says. It says:
PN743
The use of temporary labour to supplement existing labour as required is a vital part of the flexibility required to operate the business in the most efficient manner. Temporary employees may be engaged for periods of more than two weeks at a time.
PN744
The only reference to the annual leave, sick leave and workers comp or long service leave is in the context of a minimum of one week?---Commissioner, in my experience with the site since 1998, temporary employees have only ever been used to cover full-time employees utilising workers compensation leave, long service leave and sick leave and in that period since 1998, during my direct involvement with the site, the employer has never utilised casual employees.
PN745
But that doesn't mean to say that they couldn't or they can't if one goes by the wording in the agreement. It is just that the circumstances, it would appear, only became available to cover the long service leave and workers comp and sick leave and annual leave, etcetera?---Commissioner, this is one of the most talked about clauses in the agreement and that was its intention. Whether or not it says that, that is what its intention was and that is the way it has always been applied since - in my experience since 1998 and I don't believe anyone can point to an example where casual employees have been used or where temporary employees have been used other than in circumstances to cover full-time employees on workers compensation, long service leave, sick leave.
**** MICHAEL BOROWICK XN MR PHILLIPS
PN746
Well, then if that was the case and if you look at EBA6, EBA6 says about covering compensation, sick leave, etcetera for a period of one week. It doesn't have, "Temporary employees may be engaged for periods of more than two weeks at a time." So that is a new provision. Subclause (e) is a new provision. Now, that would have been negotiated and during the negotiations I am sure the union would have said, well, why do you need that?---It has always been settled ground, no disagreement between the parties, that temporary employees would only be used for those limited purposes. That is the way it has applied - - -
PN747
But that is not what the agreement says. EBA6 doesn't have that provision, "Temporary employees may be engaged for periods of more than two weeks at a time". That is a new provision in EBA7 and it would have had to have been negotiated?---Yes, it was.
PN748
Right. So what was the purpose of it?---The purpose was because a person - a temporary employee came - was utilised to cover for a particular person, let us say on workers compensation. That person returned from workers compensation as another employee was going on long service leave. As that employee returned from long service leave, another employee was going on sick leave. So the temporary employee was there to cover for a different person but stayed on the site and what was happening was they would be there for a period of two weeks, they would finish on the Friday night and a new contract of employment would commence on the Monday morning and an employee could be there under successive fixed term contracts for periods of in excess of 12 months. So it got to the end of the year. All the permanent employees were - there was a shutdown. The employees were utilising their annual leave but the temporary employee who had been on this revolving two-week contract and being paid out the annual leave at the end of every contract period, the fortnightly contract period, wouldn't have accumulated any annual leave and therefore would have to take the holiday period without any paid leave. So we agreed, the union and the employees agreed, that a contract could go for longer than two weeks. If it could be foreseen that the workers compensation would go for six weeks, well, then the employee would be offered a six-week contract rather than a two-week contract. And it was to try and assist the employee rather than having their entitlements paid out on a
**** MICHAEL BOROWICK XN MR PHILLIPS
Friday night and starting again on a Monday morning, that they would actually have a chance to accrue some entitlements. It wasn't introduced as a way of undermining what - or altering the nature of the use of temporary employees on the site.
PN749
Why couldn't have subclause (g) covered that, because subclause (g) simply says a minimum of one week; it doesn't say a maximum? Anyway, let us move on, Mr Phillips?---There was a change somewhere. That provision was altered to allow people to be there in excess of two weeks.
PN750
MR PHILLIPS: I was questioning Mr Borowick concerning EBA6 and you have pointed out an amendment that was made on EBA7. There were similar amendments which we are saying from EBA5 to 6 to 7 that have an impact on a potential roster and I am just dredging through those.
PN751
THE COMMISSIONER: Yes.
PN752
MR PHILLIPS: Mr Borowick, if I can take you to clause 16 of EBA6. I think that is on page 8 of the copy I have, clause 16, rostered days off?---Yes.
PN753
Is that a new provision?---Yes.
PN754
Could you explain why that provision was included in your negotiations?
PN755
If it assists the Commission, we don't take issue with the descriptions of events that Mr Gnatz gave as to the background by which clause 16 was inserted, and that might be a way of expediting matters.
PN756
THE COMMISSIONER: Right. Does that help you, Mr Phillips?
PN757
MR PHILLIPS: Yes, it does, Commissioner. I think they are all the questions I have, Commissioner, at the moment.
**** MICHAEL BOROWICK XN MR PHILLIPS
PN758
THE COMMISSIONER: Thanks, Mr Phillips. Yes, Mr O'Grady?
