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Australian Industrial Relations Commission Transcripts |
AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825
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 8893
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT LLOYD
C2004/6106
CSL LIMITED
and
AUTOMOTIVE, FOOD, METALS,
ENGINEERING, PRINTING AND
KINDRED INDUSTRIES UNION
and OTHERS
Application under section 170LW of the Act
for settlement of dispute re whether closure
of 12 hour shifts for ESD mechanical engineers
at CSLs Broadmeadows site results in income
maintenance under attachment 7 to the 1995-1997
Agreement as amended by clause 8.1(a) of the
2004 Agreement
MELBOURNE
12.22 PM, THURSDAY, 28 OCTOBER 2004
PN1
MS M. COOPER: I appear with MR R. MUFFATTI of the CPSU, intervening.
PN2
MS C. CHEW: I appear for the AMWU and we are expecting MR M. ADDISON at a later stage and also appearing with me is MR T. MAVROMATIS.
PN3
MR G. GARDNER: No change here, your Honour, and with me is MR M. McCLELLAND from the company.
PN4
THE SENIOR DEPUTY PRESIDENT: Any objection to leave to intervene?
PN5
MR GARDNER: No, your Honour.
PN6
THE SENIOR DEPUTY PRESIDENT: I will take those as presented. Right, Mr Gardner.
PN7
MR GARDNER: Yes, your Honour. The CPSU in its submission has made an application - has effectively made an application through its submission under section 111(1)(g) of the Act. It relies on particular subclauses of 111(1)(g) which are set out neatly in the CPSUs submission. What the CPSU therefore seeks to do is to have you not exercise your jurisdiction under 170LW. It is effectively saying that you should not proceed with the matter.
PN8
The proper course given that, and I think that Ms Cooper is in agreement here, is for her to effectively go first with that application. I can respond, the company can respond and no doubt the AMWU will have something to say. But given the time constraints on the parties and indeed the Commission, I think the parties are in agreement, that it would make good sense for us to proceed with the substantive application following the hearing of the 111(1)(g) application. If it pleases.
PN9
THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Chew and Ms Cooper, do you have a view on those arrangements for how we proceed?
PN10
MS COOPER: Your Honour, that is satisfactory to us.
PN11
MS CHEW: Yes, that is fine with us too, thank you, your Honour.
PN12
THE SENIOR DEPUTY PRESIDENT: The Commission is satisfied that we proceed on that basis. Ms Cooper.
PN13
MS COOPER: Thank you, your Honour. As the CPSU has made full submissions in relation to its section 111(1)(g) application I only seek to briefly summarise those submissions and we don't want to hold the court up any longer than is necessary. As you will be aware from our written submissions, we rely principally on section 111(1)(g)(5), in particular paragraph (a) of that paragraph. I will just read it out briefly to your Honour. It talks about the particular powers of the Commission and it says:
PN14
The Commission may dismiss the matter or part of a matter, or refrain from further hearing ...(reads)... if it appears -
PN15
subparagraph (3) that we rely on:
PN16
That further proceedings are not necessary or desirable in the public interest.
PN17
And (5):
PN18
That a party to the industrial dispute has breached an award or order of the Commission, or a certified agreement.
PN19
In particular we say that CSL, or it should appear to the Commission that CSL has breached a certified agreement. For the reasons in our written submissions we contend that CSLs actions in unilaterally closing the shift and requiring the affected employees to work a day shift with significantly less remuneration and a disruption to their lives, as the witness statements evidence, has the appearance of a breach of the agreement, in particular the no extra claims clause in 2004 agreement.
PN20
In addition we submit it appears that CSL has breached clause 34 of the 2001 agreement which in our argument requires that any changes to the flexible working arrangements as their shifts have been characterised when they have been implemented by CSL, are to be by agreement. CSL has imposed these requirements without consultation or agreement. In those circumstances and given the decision in Qantas which I refer to in my submissions, which provides that the Commission should do all it can to ensure that parties honour the agreements that they have entered into, we say there are strong arguments in favour of a decision to refrain from further hearing until at least the preliminary threshold issue which we say is the CSLs capacity to even introduce these changes unilaterally, until that issue has been argued and determined if necessary before the Commission.
PN21
Notwithstanding the prima facie right of CSL to have the Commission's jurisdiction exercised, the onus on the applicant under section 111(1)(g) extends only to advancing considerations which balance in the applicant's favour the outcome that is sought and in particular there I refer to paragraph 10 of a Full Bench decision generally known as the Alcon decision. That is decision M3058. I have full copies of our authorities here that I will hand up in conclusion, or now if your Honour requires.
PN22
An examination of the discretion under section 111(1)(g) reveals that there is only required to be an appearance that further proceedings are not in the public interest or an appearance that a party has breached a certified agreement. That is, the Commission is not required to be satisfied there is a breach before it exercises its discretion. In our submission there is sufficient material before the Commission to persuade it to refrain from hearing the matter at least again until these threshold issues have been determined. That is, whether or not there has been a breach of clause 24 or 31 of the relevant agreements.
PN23
In addition in relation to the public interest, for the Commission to hear the matter as it is now before it, might make any decision moot. That is, if on a full hearing of the argument as to CSLs capacity to implement changes unilaterally the Commission were to decide it doesn't have the power, then a decision about whether the clauses of the agreement, the income maintenance clauses apply to these employees, becomes a moot decision. It would not be necessary because of the lack of capacity in CSL to make the determination in the first place.
PN24
However, should the Commission not be persuaded to refraining from hearing the matter the CPSU is concerned that the union parties are not prejudiced in any further argument they might wish to put on that threshold issue. So to the extent that any decision of the Commission in this matter might be regarded as implicitly accepting or condoning CSLs capacity to unilaterally make these changes, we would seek that the Commission given the lack of full argument on that particular issue before it specifically restricts its findings to the application of these clauses of the agreement and makes no findings on the company's capacity or authority to unilaterally impose these conditions, or this new claim.
PN25
In our submission to make such findings explicitly or implicitly will be to deny the union parties the opportunity to put their case on that issue. So from the section 170LW notification it is clear that what the dispute is about is not about the authority or power of CSL to make these changes. It is confined quite narrowly by CSL and relates only to whether the income maintenance provisions apply and whether there is a redundancy. So should your Honour refuse our application to refrain from further hearing we would seek that, as I say, explicitly that issue is quarantined from your decision in relation to the section 170LW application as it is before you and filed by CSL.
PN26
Of course the effect of refraining from hearing the application in our submission would be that the status quo would prevail and that the employees who are effected would either continue to work their 12 hour shifts or continue to work as they are now with the income maintenance applying until the parties could come to some agreement as to how this issue is to be managed. In summary, it is the CPSUs submission that this application is, to use the vernacular, if your Honour excuses me, putting the cart before the horse and in those circumstances we hope to have persuaded the Commission to refrain from hearing it until the preliminary threshold issues of the capacity of CSL to unilaterally impose this claim on its employees has been fully argued and determined.