PN759
PN760
MR O'GRADY: Mr Borowick, can I just start off with this issue of temporary employees. Were you aware of a Mr Tom Todd, who retired from Insulation Solutions?---No.
PN761
Do you take issue with the evidence that will be given by the company that when he retired, temporary employees were used to do the work that he had been performing?---I don't know Mr Todd.
PN762
That is fine. What about a Mr Gerard Cooper, are you aware that when he left Insulation Solutions - these are both wool-line employees - temporary employees were used to undertake duties that they had undertaken?---No, I am not aware of that, no.
PN763
So you don't dispute - if the company gives evidence along those lines, you wouldn't dispute that?---They gave evidence that they were in breach of the agreement.
PN764
No, no, no, Mr Borowick, let us not play games. If the company gave evidence that those individuals, when they left, were replaced by temporary employees, you couldn't dispute that, could you?---No one has brought it to my attention that - - -
PN765
So the answer to my question is yes, sir?---Yes.
**** MICHAEL BOROWICK XXN MR O'GRADY
PN766
Thank you. And with respect to Mr Gnatz, are you aware that he was initially engaged on a temporary basis?---Yes, I am aware of that.
PN767
And that occurred in 1998 on the first time?---I am not - I don't know when he was employed as a temporary.
PN768
Do you take issue with the fact that he was initially engaged in about May 1998, he finished that engagement in September 1998 and then he was re-engaged, once again as a temporary, in February 1999?
PN769
MR PHILLIPS: Commissioner, I think we have established this elsewhere. I am not sure how Mr Borowick can assist in that particular aspect.
PN770
MR O'GRADY: Well, the questioning goes to this: Mr Borowick has asserted in unequivocal terms that since 1998 no employee has been engaged on a temporary basis, other than in the - - -
PN771
THE COMMISSIONER: Covering workers comp, sick leave - - -
PN772
MR O'GRADY: - - - limited circumstances set out in 10(g). And I am asking him whether he is aware of Mr Gnatz's employment.
PN773
THE COMMISSIONER: Okay. Keep going.
PN774
MR O'GRADY: Are you aware of the fact that Mr Gnatz was engaged on those two occasions?---I know Mr Gnatz was initially employed as a temporary employee but I am not aware of the dates.
PN775
I put it to you that Mr Gnatz wasn't engaged on the second occasion to fill in for any employee who was undertaking either workers comp, long service leave, annual leave or sick leave?---I am appreciative of the information.
**** MICHAEL BOROWICK XXN MR O'GRADY
PN776
So, once again, you don't take issue with that proposition?---No, but I will have it investigated.
PN777
Is there a threat entailed in that, is there, Mr Borowick?---No, I didn't make a threat.
PN778
If my instructions are correct regarding Mr Gnatz and Mr Todd - sorry, and the employees who replaced Mr Todd and the employees who replaced Mr Cooper, it would appear that you were incorrect when you asserted that since 1998 nobody has been engaged other than - on a temporary basis other than in the circumstances set out in clause 10(g). Would you accept that?---No one has brought it to my attention.
PN779
The answer to my question is yes, I take it, Mr Borowick?---If what you are saying is correct.
PN780
Yes. Thank you. Do you accept, Mr Borowick, that there is no limitation in the award on the days upon which ordinary hours can be worked?---I haven't consulted the award on that point so I couldn't answer the question.
PN781
So you are unaware about whether there is or isn't?---That is correct.
PN782
Okay. Do you accept that there is no limitation in the enterprise agreement upon the days upon which ordinary hours can be worked? Nowhere in the enterprise agreement does it say ordinary hours must be worked Monday to Friday, does it?---Well, I can say - I can give evidence on what basis we entered into the agreement.
PN783
Mr Borowick, I am basically not very interested in your evidence as to what basis you entered the agreement. I am interested in what the agreement says. And I am putting to you that there is nothing in the agreement that says that ordinary hours have to be worked Monday to Friday, is there?---I just need to have a look at the agreement.
**** MICHAEL BOROWICK XXN MR O'GRADY
PN784
Well, if you don't know, please tell me you don't know. Do you know?---I am going to have a look at the agreement.
PN785
Do you know? You are giving evidence - - -
PN786
MR PHILLIPS: Commissioner, he has got the agreement in front of him. I think he has the opportunity to read - - -
PN787
THE COMMISSIONER: Well, it is a reasonably straight-up question and it is no repercussions against Mr Borowick if he doesn't know.
PN788
MR PHILLIPS: No, I just - give him an opportunity to actually look at the provision?---I don't have the current agreement with me.