PN27
Subject to any further questions from your Honour that would be our submission today.
PN28
THE SENIOR DEPUTY PRESIDENT: I just want to appreciate some clarification of your point. I think you are saying about - clarification about the point of quarantine the proceedings. Could you just elaborate on that a bit more to assist me?
PN29
MS COOPER: Sorry, quarantining the argument - well, for example, should the Commission find in favour of CSL that the income maintenance provisions do not apply to these employees, from the CPSUs perspective and I think from the AMWUs perspective too, that would not - it shouldn't affect our argument that CSL cannot impose these changes unilaterally in the terms of the agreements by which they are about at the moment. However, such decision might implicitly be seen as accepting that capacity of CSL to make those changes.
PN30
So our view would be that if you continue to hear the matter, that your decision explicitly acknowledges the union's wish to reserve that matter for further argument so that any decision made would not be seen as implicitly or explicitly making a finding authorising CSL to make those changes.
PN31
THE SENIOR DEPUTY PRESIDENT: Right. And when would you see that further argument being put?
PN32
MS COOPER: It would depend on the other parties but we could prepare that argument relatively quickly. But it may be - the Commission under section 120 isn't constrained to the release sought by the parties. It may be, your Honour, that you would seek us to put those further arguments before you made a determination in this matter. As interveners there is limits I suppose to what we can do in these circumstances. It is not our members who are directly affected at this stage, but in the absence of any denial from CSL I think our concerns are probably well founded in relation to our members.
PN33
It might be that another section 99 is required to be filed for the union involved in this matter, or a section 170LW for that to proceed. Thank you, your Honour.
PN34
THE SENIOR DEPUTY PRESIDENT: Ms Chew.
PN35
MS CHEW: We simply seek to endorse the submissions made by the CPSU on those points. Thank you, your Honour.
PN36
THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Gardner.
PN37
MR GARDNER: Your Honour, can I first deal with the last point made by Ms Cooper in response to your question about the quarantine issue if you like. We don't shy away from the fact that as we see it this application is quite a discrete one. We ask the Commission to address a discrete question. That question is whether posited circumstances are the income maintenance provisions of the relevant enterprise agreement triggered, are the two employees in question entitled to access the income maintenance provisions of the relevant agreement.
PN38
That is the question which we have asked the Commission to address and the reason why is because it became apparent through the course of the dispute that a roadblock if you like to resolving it was a claim at least by the AMWU that the employees in question ought to be able to access these income maintenance provisions. That is what they have said. They have put that in correspondence and they referred specifically to the provision in the enterprise agreement. So we said all right, let us have that question determined and that is what we are asking the Commission to do.
PN39
I apprehend that the CPSU was concerned that the Commission might go beyond that and look at the capacity to make the change in the first instance. Obviously they say there is no capacity to make the change. We say there is no impediment to doing so. But there is no need for your to answer that question because the problem can be looked at solely on whether the income maintenance provisions are triggered under the particular agreement which really cause for a construction of the agreement and I will come to that later in the afternoon when we get to the merits.
PN40
The CPSU and AMWU are asking you not to exercise your jurisdiction. That is not an insignificant matter. The High Court in a decision involving Hoyts which is in the materials put forward by the CPSU confirms that one must be circumspect in looking at this question. It is not a question to be dealt with lightly because prima facie as the CPSU has acknowledged, the employer in this instance has a right to be heard and has a right to access the jurisdiction.
PN41
If there is going to be something to stand in the way of that then it must be a matter of not an insignificant nature. That is our first point. Simply to say when analysing a particular question and analysing issues that they have asked you to address about whether there is a breach and about how the public interest ought to be dictated, that the approach must be viewed cautiously. The second point, your Honour, and it flows from the first but it also has a life of its own and it is this, enterprise agreement or agreements between the parties has a disputes procedure in it when the parties themselves have agreed to come to this Commission to resolve disputes over its application.
PN42
What the unions now want to do because it doesn't suit them is turn around and say no, we don't want you now to hear this matter, this is not something we want you to deal with, and again we say that is something which ought to not be done lightly. They say that the public interest militates against this particular matter proceeding. We would say that if parties in an industrial relations arena can't have confidence that their disputes procedures will successfully call upon the Commission where they have agreed to do so, that that is a matter which impacts the public interest.
PN43
If you reach agreement and you say, well, yes, we will have the Commission involved but then one the parties can front up to the Commission and make an argument, a tenuous argument and say that the Commission ought not be involved, that is a matter which would affect, as I say, the confidence of the parties including Commission involvement in these provisions and for that reason for nothing else is a compelling one, sir, for you to have not accede to the union's 111(1)(g) argument.
PN44
Now, related to this point is whether and how section 111 powers may be accessed by the Commission in this particular circumstance and I would like to deal with that now. There are two Full Bench decisions on the question of whether the Commission's particular section 111 powers are open to it where it is dealing with an LW application. The first involved Qantas and the print number just for the record, sir, if you will just bear with me I will get that, it is PR939695. The second decision on this point is the Full Bench involving Telstra and that decision is PR940569 and it is worthwhile if I take a moment to take you to the Telstra decision.
PN45
MS COOPER: Excuse me, perhaps I could help out here. Not 939696 one, just the other one, the later one.
PN46
MR GARDNER: The Giudice one?
PN47
MS COOPER: Yes. If I could just hand up our authorities I think one of those decisions is in our list of authorities. Only one of the decisions, the 9405691 is the first decision in that folder.
PN48
MR GARDNER: Yes. Can I take you to paragraph 47 of this decision. Well, perhaps I will - - -
PN49
THE SENIOR DEPUTY PRESIDENT: This is the Telstra decision?
PN50
MR GARDNER: This is the Telstra decision. Perhaps if I explain what the decision was about. Telstra was implementing a redundancy process and it had an agreement which dealt in a relatively detailed way about the redundancy process, the timetable, the implications of selection, peer rights, these sorts of things. The CEPU brought an LW application before the Commission where it disputed whether the retrenchments were valid under the agreement and in the first instance they came before his Honour Vice President Lawler made an interim order stopping Telstra from proceeding with redundancies pending the further hearing of the matter. So he put them on hold.
PN51
The question before the Full Bench was whether that course was open. He had exercised the power to make an interim order under section 111 because 111(1)(b), I think it is, provides the Commission with the power to make interim orders and that is what his Honour Vice President Lawler did. Now, what the Full Bench said in the Telstra case was two things. First, it confirmed the Full Bench's decision in Qantas where it said that 111(1) powers are open to the Commission in the LW context, but it also made the very significant point that those powers under section 111 are to be read subject to the agreement of the parties and that is because section 111(2) provides the powers unless the context otherwise requires.
PN52
Now, what we say is where the parties have agreed up front to call upon the Commission to exercise power where there is a dispute over the application of an agreement the Commission must be all the more circumspect in whether it will access these section 111 powers because the context clearly dictates against that. The context dictates in favour of the parties proceeding with this application before the Commission and not having the type of jurisdictional road block which the CPSU and the AMWU are raising today.
PN53
So they are two introductory points about how we say this particular task of viewing access to 111 powers in this context ought to be viewed. I should say that what happened in the Telstra case ultimately was that the decision of Vice President Lawler was overturned because the agreement did not allow for a status quo type scenario. To the contrary, said there would be no obligation to management to stay redundancies where there is a dispute and so it wasn't open for the Commission to cut across that by making an interim order.
PN54
Now, if I could turn to the particular aspects of the CPSUs submission, the written submission, they rely on 111(1)(g). They first rely on 111(1)(g)(5)(a) which I will paraphrase, states that if it appears to the Commission that there is a breach of the certified agreement, or an order, or an award, then the Commission has the discretion to refrain from hearing the matter further. So what is the breach that they rely upon? It seems that they are ascertaining that there are two separate breaches.
PN55
The first breach is that somehow CSL is in breach of the no extra claims clause in the EBA. That is the first and I will come to that in a moment. The second breach which is alleged is that CSL is in breach of clause 34 of the 2001 agreement which is a clause dealing with the treatment of facilitative provisions in awards.
[12.50pm]
PN56
They are the two breaches which are relied upon. Now, can I deal with the breach of clause 34 first, your Honour. It might be of assistance if I might hand up a complete set of the relevant instruments to yourself and to the other side. Your Honour, the 2001 agreement is at tab 5 and it is clause 34 which the unions say has been breached by CSL. The introduction states:
PN57
The purpose of this clause is to provide a consultative process to deal with facilitative ...(reads)... of this enterprise agreement.
PN58
It goes on to talk about how those consultative processes might work and finally it says:
PN59
Where the award is varied as a result of such an agreement the variation may become a schedule to the award.
PN60
So this clause deals with the treatment of facilitative provisions in the CSL Award 1998. The unions say we have breached this clause. If I could now take you to the award which is at tab 7 and the union relies on clause 16.1. Clause 16.1 deals with normal hours of work for full time day workers. The reason why the unions rely on this clause is because it is the only clause which has anything remotely to do with hours of work that is regarded by the award as a facilitative provision.
PN61
Clause 16.1 is a facilitative provision and it is so because you will see in the second sentence or paragraph:
PN62
Work can be done over a reduced number of ...(reads)... averages 36.75 hours.
PN63
Now, what the EBA does, what the enterprise agreement does, is talk about how that agreement is to be reached. They say in doing the change which is being sought we have breached the facilitative provision of the agreement by not engaging in requisite agreement or consultation or whatever and they do so by linking it to 16.1. Now, the point is that 16.1 doesn't deal with the question of shift work and it doesn't deal with the question of the stopping of the shift work.
PN64
16.1 doesn't take them anywhere near to the heart of the issue. It can't be said that we have breached this facilitative provision in the EA because its reliance on clause 16.1 is completely misplaced and so a cursory look at these provisions and this reliance on 16.1 reveals that it does not even appear that there could be a breach because this provision doesn't deal with the question. It deals with the question of normal hours of work for day workers. It doesn't deal with shift workers.
PN65
Your Honour, the second breach which is relied upon or asserted by the unions relates to a 12 hour shift agreement which has the status of an unregistered agreement which was reached back in 1997 which relates to shift workers in the maintenance area. The CPSUs argument here is - well, it is tortuous and that is no criticism of them but it is a difficult argument to make and I will do my best to recast it. What they do is rely on not this unregistered shift agreement but another shift agreement which relates to the Bioplasma area and this other shift agreement refers to it being agreed as part of flexible working arrangements. It refers to as part of flexible working arrangements.
PN66
Now, what they say is, because that particular shift agreement which has been incorporated into enterprise agreement refers to flexible working arrangements. That must trigger the facilitative provision of the agreement clause 34 in respect of this other unregistered certified agreement. The implication seems to be that the change in question is caught by the facilitative provision which requires a degree of agreement and consultation.
PN67
It is a tortuous argument. It fails for a number of reasons. Firstly, the mere reference in this 12 hour shift agreement which forms part of the agreement to flexible working arrangements does not necessarily mean a reference to the facilitative clause in the EBA. That is the first point. The second point is that this other agreement which makes its reference to as part of flexible working arrangements doesn't have any bearing on this other unregistered agreement which they want to rely upon.
PN68
The link is just so tenuous so as to again make it impossible to assert with any credibility that there has been a breach of this facilitative provision being clause 34 of the 2001 agreement. So they are the two things which I rely upon for the purposes of the breach. There is also the assertion that what CSL is doing is breaching the no extra claims clause. The no extra claims clause is found, it is tab 6, your Honour. It is clause 17:
PN69
The parties agree that this agreement is in full settlement of all enterprise bargaining claims for the nominal life of this agreement.
PN70
And it goes on to say:
PN71
There will be no extra claims for salary, allowances, increases or conditions of employment.
PN72
Now, a couple of things about this. First, it makes plain that these relate to enterprise bargaining claims. Why does it do that? This clause postdates the Federal Court decisions in Emwest. Those decisions leaving open the prospect of bargaining over matters not covered by the agreement and enabling parties to take protected action. That is what Emwest was about. Up until Emwest decisions it was thought that once the parties had a deal then during its nominal life you couldn't take any protected industrial action.
PN73
What Emwest said was, well you actually can take protected industrial action if it is over a matter not covered by the enterprise agreement. Now, what the parties had in mind here and certainly CSL, what they must have had in mind in framing this was enterprise bargaining claims, as commonly understood. So what one needs to do is properly characterise the nature of any claim. Now, there is no claim from CSLs perspective. CSL asserts that he has the right to do what it is doing. If the position is that that right cuts across the employment contract, for instance, if it is the case that in doing so the redundancy agreement is triggered, well, so be it.
PN74
Not that we concede either of those two things, but that is the consequence of what flows from the assertion of this right. It is not a claim as such. If anything, there is a claim from the other side to say that CSL should not do what it seeks to do. There is no provision in any of the instruments which focus on the capacity to do what CSL are seeking to do. If there was a provision which fairly and squarely touched on this you can bet that the unions would have endeavoured to raise it, but they couldn't. They had to go through the very circular routes that I have endeavoured to unravel earlier.
PN75
There is no provision in the agreement which deals with this issue and it is not as if CSL are seeking some extra benefit. Sir, it can't be that every act by an employer, whether it is to its benefit or not, amounts to an extra claim. That would be an absurd outcome. What if, for instance - what happens for instance if an employer wishes to terminate the employment of an employee, does that amount to an extra claim? What if an employee is to be promoted, or what if the union seeks the promotion of a particular employee, is that to be regarded as an extra claim? An outsourcing function, the reconfiguring of the floor of an office, the changing of office spaces, the reconfiguring of a call centre, are they things to be regarded extra claims?
PN76
It can't be. I raise those points just to highlight that the absurdity of the suggestion which follows from the way in which CPSU and the AMWU in turn wish to characterise this, it follows from their submission that really anything that an employer would seek to do, any change would really mount to an extra claim and we would say that is a fairly fanciful proposition. In any event, what we are seeking here in this proceeding is for the Commission to determine the narrow question that I outlined earlier.