PN789
THE COMMISSIONER: Trust me, Mr Borowick, the Commission is here to help you. It doesn't?---Thank you, Commissioner.
PN790
MR O'GRADY: Now, you have got the current agreement before you, Mr Borowick?---Yes, I do.
PN791
Perhaps if we start with clause 2. That sets out the objects of the agreement?---Yes.
PN792
And I put it to you that there is an emphasis on flexibility that appears in those objects?---I can't see any reference to flexibility.
PN793
I see. You don't think, for example, Mr Borowick, that the first sentence in the third paragraph appearing on the second page of the copy you have got:
**** MICHAEL BOROWICK XXN MR O'GRADY
PN794
Insulation Solutions and its employees who are members of the AWU Glass Container Branch agree to that the challenges facing the enterprise must be met by continuously innovating as the needs of customers change -
PN795
reflects an emphasis upon flexibility?---It is just one of those motherhood statements that appears in most enterprise agreements.
PN796
What about the next paragraph:
PN797
It is agreed that work practices and arrangements that inhibit taking advantage of new opportunities are at a cost to the enterprise and unacceptable in the new market environment.
PN798
Do you agree that that reflects an emphasis upon flexibility?---I don't think it is a commitment to open-ended flexibility. I am not sure what you mean by flexibility, but it is certainly not an open-ended commitment.
PN799
Well, it is certainly a commitment, isn't it, Mr Borowick, that work practices and arrangements that inhibit the taking advantage of new opportunities are unacceptable? That is what you agree to in that paragraph, isn't it?---I think it is a reference to flexibilities which appear in the agreement.
PN800
Well, I put it to you, Mr Borowick - and you have told us what you were hoping to achieve out of this agreement - the employer could be forgiven for thinking that the union had agreed with it that work practices and arrangements that inhibit the taking advantage of new opportunities were unacceptable?---It wasn't an agreement to open-ended flexibility or even flexibility to which we weren't aware. It is not a blank cheque.
PN801
Well, where does it say that? Where does it say only insofar as you raise these things with us?---Well, I don't believe it does but I am telling you from my perspective as the person that negotiated the agreement on behalf of the AWU that it wasn't a blank cheque.
**** MICHAEL BOROWICK XXN MR O'GRADY
PN802
Do you agree with me that the employer might have had a different perspective?---Well, in enterprise bargaining negotiations the employer comes with a list of claims, as does the union. We work through the claims and changes sought by either side are reflected in the agreement voted upon.
PN803
They are reflected in the words used. That is right, isn't it?---Yes - yes, and I don't believe these words open the union or its membership to unforeseen change.
PN804
That might your view of the things but the reality is that in these negotiations both sides have things they want to achieve, negotiate through the wording; ultimately they agree upon the wording and that is what is voted upon and that is what is certified. That is the way it works, isn't it, Mr Borowick?---Yes, that is correct.
PN805
Could you turn to clause 10, Mr Borowick. One of the words that you agreed upon in this agreement is set out in clause 10(d), isn't it, or some of the words that you agreed upon in this agreement are set out in clause 10(d); you agreed upon those words, didn't you?---Yes, that is correct.
PN806
Yes, and those words are without limitation other than the "as required", that is the only limitation upon the use of temporary labour?---Well, I had a fair deal - fair involvement in drafting this clause - - -
PN807
Yes?---And what was intended was - - -
PN808
Well, no, just answer my question. Let us focus on the words. The words are without limitation, aren't they?---It wasn't meant to - if that's the case, it wasn't meant to be that way. It was meant to be read with other subclauses of clause 10.
**** MICHAEL BOROWICK XXN MR O'GRADY
PN809
Well, it doesn't say that, does it, Mr Borowick? It doesn't say: look, when you are reading clause 10(g) you can have regard to clause 10(d). There is no nexus in the clause between clause 10(d) and clause 10(g), is there?---Well, on the face of it, there may not be.
PN810
Right?---But the reason those words were acceptable to the membership of the union is because it had to be read in conjunction with (g).
PN811
Well, why didn't you say that; why didn't you say at the top, look, 10(g) is the only basis upon which you can engage casual labour but, within the confines of 10(g) we are happy to make the propositions we make in 10(d) and 10(e)?---We didn't have the benefit of legal counsel, but we all understood what clause 10 meant.
PN812
You see, I put it to you that the natural way of reading clause 10 is it confers a general power upon the company to engage temporary labour, and then there is a specific issue set out in 10(g), namely the need to supplement labour when people are on Workers Comp, long service leave, annual leave, etcetera?---Well, I reject that wholeheartedly. It isn't - that spin is an attempt to turn the agreement on its head.