PN77
Now, that certainly can't be an additional claim. All we are asking is for the position under the enterprise agreement to be clarified using the proper vehicle to do so. It is impossible to see how that can be characterised as any additional claim. The unions can't point to a claim that the employer has made. There isn't any. There is the assertion of a right but there is no claim. Now, that deals with the question of the no extra claims clause.
PN78
I just want to close, sir, by reiterating and point at the outset that in hearing this the Commission must do so in a circumspect fashion. That is clear for any 111(1)(g) application. It is all the more so here where the parties, the unions at this table agreed with the employer to have the Commission exercise its powers in this very instance and that is the most compelling reason why you should effectively the 111(1)(g) application.
PN79
Once you begin to see what the argument is from the CPSU about the nature of the breaches which are asserted it becomes all the more compelling. They cannot point to a particular provision which the employer is cutting across because there is none and for those reasons, sir, the 111(1)(g) applications ought to be dismissed. If it pleases.
PN80
THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Cooper.
PN81
MS COOPER: Thank you, your Honour. I just want to quickly make a few points in relation to Mr Gardner's arguments and the point is he argued that this is not a discretion to be exercised lightly. We agree with that but we say that the appearance of breaches of a certified agreement aren't light matters, they are significant matters. In addition he talked about the DSP in the enterprise agreement and where parties have agreed to come to the Commission over an application of the agreement, that the Commission should not then refrain from hearing that dispute.
PN82
However, we are not saying the Commission shouldn't hear the dispute over the application of the agreement. We are just saying that the Commission should get it in the right order and in these circumstances we say that this is, as I said before, putting the cart before the horse. We are not saying the dispute shouldn't be settled. We would hope that it could be done mutually between the parties but that doesn't appear to be going to happen.
PN83
Mr Gardner also said the parties should have confidence in their agreements and we agree with that statement as well. In particular we would stress that parties should honour their agreements and that in particular the clauses of the 2004 agreement and the 2001 agreement given that appearance of a breach, that that duty of the Commission or that confidence that the parties are required to have is best served by refraining from hearing this application at this time.
PN84
Again going to those decisions to which Mr Gardner referred, the Qantas decision and the Telstra decision, and I would seek to make briefly an amendment to our submissions insofar as in the paragraph 2 we refer to CPSU v Telstra, PR940569. That should be CEPU, so I apologise for that, your Honour. There was a similar decision, CPSU v Telstra that was print S7179 that found pretty much the same sort of thing. In any event, the sentiments that are expressed in that decision, we say our application is consistent with those.
PN85
We want the clauses of the agreement observed as well. We are saying for CSL to act consistently with its agreement it is required to set consultation and agreement before it introduces these claims and failure to do otherwise is a breach of those agreements, or has the appearance of a breach of those agreements. In addressing the breaches that we assert of section 111(1)(g)(5)(a), Mr Gardner took you first to clause 34 of the 2001 agreement, saying that that is the only clause that has anything remotely to do with the hours of work and discuss the unregistered agreement.
PN86
The example I provided - or the CPSU provided in its submissions going to that issue which Mr Gardner found so tortuous is actually quite a simple connection and I went right back to the original introduction of these 12 hour shifts. When they were originally introduced, if you will notice clause 16 of the award it says:
PN87
CSL can require work to be done over a reduced number of attendances or on the basis of flexible working hours.
PN88
The 12 hour shifts were the reduced number of attendances, required of reduced number of attendances and on my instructions those initial discussions about the 12 hour agreement were under the aegis or the authority of the award and that clause of that award. Clause 7 of the award shows the list of facilitative provisions and flexible hours of work and clause 16.1 is one of those facilitative provisions.
PN89
So accordingly when we come to - and similarly when the matters were introduced, at least in respect of the CPSU members in the attachment to the enterprise agreement, in the '95-97 enterprise agreement, they were specifically expressed to be as part of its flexible working arrangements in the organisation. Now, to say there is no link I think is to defy one's reading of those instruments. So therefore we say clause 34 of the 2001 agreement, talking as it does about facilitative provisions, we agree the only place in the award where flexible hours of work are contained is that clause which is a facilitative provision.
PN90
Given the statements made variously by CSL, although not specifically in the unregistered agreement, which I am not sure if anyone has handed that agreement up to your Honour. I have got a date, 2.5.97, Engineering Services Shift Agreement 1997. So that is already an exhibit?
PN91
MR GARDNER: Well, that is tab 9.
PN92
MS COOPER: It is tab 9.
PN93
THE SENIOR DEPUTY PRESIDENT: Tab 9, yes, I have got it. Yes.
PN94
MS COOPER: Let me see. Now, although that is unregistered, we would say and I say in the submission that we consider it is incorporated into this 2001 agreement by virtue of clause 22 of that agreement which talks about working patterns at CSL levels and it says:
PN95
The CSL Award provides for work arrangements that can be both nine day or 10 day fortnight ...(reads)... provide an eight day, 16 day attendance pattern.
PN96
So we would say there is an incorporation by reference there to the 12 hour shift agreements that have been signed by the parties.
PN97
THE SENIOR DEPUTY PRESIDENT: What was that clause you just read from, sorry?
PN98
MS COOPER: Sorry, your Honour, clause 22 of the 2001 agreement. I understand the parties are working towards a consolidation.
PN99
THE SENIOR DEPUTY PRESIDENT: That would be very beneficial.
PN100
MS COOPER: So all I am trying to demonstrate, your Honour, is that there is a consistent link between the submissions that we have made and clause 34 of the 2001 agreement insofar as the hours of work that these employees are working is clearly within the ambit or the aegis of the facilitative provisions clause of that agreement. To try and sever them from those provisions we think is extremely artificial and I think by looking at that agreement itself, in tab 9, at clause 16.2, the parties have agreed:
PN101
The parties shall review the operation of the agreement two months before it expires with a view to seeking agreement to ongoing arrangements.
PN102
So in those circumstances that confirms or adds weight to our submission, we say, that these arrangements can only be changed by agreement and in a manner that would in our submission come within clause 34 of the 2001 agreement and the clause therein which says that those sorts of changes will only happen in those circumstances. So that takes us back to why we think there is a breach of that clause 34.
PN103
THE SENIOR DEPUTY PRESIDENT: I just have a question about the unregistered agreement at tab 9. I noticed in clause 4.2 it is a clause dealing with scope and dispute settling and 4.2 talks about when a party becomes aware of a problem the dispute settling procedure in the award is invoked. Isn't that what is happening here? Does that affect your submission at all?
PN104
MS COOPER: We acknowledge there is a dispute. There is undoubtedly a dispute, but the dispute as it has been framed before you today we don't think takes account of the dispute about the capacity of CSL unilaterally introduce these changes. The dispute is so narrowly defined as to imply an acceptance that these changes can take place and that is what we are disputing and that leads us to the 111(1)(g) argument, that this dispute really shouldn't be decided before the capacity to make the change has been decided.
PN105
THE SENIOR DEPUTY PRESIDENT: So where does your submission take us, Ms Cooper? If I accepted your submission matters would end, the dispute, if you like, remains. Where does it go then?
PN106
MS COOPER: Where it goes then, in the first instance we would say that the status quo remains in accordance with the dispute settling provisions of the award and that there may be some then directions from your Honour or some further discussion with the parties as to how we progress the resolution of that threshold issue as to whether or not - or to dealing with the dispute we have with the company insofar as we don't believe they have a right to unilaterally make these changes.
PN107
That of course would involve further submissions, or it may involve the parties agreeing to go off and discuss further the issues. But it would still leave us with - we are not saying you should dismiss the matter. We are just asking that you refrain from hearing the matter until that issue is resolved.
PN108
THE SENIOR DEPUTY PRESIDENT: And how do you see that issue being resolved?
PN109
MS COOPER: I see that issue being resolved either - I examined the section 99 dispute notification that CSL has lodged with the Commission. Although that dispute notification again specifically says that the matters in dispute relate to the income maintenance provisions of the agreement, I would think it would be within the ambit of determining that matter that those arguments could - re-listing that matter, that those arguments could possibly be raised as to the - and then that would allow the Commission the power to arbitrate the matter either to say - well, to make a finding of dispute, to settle the ambit of the dispute and arguments would perhaps then be raised that it is not merely a dispute about the income maintenance provisions, it is also a dispute about the capacity of the employer to impose this change.
PN110
In those circumstances, again with reference to section 120, the Commission wouldn't be constrained to saying yes or no, this clause of the agreement does apply or doesn't apply. The Commission would have the power subject to the arguments of the parties to perhaps create an entitlement to a period of income maintenance for the employees involved.
PN111
MR GARDNER: Could I just respond to that point?
PN112
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Gardner.
[1.22pm]
PN113
MR GARDNER: The question, your Honour, was where does it take us? It takes us nowhere. It doesn't advance anything at all if the CPSUs submission on this is accepted. Nothing on this is resolved at all. Conversely, if you are to proceed with that application then at least an aspect of it which unambiguously became part of the discussion between the parties can be resolved and that is are these two gentlemen entitled to the income maintenance protection. That is the question.
PN114
Now, if you are for us on that then the answer is no and it is then a matter for the employees with their union representatives to decide where they go next. But at least a key issue which has been the subject of debate between the parties and which is ripe for resolution under the disputes procedure can be resolved. Now, as to what happens next, well, it is highly speculative as to what would happen next and that is not a good enough reason in our submission to ask the Commission to down tools so to speak when we have a clear right to have this matter heard and be dealt with.
PN115
MS CHEW: Your Honour, if I may?
PN116
THE SENIOR DEPUTY PRESIDENT: Ms Chew, yes.
PN117
MS CHEW: I have here with me an e-mail which I might not hand up but it shows that there have been discussion between the parties, both unions and the employer over the course of the last few months and even as last as Monday, 25 October the company continued to make offers as to a way in which to resolve the issue at hand. Now, I am instructed that members were not happy with the offer but in any case it shows that there s scope for negotiation.
PN118
What our submissions are in effect, your Honour, is to say that this is specifically the process that the parties should be going through in terms of shift patterns. We say that it is - well, aside from whether a discussion of whether there is a breach or not, we say that there is much scope for parties to negotiate and to continue negotiating. We say that it is improper for the company to come here and ask you to decide and to take away the power of two parties, or three parties in this case, to come to agreement on situations such as this.
PN119
Now, it may be that it takes a little while to reach agreement and there are many issues in which negotiations between parties do take a little while and we simply submit that negotiations have been continuing throughout this process and should continue to do so and we say that the application by the company therefore not only is an attempt to hijack an agreement process but we say it is improper and should not be allowed. If your Honour pleases.
PN120
THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Chew. What I am inclined to do now is to just adjourn briefly into private conference to mainly traverse what we are going to do for the rest of the day and how we might handle that. I think that would be wise at this conjuncture of the proceedings. So we will go into private conference.
SHORT ADJOURNMENT [1.27pm]
RESUMED [1.32pm]
PN121
THE SENIOR DEPUTY PRESIDENT: Ms Cooper.
PN122
MS COOPER: Thank you, your Honour. I will just briefly finish with Mr Gardner's submissions. He went to the no extra claim clause in the 2004 agreement and claimed that this was not an extra claim. Well, he initially spoke of the Emwest decision and took your Honour to the findings there whereby that if a matter was not covered by the agreement industrial action was possible. In effect if that is what CSL was trying to achieve with this clause then the argument turns on him.
PN123
The second sentence of the clause, that is clause 17 of the 2004 agreement, says:
PN124
The parties agree that this agreement is in full settlement of all enterprise bargaining claims ...(reads)... or conditions of employment.
PN125
In fact we say that the matters that are before the Commission, the hours of work are clearly matters that are embraced by the agreement and accordingly, you know, that - sorry, your Honour, I have just lost my train of thought. That second sentence is very broadly worded. It is not limited to enterprise bargaining claims. It is broadly worded so that it would embrace any claims, any extra claims, not just enterprise bargaining claims and if its intention was to defeat or to overcome the decision in Emwest, then that is what it has done and in our view and going to Mr Gardner's other submission that this was not a claim, they could be claims by the employers or claims by the employees and it doesn't have to be a claim that they put up in bargaining. It can be any extra claim whatsoever.
PN126
That this is a claim we think, I refer just to paragraph 7 and 8 of our submission, I think a lot of the examples Mr Gardner provided were quite frivolous and clearly would not fall within the understood definition of the claim, whereas a matter that affects conditions of employment, a matter that affects people's hours of work, their attendance at work and their remuneration, their superannuation, their retirement benefit is clearly a matter that is a claim and is closely related to the employment relationship and is not something as frivolous of a move in office or a change of workplace and I don't think anyone would seriously consider bringing a dispute to the Commission in those circumstances.
PN127
So our position is still that the action of the company in seeking to impose this new arrangement is an extra claim within the meaning of that clause.
PN128
THE SENIOR DEPUTY PRESIDENT: How do you put construction around that second sentence? I mean there is lots of things that happen during the course of an agreement which lead to rises and falls and salary of individuals and the intention of a dispute settlement clause is to assist in, my understanding, assist in the resolution of matters in dispute about how an agreement is applied. Can you just elucidate or help me with how you might decide what is a no extra claim and it is embraced by that against a matter which is just in the application of the agreement, which I think is a fairly important issue in this case it seems?
PN129
MS COOPER: I think they can be seen as quite - they can be quite discrete issues. But I think the idea of the enterprise agreement is that it settles for its life all the issues between the parties and in its original incarnation I think the no extra claims clauses were intended to give some peace to the industrial landscape, to give some certainty to people's relationships with each other and I think in these circumstances it is not - the employees should take some comfort from those clauses, as the employers do, that matters are settled for the moment and that parties can get on with their day to day business of running the business and going to work every day in the understanding that there will be no extra claims, no extra impositions put upon them that would throw out their plans, that would affect them in such a fundamental way as this proposal that CSL has on these employees. Does that answer your question?