PN813
I see?---The clear understanding of the parties - - -
PN814
Well, Mr Borowick, once again, sir, I am interested in words not your understanding. You accept, don't you, Mr Borowick, that once there have been discussions about the move to this six day roster, the negotiating team on behalf of the employees have put a proposal that would allow temporary employees to be engaged for the purpose of the trial?---I am sorry, could you repeat the question?
PN815
Sorry, it was a long question. I apologise for the length of it?---Well, it's just that you didn't let me finish the previous question.
**** MICHAEL BOROWICK XXN MR O'GRADY
PN816
Well, I am sorry, I will focus on this question. Do you accept that as part of the negotiations over the move to the new roster there has been a proposal from the employees, or their negotiating team, that contemplates the use of temporary employees for the purposes of the trial?---Yes, that is correct.
PN817
And those temporary employees would not fall within any of the categories set out in 10(g), would they?---That is correct.
PN818
The concern that has been expressed with respect to those temporary employees are that at the conclusion of 12 months they have the option to be made full time employees; that is one of the concerns. Do you accept that?---Yes.
PN819
And the other concern is that full time employees have priority with respect to key positions, I think was the evidence that Mr Gnatz gave earlier; do you accept that?---Yes.
PN820
Thank you?---For the - I haven't finished my - - -
PN821
Mr Borowick, you will have a chance - - -?---I haven't finished my answer.
PN822
Well - - -?---My answer is - - -
PN823
Your answer to my question was, yes. And you will have an opportunity in re-examination to explore things if your counsel believes it is appropriate?---Well, it is either you want me to answer the question or you don't. I hadn't finished.
PN824
Well, was the answer to my question yes or no?---For the - you asked me whether - it is yes, but it is not the full answer. I am about to give you the rest of it.
**** MICHAEL BOROWICK XXN MR O'GRADY
PN825
Well, perhaps my friend can explore it in re-examination if he wishes to?---Well, I want to put this.
PN826
THE COMMISSIONER: Well, Mr Phillips can follow up on that with you, Mr Borowick.
[4.07pm]
PN827
MR O'GRADY: I put it to you, Mr Borowick, that clause 10F clearly contemplates that temporary employees might be engaged on a period - on a continuous basis for 12 months or more?---Yes.
PN828
And the effect of clause 13 - and once again, Mr Borowick, if you don't know the answer then please tell me. But I put it to you that once again the effect of clause 13.3 of the award is that if that happens they will be given the opportunity to become ongoing employees. Do you accept that?---Yes.
PN829
Yes. Now, just so that I understand the position, Mr Borowick, is it your position that - and this is clause 18, sir, so if you want to have that in front of you - that clause 18(c) provides that the ordinary hours for employees will be a 35 hours per week. Is that - that is your understanding of the effect of the clause?---That is correct.
PN830
Yes. And that it is only where there is a move to a seven day a week operation that these hours can be worked on any day other than Monday to Friday. Is that what you say?---Well that should be the position; whether or not the words say that is another thing.
PN831
No, no - well the words don't say that, do they, Mr Borowick?---That has always been the understanding of the employees on the site.
**** MICHAEL BOROWICK XXN MR O'GRADY
PN832
Well you weren't involved in the negotiation of this clause, were you, Mr Borowick?---But it has been the understanding of the employees whilst I have been the organiser.
PN833
You have gone around and asked each and every employee and you have said, what do you understand by clause 18(c). Is that what you are telling the Commission?---Well, I am sure if the - - -
PN834
Well, Mr Borowick, did you understand my question?---I am sure you can repeat it for me.
PN835
Did you go around to each and every employee and take them to clause 18(c) and tell me - and ask them, tell me what you understand by this clause?---Not each and every employee, but I do have a fair contact - fair deal of contact with the employees on that site. I certainly couldn't give evidence that I have spoken to every one of them about it.
PN836
Now, in your witness statement you say that the proposed roster is for a 36 hours of ordinary time, per week. It is paragraph 7, Mr Borowick?---Well that statement is incorrect.
PN837
It is. It is incorrect, isn't it. The proposal is for 35 hours ordinary time with one hour's overtime to be worked in each week. Clause 21, Mr Borowick, of the seventh agreement. I understand from Mr Gnatz that this was a, if you like, a hard fought over clause. Would you agree with that assessment?---Yes, that is correct.
PN838
Yes. And that accordingly there was a fair bit of work done by both sides upon the words chosen in the clause. You would agree with that?---There was a fair deal of work put in.