PN130
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN131
MS COOPER: And finally, I would just like to say we are not asking that the Commission find that the agreements have been breached at this stage. We are not asking for a finding of breach. The Commission doesn't have to be satisfied in exercising its discretion under section 111 that there has been a breach. It only has to appear to the Commission that there has been a breach. So the arguments raised by CSL as to the operation of the no extra claims clause and the facilitative provisions clause of the 2001 agreement need not be investigated to the depth that they normally would if the Commission was having to be satisfied of those breaches.
PN132
We put our argument only at the level of there is an appearance of a breach and that satisfies in our argument section 111(1)(g)(5) of the Act and in those circumstances we would seek that the Commission refrain from hearing this matter further at this point in time. Thank you, your Honour.
PN133
THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Cooper. I propose to adjourn now until 2.10. The Commission is adjourned.
LUNCHEON ADJOURNMENT [1.38pm]
RESUMED [2.20pm]
PN134
THE SENIOR DEPUTY PRESIDENT: Your Honour, I propose to call two witnesses. The first is Mr McClelland. His statement was filed and served for Mr McClelland and I going to seek leave to file a statement on behalf of Mr Gale. I have provided the AMWU and the CPSU with a copy of that statement. Mr Gale's statement is confined to responding to a part of the evidence of the AMWU. I don't know if there is any objection to that course, but in any event, we will deal with that when it comes. If I could call Mr McClelland first unless, your Honour, there is nothing you need for me to deal with first?
PN135
THE SENIOR DEPUTY PRESIDENT: No, Mr Gardner. Mr Gardner, it is often a practice that if other witnesses are going to give evidence when one witness is giving evidence the other witnesses remove themselves from the court room.
PN136
MR GARDNER: Certainly and Mr Gale from our side should obviously go.
PN137
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN138
PN139
MR GARDNER: Mr McClelland, could you please state your full name for the court?---Mark Stephen McClelland.
PN140
And your address?---Care of 45 Poplar Road, Parkville.
PN141
And have you made a statement in this proceeding?---Yes, I have.
PN142
And is it a true and accurate statement?---Yes, it is.
PN143
Thank you. I tender that. And I can say it was the statement that was filed and served. Do you need another copy?
PN144
THE ASSOCIATE: We have a copy.
PN145
MR GARDNER: Right, yes. I have got nothing further for the witness other than to mark the exhibit.
PN146
THE SENIOR DEPUTY PRESIDENT: Okay.
PN147
MS CHEW: Before we proceed, your Honour, I would just like to make an amendment to the appearances. Mr Addison has decided that he has another urgent matter to attend to so it will just be me this afternoon, with Mr Mavromatis of course.
PN148
THE SENIOR DEPUTY PRESIDENT: Very good.
PN149
**** MARK STEPHEN McCLELLAND XXN MS CHEW
PN150
MS CHEW: Mr McClelland, tell us how long you have been working at CSL?---Almost four years.
PN151
In your role as?---My currently role as the corporate human resources manager.
PN152
And in your role as corporate - what was it, sorry, corporate human resources manager, a brief description of what you do on a day to day basis?---I am responsible for employee relations matters for the Australian operations and also responsible for human resources matters for all of CSLs group of companies.
PN153
And if I could be so bold as to ask you what kind of hours of work you have in terms of carrying out your responsibilities, is it a nine to five job, is it a - I don't know, what kind of hours do you work?---I work from around eight/8.30 through until six, between six and seven at night.
PN154
Would it be fair to say that you work in terms of - the hours of work are governed by how much work there is to do as opposed to restrict start and finish time, is that fair enough?---Reasonably, but in my duties I have conference calls regularly during the week which have to start to coincide with our overseas operations so I need to be able to start and stop at certain times, yes.
PN155
Okay, sure. Okay, thank you. Now, let us take you back to - well, I know that you weren't there in 1997, but can you comment on the changes in terms of introducing the 12 hour shifts into CSL, if you have knowledge of that?---I wasn't employed by CSL at the time so I really have no knowledge of it.
PN156
All right, okay. Can I ask you then in relation to 2004 when did the idea for the reduction or the scaling back of the 12 hour shift, when did the company first contemplate having to make those changes?---To my knowledge this particular shift has been reviewed on a regular basis for the last two or three years. The plans for this particular change was discussed and planned earlier this year and plans were being made in May and then implemented in June of this year.
**** MARK STEPHEN McCLELLAND XXN MS CHEW
PN157
So would it be fair to say that prior to this year there was talk about it but there wasn't actually steps undertaken to investigate how changes were to occur or to actually choose shifts or to make actual sold plans, would that be a fair comment?---Prior to this year I haven't been involved in any other discussions to make those changes.
PN158
I see, okay. Were you aware of discussions prior to this year?---Since in my investigations for this case I have been made aware that there have been a number of considerations over the last two to three years, but I haven't been involved directly in any plans to do so.
PN159
I see. So your involvement started some time this year when there were actually plans made to introduce those shift changes?---Yes, that is correct.
PN160
Okay. Were you in attendance at the meeting notifying Mr Robbie and Mr Urli about their change in shifts?---No, I was not.
PN161
I see, okay. And so to what degree were you involved in terms of those decisions?---In my role as corporate human resources manager it was reported back to me these changes are discussed in my role. I would play a role in some of the planning, some of the strategies. It was reported to me that these changes were to take place.
PN162
So who makes the actual decisions?---The actual decisions?
PN163
The actual decision to - okay, let us say the actual decision to actually take the 12 hour shift off and to reintroduce the day shift, who makes decisions like that?---That would be the maintenance manager and in consultation with the engineering logistics manager.
PN164
I see. Okay. And who would have made the decision - sorry, just to reiterate so I can be clear on it. You have just told us that the maintenance manager would be the person making the decision to restructure the maintenance shifts?---The engineering role would be, yes.
**** MARK STEPHEN McCLELLAND XXN MS CHEW
PN165
Okay. Now, there are a couple of attachments to your witness statement. Do you have that before you? I refer particularly to MC3. Now, that is a letter from CSL to Mr Norman Robbie dated 7 May 1997 and I am aware that you weren't involved at that stage, or you didn't write the letter, but I refer you to a clause in the third paragraph where it begins:
PN166
Initially there will be no alteration to your current hours of attendance but with ever increasing demands shift work could be a requirement in the future.
PN167
Is that the basis for CSLs decision to unilaterally vary a contract of employment?---Sorry, could you - - -
PN168
The third paragraph where it starts, "Initially there will be no alteration"?---Yes.
[2.29pm]
PN169
MR GARDNER: Perhaps if the question can be asked and it was a mixed question, in fairness.