**** MICHAEL BOROWICK XXN MR O'GRADY
PN839
I put it to you that it is just commonsense, Mr Borowick, that if you have got an issue that is contentious, both sides are going to take particular care to ensure that the words accord with their intention?---Whether they are completely satisfied is another thing, but we did take a great deal of care.
PN840
And would you agree with me that clause 21 - I know you have given some evidence about clause 2, but at the very least you would have to agree with me that clause 21 has an emphasis upon workplace flexibility?---Well it says:
PN841
This agreement provides for measures to implement workplace efficiency
PN842
Yes.
PN843
Well, I don't want to be unfair to you, Mr Borowick, so perhaps if you read the entire clause, if you haven't already done so, so that I can ask you some questions about it?---Well, I think - yes, I have read the clause.
PN844
All right. Well, the first thing that you agreed to in this wording is to the operation of the entire plant in the most cost effective manner. This was agreed to wasn't it?---Yes, that is what the clause says.
PN845
And the next thing you agreed to, and this is clause B is, and this is the second sentence:
PN846
That the parties to this agreement do not seek to limit the flexibilities available to Insulation Solutions under this agreement.
PN847
?---I am sorry, what?
**** MICHAEL BOROWICK XXN MR O'GRADY
PN848
This is the second sentence of 21B?---Yes:
PN849
I can see that this agreement provides for measures to implement workplace efficiency - - -
PN850
Yes?---Yes, I can see that.
PN851
Yes, efficiency, and then it says that:
PN852
The parties to this agreement do not seek to limit the flexibilities available to Insulation Solutions under this agreement.
PN853
It is the second sentence?---There was a great deal of nervousness surrounding clause 21.
PN854
I think we understand, this was a contentious issue and the parties, if you are right, have to thrash out a deal and they took particular care over the wording. I think that evidence is pretty clear. But do you accept that at the end of that process the words that emerge from that process acknowledge that the parties will not limit the flexibilities available to Insulation Solutions under the agreement?---The reason people were nervous about this clause 21 is because they believed it could be the instrument by which the company would overturn long term conditions of employment.
PN855
They might be nervous about it. They might not be happy about it, but at the end of the day they agreed to it, didn't they, Mr Borowick?---Well, they agreed to these words but they didn't agree that Insulation Solutions could turn the place upside down; and that is why we didn't reach agreement as fast as we should have been because people were just particularly nervous, and it appears to be with some justification.
**** MICHAEL BOROWICK XXN MR O'GRADY
PN856
It was a protracted process, it was a painful process, but at the end of the day the words were agreed upon, weren't they?---The words were agreed upon because the company gave us verbal commitments that they weren't planning to turn the place upside down; and otherwise we would still be arguing about the words.
PN857
See, I put it to you that the clear purport of those words is that if the agreement enables the company to introduce flexibilities then there will be no attempt by the union to limit the company in that regard?---Well, in respect to the negotiation of this clause which we spent hours and hours and hours on, and I think this - - -
PN858
Sorry, Mr Borowick, once again I'd ask you to focus on my question. The clear purport of the words that you ultimately agreed upon is that if the company wishes to, under the agreement, introduce flexibilities, then there will be no attempt by the union to limit it in that regard?---That is not the intention of the words.
PN859
That is what the words say, isn't it, Mr Borowick?---Well if they do that is not what its intention was, and we debated that point over and over.
PN860
And in clause 21C the union recognised that changes introduced over recent years have benefited all concerned. Do you accept that?---Yes.
PN861
And the union also recognised that the change process is ongoing. Do you accept that?---The union has been part of the change process on that site.
PN862
Mr Borowick, once again, my question I think was a pretty simple one. The union recognise that the change process is ongoing?---We do; and it wouldn't happen without us.
**** MICHAEL BOROWICK XXN MR O'GRADY
PN863
And you accept, Mr Borowick, that - or do you accept that the company seeks to move to a six day roster system because of the business opportunities that the current market presents to it?---Well that is what has been explained to me by the company.
PN864
And that as a result of making this change there would appear to be some 20-odd jobs that are going to be created. Do you accept that?---Well that is what I have been advised by the company.
PN865
And that if, at the end of the trial, things are still going well those temporary employees will become permanent?---That is what I have been advised.
PN866
Do you accept, Mr Borowick, that the current practice, the current roster, entails an averaging of the 35 hours over a two week period?---I only learned of that just recently.
PN867
Whether you heard of it five minutes ago or five years ago, Mr Borowick, do you accept that that is what happened?---Well, that is what has been - that is what I have been told. I assume it is correct.
PN868
It has been the case since 1982?---I am unaware of that.
PN869
You are unaware of that?---You have been around - sorry. You have been involved in these negotiations, you have told us, since the sixth EBA. That is right?---Since the fifth.
PN870
I am sorry, since the fifth. And yet a fundamental issue, like the averaging out of the 35 hours over a two week period you were unaware of?---That is correct.
PN871
Are you aware that people are regularly working overtime?---Yes.
**** MICHAEL BOROWICK XXN MR O'GRADY
PN872
And do you dispute that that is in the vicinity of 11-1/2 hours a week or thereabouts on average?---I am unaware what the average is.
PN873
Do you accept that working of excessive overtime can have detrimental - a detrimental impact on the health and safety of employees?---Yes.
PN874
And that one of the consequences of the introduction of the roster that the company is proposing is to enable that - the current workload, to be shared around through additional employees?---That has never been put to me as one of the justifications.
PN875
No I didn't ask you that. But that would be one of the impacts, won't it?---I am not sure about that.
PN876
Not sure about that. Certainly, that would be a desirable outcome as opposed to increasing overtime on people who are already working in excess of 10 hours a week overtime. It would be desirable to take on new staff to do the work. Do you accept that?---No.
PN877
You don't accept that. With respect to the certification of the seventh EBA, the union, of course, had to file a stat dec prior to a certification. Are you aware of that?---Yes.
PN878
Yes, that is the process, isn't it. And are you - do you know a Ms Zoe Angus from your union?---Yes, I do.
PN879
Could the witness please be shown exhibit IS4, please. Could you turn to the last page for me, please, Mr Borowick. Does that appear to be Ms Angus's signature?---I am not familiar with her signature.
**** MICHAEL BOROWICK XXN MR O'GRADY
PN880
I see. Do you have any - I can indicate to you that this has been uplifted from the Commission's files. Do you have any reason to suspect that it is not - - -?---No.
PN881
- - - a stat dec sworn by or made out by Ms Angus?---No.
PN882
Could you turn to page 4 for me, please. And in the bottom third of the page, you will see there the question is:
PN883
Describe the steps taken to ensure that employees have ready access in writing to the agreement and understood the terms of the agreement
PN884
Do you see what Ms Angus has written there?---Yes.
PN885
She certainly had no concerns about the steps that were taken to inform the employees about the agreement and its terms, did she?---It appears not.
PN886
No. Well she wouldn't have just made that up, would she?---I doubt it. No.
PN887
It is quite a serious thing to make out a declaration for the purposes of certifying an agreement?---Very serious.
PN888
Do you say that with a degree of sarcasm, Mr Borowick?---No.
PN889
I have no further questions, Commissioner.
PN890
THE COMMISSIONER: Thanks, Mr O'Grady. Yes, Mr Phillips.
**** MICHAEL BOROWICK XXN MR O'GRADY
PN891
PN892
MR PHILLIPS: Mr Borowick, if I can take you to clause 2 of enterprise agreement number 7?---Yes.
PN893
Has the company often raised this particular clause to you in negotiations?---No, I don't believe it has ever been focused on negotiations. I think the only change was where it says:
PN894
Insulation Solution Echo Pink for sustainable living
PN895
I think there was something else there in place of that, but - - -
PN896
It is not important to go through that. With respect to the current situation where the company has put to you a new roster, did they say to you that they are basing it upon that clause?---No.
PN897
Tell you it is a fundamental reason why they seek change because of that clause?---No.
PN898
What is your view of that particular provision?---It is just something that sits there that rolls from one agreement to the next without any consideration.
PN899
Apart from the amendment which you mention, which is the changing of the vision statement, how many agreements are you aware that that provision is contained in?---I don't know how many - - -
**** MICHAEL BOROWICK RXN MR PHILLIPS
PN900
That you are aware of?---I don't know the answer to that.
PN901
Do you believe it is a particularly fundamental provision with the operation of the agreement?---No.
PN902
Do members raise questions about that provision to you on site?---No, I don't believe I have ever discussed it with any employee.
PN903
Mr O'Grady asked you some questions concerning clause 21. Has the company ever provided to you the optimum - I will restate that - the optimal cost effective manner to run the place? Could it have provided you with a slide show or a document showing this is a business plan for a cost effective - the most cost effective manner in operating the entire plant?---There was a slide show which the company presented at the commencement of the negotiations surrounding the current dispute, but I don't believe it went to the matters of the business plan, though. I don't believe that to be the case.
PN904
In the context that changes occur on site, say for example a technological change, how would the parties sit down and develop the changes required, from your perspective?---The employer would advise the union and we'd sit down and have a discussion.