PN170
MS CHEW: Yes, I will ask the question more succinctly. If I could refer you to that paragraph where it begins, "Initially there will be no alteration", and it goes on to say:
PN171
With increasing production demands shift work could be a requirement in the future.
PN172
What I want to ask you is this, on what basis does CSL maintain its right to vary an employee's hours of work?---Again, my understanding of this clause, of this paragraph in the letter to Mr Robbie is that it is advice that the shift patterns that fall within this offer as they are required at the time, they may need to change in the future.
**** MARK STEPHEN McCLELLAND XXN MS CHEW
PN173
I see. And is your position then that that change can be imposed or would there need to be some agreement to it?---That change could occur.
PN174
How?---By working with the employee and their representative to work through the changes that are required. Very much in the case that we have done here, where we have provided a period of notice where these changes are to occur and we have then discussed the individual's requirements and adjusted our position in an attempt to meet those requirements, made sure we are very clear on what the organisation's requirements are and made every effort to meet those requirements.
PN175
Okay. Could the witness be shown the witness statement of Bruno Urli? Perhaps I will give the witness the witness statements of both Norman Robbie and Bruno Urli at the same time. Now, can I take you to the witness statement of Bruno Urli. If you could have a look at paragraph 4 of his witness statement. There he describes the meeting that on 10 June, which I realise you weren't present at, but it says that during the meeting with certain individuals -
PN176
The company told us our skills would be used on day shift. We would be told that we would be starting on 10 September 2004 and I was shocked because I had not expected to be moved back to day shift after working 12 hour shifts for almost 10 years.
PN177
And if I could take you to the next paragraph, paragraph 5, there he says:
PN178
I left the meeting with the impression that the company was not willing to discuss or negotiate their position. There was no consultation with me about how I felt about the change, how the changes should happen and when it should happen.
**** MARK STEPHEN McCLELLAND XXN MS CHEW
PN179
So that is in direct contradiction to what you have just told us. You have told us that you have tried your best to accommodate their needs. You have told us that you would make adjustments to meet their requirements and you have told us that you would have discussed their individual requirements. How do you say that that has happened, the company's obligation to discuss change with employees? Can you point to specific examples of where the company has considered the individual's concerns?---That meeting was to provide initial notice of it and the reason for the notice period was to be able to discuss those issues. I can't make a judgment on Mr Urli's impressions of the meeting, but the meeting of 10 June was to formally advise and notify the employees of our operational changes and the requirements.
PN180
Because the decision had been made prior to 10 June without consultation with employees or employee representatives. The decision had been made. All you had to do was to tell them really?---The decision to change the shift - - -
PN181
MR GARDNER: Sorry, sorry. Again there is at least two questions there and I think in fairness to the witness, the time of the decision might be one issue, whether that was taken with or without consultation is another one.
PN182
MS CHEW: Okay. Well, let me ask you separate questions. When was the decision made to actually close those two shifts down?---I can't say that to you specifically. I don't know when exactly the changes were made.
PN183
Okay. Would there have been scope for the employees to disagree with the decision? Was the decision final?---The employees have disagreed with the decision.
PN184
Well, they have disagreed and the company has shown a great reluctance to accommodate their disagreements. Of course we can disagree all we like but what does the company do in relation to those disagreements is another question and that is my question. They have expressed - - -?---I will answer your question again, by their actions they are able to disagree, yes.
**** MARK STEPHEN McCLELLAND XXN MS CHEW
PN185
Yes, but what has the company done to accommodate their concerns?---The company, we have met - the company has met with the employees and their representatives many times to discuss the terms and conditions of their change.
PN186
Would it be fair to say in relation to the decision to close the shifts there was no consultation with the employees?---I am not aware of when the decision was taken exactly but the decision was taken to close the shift and that would not necessarily have included the employees.
PN187
Well, we say that it didn't, do you agree with that?---I am not specifically aware of whether it did or it didn't.
PN188
Okay. Sure, that is fine. Are you aware of the effects that the changes would bring to the employees?---From what aspect? From their employment?
PN189
Well, yes, in terms of their employment?---In terms of their employment it would change their working hours from working 12 hour shifts which consists of shifts that commence at 7 am till 7 pm, two day shifts and then two night shifts commencing at 7 pm to 7 am over four days and then four days off work. That is the most significant change, yes.
PN190
I see. Would those changes in your opinion have an impact on their income?---Yes, it would have an impact on their income.
PN191
How much of an impact would it have?---It is somewhere in the region of gross, $18,000.
PN192
That would be fairly dramatic, wouldn't it, in your opinion?---Dramatic?
**** MARK STEPHEN McCLELLAND XXN MS CHEW
PN193
It is about a third. The evidence is that it is a loss of about $20,000. Their current income is approximately 70 plus thousand. I can't do maths but I am calculating it could be almost a third and I am happy to be corrected on my calculations, but it is about a third of - - -?---The shift penalty rates that apply to those are 15 per cent for day shift and 30 per cent for night shift, so that would be in the vicinity of, averaging those out, so it would be in the vicinity 22.5 per cent.
PN194
That is very exact. I am happy to be corrected on my percentage calculations. So 22 per cent drop in income and substantial changes in the hours of work and arguably lifestyle, do you think that is significant and dramatic?
PN195
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Gardner.
PN196
MR GARDNER: Yes, the difficulty I have with this line of questioning is if I understand where my friend is going, she is essentially asking the witness to make a judgment which is actually a legal judgment. I mean I understand where she is going and she wants to make an assessment about whether there is a fundamental change to the employment contract. Now, for that - - -
PN197
MS CHEW: That is not my question.
PN198
MR GARDNER: For that purpose she might get to the bottom of the matter the change is and frankly, I don't think that is disputed, it is not really an issue between the parties, but to then ask the witness to make a judgment about whether it is a moderate change or a big change is really not to the point because if the question of whether there is redundancy is to be assessed a proper characterisation of the change is really a matter for the Commission and not any witness. It is not really of any assistance to you, sir, we would say, for this witness to say no, I think that is a moderate change and for another witness to say no, I think it is a big change. It doesn't advance the position one way or another. What is entitled to happen is clarification on what the change is but making a judgment about whether that is big or small is really unhelpful.
**** MARK STEPHEN McCLELLAND XXN MS CHEW
PN199
THE SENIOR DEPUTY PRESIDENT: Thanks, Mr Gardner. Ms Chew, the witness statements of your people do indicate the extent of the change which they are suffering.
PN200
MS CHEW: They do.
PN201
THE SENIOR DEPUTY PRESIDENT: I think you need to be a bit careful about how far you go in getting a view from the witness about how he rates the change.
PN202
MS CHEW: Sure, okay.
PN203
THE SENIOR DEPUTY PRESIDENT: And it has clearly been traversed in the statements and earlier proceedings the extent of the change on individuals.
PN204
MS CHEW: Okay. If I could just have a few seconds. Sorry, I do beg your discretion just because Mr Addison was supposed to be running the case, so I do appreciate the extra time.
PN205
THE SENIOR DEPUTY PRESIDENT: Yes, I will give you some latitude.