PN905
Would they advise you through clause 12, Workplace Change?---I'd hope so. There has - consultation has been an issue in the past the union has complained that consultation hasn't been of a sufficient quality. So in the current agreement we negotiated a consultative committee clause. Previously there hasn't been a consultative committee at the site. The current agreement introduced that change, which the company initially resisted, but then agreed to.
PN906
In the context of the current roster, the six day roster proposal which I think is IS1, has the company consulted with employees about what it may do to their rostered days off?---No, I don't believe so.
**** MICHAEL BOROWICK RXN MR PHILLIPS
PN907
From your perspective as an organiser, do you think the roster would have an impact on that provision?---Well, there has been discussion. The company - when we talk about a rostered day off we talk about the fixed rostered day off, which the entire site observes. The company, Insulation Solutions, talk about when you are rostered on and when you are rostered off, in terms of a shift arrangement. So it is - the discussion has been, sort of, at cross purposes and somewhat confusing. We don't believe the day you are rostered off, as part of a shift roster, is necessarily the same thing as a rostered day off, which the entire site observes, and which has been the current practice for some years.
PN908
With regard to temporary employees, particularly at clause 10 of the agreement, and whilst negotiating within the dispute over the rostered days off, what has been the position of the union and its negotiators concerning temporary employees?---I put to the company that the use of the temporary employees in the manner that they sought was outside the terms of the agreement and any agreement that we reached should be reflected in a variation to the enterprise agreement, the current enterprise agreement.
PN909
So you saw that as a negotiation that could change the terms and conditions of this agreement?---The company position was that we could just reach a written agreement that would be read in conjunction with the certified agreement, and that would apply till December, to the nominal expiry date. My response was that, no, we should seek to have the current agreement varied in accordance with the terms of the Act.
PN910
With the current proposal of the six day roster has the company provided you with information as to the changing customer demands or other efficiency requirements as to why it is a six day roster and not a seven day roster or any other roster?---There has been some explanation; I wouldn't say information. There has been some explanation.
PN911
Mr O'Grady took you to IS4 which is the statutory declaration of Ms Zoe Angus, and particularly took you to page 4 of that in 6.1. Do you still have that in front of you?---Yes, I do.
**** MICHAEL BOROWICK RXN MR PHILLIPS
PN912
Do you believe, as an organiser of the AWU, that the Act gives you obligations with regard to describing the agreement, or the union has obligations under the Act?---I think there is some obligation on the union. Yes.
PN913
As a member of a union can they ask you questions about the agreement?---Yes.
PN914
How would you normally facilitate questions about the agreement?---Well, in terms of the '98, 2000, the 2000 agreement I have been questioned by employees at meetings.
PN915
Is the union opposed to 22 people being employed at the company?---No. That is why we have sought to reach agreement surrounding the concerns that we have had.
PN916
I don't think I have any further questions, Commissioner.
PN917
THE COMMISSIONER: What was the question that you wanted to expand on from Mr O'Grady, Mr Borowick, can you recall?---Yes. It was the point I have just covered about my advice to the company that we believe they were acting outside the terms of the agreement for that - in terms of the temporary employees, the utilisation of the temporary employees and I advised the company that the AWU position was that a variation to the agreement should be sought.
PN918
PN919
THE COMMISSIONER: Is that all, Mr Phillips?
PN920
MR O'GRADY: Yes, from the AWUs perspective, that is all of the witnesses we call, Commissioner.
PN921
THE COMMISSIONER: Thank you. Yes, Mr O'Grady.
PN922
MR O'GRADY: Commissioner, I note the time. May I inquire what time you intend to sit to? Obviously we are appreciative of the expedition by which the Commission has brought this on, given that there is a proposal to implement this at the end of the month, but I just would ask for an indication if the Commission is prepared to give one, as to whether you intend to sit later this evening, and we are of course happy to do that, or what the Commission proposes to do?
PN923
MR PHILLIPS: Commissioner, if I may - - -
PN924
THE COMMISSIONER: Yes, Mr Phillips.
PN925
MR PHILLIPS: I have the lucky privilege of being the father of twins who are in child care at the present, and I would need to ensure that they can be picked up.
PN926
THE COMMISSIONER: Sure.
PN927
MR PHILLIPS: I only raise that as a matter of urgency considering you have to ring to be able to try and pick them up.
PN928
THE COMMISSIONER: How long do you think Mr Knowles will be required and then submissions?
PN929
MR O'GRADY: With respect to Mr Knowles's evidence, I don't intend to spend very much time in-chief at all with him.
PN930
THE COMMISSIONER: All right.
PN931
MR O'GRADY: Obviously I can't speak for Mr Phillips. Submissions, there are a number of issues, Commissioner. I would have thought they would probably be - my submissions would be in the realm of sort of half an hour or thereabouts.
PN932
THE COMMISSIONER: Right.
PN933
MR O'GRADY: But, once again, that would depend a little bit on the way in which Mr Phillips puts his case.
PN934
THE COMMISSIONER: Yes. I suppose it is how long is a piece of string, Mr Phillips.
PN935
MR PHILLIPS: That is a dangerous question to ask me in this environment, sir, with regard to witnesses, Commissioner.
PN936
THE COMMISSIONER: What is the availability of people say at about 2.30 tomorrow, and then going on to completion?
PN937
MR O'GRADY: Now it is my turn to have a personal problem, Commissioner. I am booked on an aeroplane, down to sunny Hobart, that apparently requires me to be at the airport at about 5 o'clock tomorrow.
PN938
THE COMMISSIONER: Otherwise you don't get your seat and you don't get your money.
PN939
MR O'GRADY: Indeed, and it is with a new carrier, Commissioner, and they are very strict I have heard about these things.
PN940
THE COMMISSIONER: I have heard the radio reports, myself.
PN941
MR O'GRADY: Yes, yes, Commissioner. I apologise for that, but that is the position that I am in.
PN942
MR PHILLIPS: Unfortunately, Commissioner, I have a matter at 2 o'clock that I have to deal with that would proceed for an hour. But that would require in the realm of a 35 minute drive to get back to the Commission.
PN943
THE COMMISSIONER: Right. I suppose - who is keen to sit Sunday?
PN944
MR O'GRADY: Commissioner, I won't have returned.
PN945
THE COMMISSIONER: You are not back. I am sorry.
PN946
MR O'GRADY: I would be happy to otherwise. And I am grateful for the Commission exploring these avenues. If arrangements were able to be made regarding Mr Phillips's obligations and if the Commission were willing we are, of course, happy to sit later this evening, if that suits. I appreciate you have had a long day, Commissioner, with one thing and another.
PN947
THE COMMISSIONER: I can do it Tuesday, but that would mean then that if I understand what the company's intentions are, and it may mean then that whatever decision I come down with simply might be a single page but obviously I will provide for detailed reasons later on. Otherwise I am just not going to be able to get it out in time. Now if that is satisfactory to the parties, I mean, I am happy to sit Tuesday.
PN948
MR O'GRADY: That would be satisfactory to my client, Commissioner.
PN949
MR PHILLIPS: That is satisfactory to the AWU, Commissioner.
PN950
THE COMMISSIONER: Okay. All right. We will make it 11 o'clock Tuesday, the 27th, because that - no, what I will do, I will make it 9.30. I will move the 9.30 matter and that way we can have all day if that is all right. Okay. Is that okay with everyone? Okay. Good. We will stand adjourned till 9.30 Tuesday, 27 July, thank you.
ADJOURNED UNTIL TUESDAY, 27 JULY 2004 [4.39pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #IS1 PROPOSED ROSTERS PN211
EXHIBIT #IS2 7TH ENTERPRISE-BASED AGREEMENT 2002-2004 PN211
TERRENCE MICHAEL GNATZ, AFFIRMED PN252
EXAMINATION-IN-CHIEF BY MR PHILLIPS PN252
EXHIBIT #AWU1 INSULATION SOLUTIONS FIFTH ENTERPRISE BASED AGREEMENT 1998 PN324
EXHIBIT #AWU2 COPY OF THE INSULATION SOLUTIONS SIXTH ENTERPRISE BASED AGREEMENT 2000 TO 2002 PN330
EXHIBIT #AWU3 WITNESS STATEMENT INCLUDING AMENDMENTS PN364
CROSS-EXAMINATION BY MR O'GRADY PN373
EXHIBIT #IS3 CONSULTATIVE COMMITTEE DOCUMENT PN410
EXHIBIT #IS4 STATUTORY DECLARATION OF MS ANGUS PN433
EXHIBIT #IS5 DOCUMENT PN565
RE-EXAMINATION BY MR PHILLIPS PN567
EXHIBIT #AWU4 FOURTH ENTERPRISE AGREEMENT PN574
WITNESS WITHDREW PN663
MICHAEL BOROWICK, AFFIRMED PN679
EXAMINATION-IN-CHIEF BY MR PHILLIPS PN679
EXHIBIT #AWU5 STATEMENT OF M. BOROWICK PN685
CROSS-EXAMINATION BY MR O'GRADY PN760
RE-EXAMINATION BY MR PHILLIPS PN892
WITNESS WITHDREW PN919
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