PN206
MS CHEW: I was just going to take you back to paragraph 1 of your witness statement and you don't have to refer to it. It just says that you started at the Broadmeadows site from January 2001 to April 2004. You were HR operations manager with responsibility for the Broadmeadows site and in your current role you are responsible for both Parkville and Broadmeadows. Is that correct?---That is correct.
PN207
Is that to my understanding? Okay. So in the period from 1 January to April 2004 you would have known generally in terms of human resources issues what would have been going on at Broadmeadows, would that be a fair comment?---Yes.
**** MARK STEPHEN McCLELLAND XXN MS CHEW
PN208
I see. Do you participate in EBA negotiations at either or both sites?---Yes, I do.
PN209
I am instructed that there were EBA negotiations in 2003 for the Broadmeadows plant. Would you have been involved in that - 2004, I beg your pardon?---Yes.
PN210
I see. And the 12 hour shift wasn't discussed in the EBA negotiations in 2004?---There were a number of issues that were raised earlier related to 12 hour shift and some payments and when those payments would be made.
PN211
What kind of payments, sorry?---That penalty rates while employees were on leave.
PN212
I see. So it wasn't a discussion so much about 12 hour shifts, it was a discussion about penalty rates arising from working the 12 hour shifts?---That is my recollection.
PN213
I see. So at the stage of the EBA negotiations you weren't talking about changing 12 hour shifts or whatever. You were maybe talking about the penalties arising from it and the payments and so forth?---That is correct.
PN214
That is just to clarify my understanding. Now, earlier in your evidence you stated that plans to scale back or to remove the 12 hour shifts were contemplated earlier in the year, roughly May 2004?---The changes that were made were announced on 10 June and I understand that there were discussions in the areas between the management that would have taken place in May, yes.
PN215
I am instructed that the EBA negotiations lasted from early 2004 to approximately May 2004, so is that your impression of what happened?---Early May, yes.
**** MARK STEPHEN McCLELLAND XXN MS CHEW
PN216
Okay. So essentially what we assert is this, during EBA negotiations the company had full knowledge that it had intentions to reduce the 12 hour shifts or particularly to remove 12 hour shifts of the maintenance department. It didn't enter your mind, not correlation, no overlap?---It wasn't part of what we were looking to do at that time, no, in the negotiations for the EBA.
PN217
Okay. Another employee at CSL, Mr Gale, engineering services manager, says his statement that the prospect of a change to the shift arrangement was on the cards for some time, "Indeed well before I started", which was May 2003. Do you have any comment on that?---I am sure that is possible.
PN218
No further questions, thank you.
PN219
THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Chew. Mr Gardner.
PN220
MR GARDNER: Nothing arising for re-examination, your Honour.
PN221
PN222
PN223
MR GARDNER: Mr Gale, would you state your full name and address for the court, please?---My name is Leo Francis Gale. My address is (address supplied).
PN224
Mr Gale, have you made a statement in this proceeding?---I have.
PN225
And is it a true and accurate statement?---It is.
PN226
PN227
MR GARDNER: Did we actually mark Mr McClelland's? I have lost track, I am sorry.
PN228
THE ASSOCIATE: No, because we have already seen Mr McClelland's.
PN229
MR GARDNER: I see. Thank you. I don't have any additional questions for the witness.
PN230
PN231
MS CHEW: Mr Gale, it says here that you have been employed by CSL since 29 April 1970?---That is correct.
**** LEO FRANCIS GALE XXN MS CHEW
PN232
That is older than myself so you have worked there a very long time?---A long time.
PN233
Sorry, I shouldn't give away my age, shouldn't I, but anyway. So you say that you stated initially as a draftsman at the Parkville site and then you moved to Broadmeadows in 1994. When you were working in 1994 you were construction manager and then engineering services manager from 20 May 2003?---Correct.
PN234
So you have seen a lot of changes go through CSL?---I have seen them go from a Government organisation to private enterprise.
PN235
Yes, and that must have been a very interesting change?---There was lots of changes along the way, yes.
PN236
All right. When you were working in - well, tell us how the 12 hour shift operations came into being. I take it that it wasn't like that all the time. When did it start and how did it start?---That was well before my time.
PN237
I see?---My role was not in the engineering. I had no involvement with this engineering services at that time when it happened. I can only go on hearsay. I wasn't involved in it, but I assumed at the time that the company required people to service the plant at night, but I had no involvement in it.
PN238
So would you have been aware of EBA negotiations during that period?---No.
PN239
In the last 10 years. Are you involved?---No, it wasn't in my role.
PN240
I see. Not in your role but in your capacity as an employee at CSL would you have noted EBA negotiations?---Yes, I knew there was EBA negotiations going on at that time.
**** LEO FRANCIS GALE XXN MS CHEW
PN241
I see?---But I was more involved on the construction side and building side and most of my involvement was with contractors, not with CSL staff.
PN242
I see, okay. And so you commenced your role as engineering services manager in May last year?---Yes, last year.
PN243
I see, okay. And in your role as engineering services manager do you have much to do with the two employees, Bruno Urli and Norman Robbie?---They work for one of my managers and yes, I see them every day as I walk through the workshop. I do not direct their work. That is Narein Mather. He would direct what work they do, but I am associated with them.
PN244
I see. So in your role as engineering services manager what do you in your role that would affect these two employees?---What do I do? I suppose there would be some directions of work. There may be some urgent projects that come up, or there is a breakdown where I may ask for someone in the workshop to action as quickly as possible, but that is all I think that I - you know, it is usually the manager below that is dealing with them all the time.
PN245
Okay, all right. Were you involved in the most recent round of EBA negotiations?---No.
PN246
Who would have been?---I think my manager, Mark Abdallah. I think he was involved in those but I was not involved.
[2.56pm]
PN247
Can I take you to the witness statement of Norman Robbie?---Yes.
PN248
Do you have that in front of you?---Yes.
**** LEO FRANCIS GALE XXN MS CHEW
PN249
Okay. Can I take you to paragraph 3. I am not sure whether you have had an opportunity to read paragraph 3 but essentially what it says is in May Norman Robbie approached you and ask you whether there would be any changes to shift arrangements - sorry, asked you about shift arrangements and it is his evidence that you said it is not my agenda to change your shifts. Is that consistent with your recollection?---No, it is not.
PN250
What did he say or what did you say?---I cannot remember the meeting. That is not to say I am saying it didn't happen, but I can't remember that meeting. What I can remember is an earlier meeting when I first started the job and that is in my statement, that both those gentlemen asked me about the role. That is all I can remember.
PN251
I see. But it would have been possible?---It could have been, yes.
PN252
For an exchange to have happened?---It could have happened.
PN253
Now, in your role, can I ask when you first became aware of the 12 hour shift changes or discussions to do with proposed changes?---I suppose it would be in 2004. We were looking at getting efficiency in the department. A number of people talked to me about do we need to keep the shift going.
PN254
Approximately when in 2004, do you remember that?---Look, it is hard for me to give you an exact date.
PN255
Rough date perhaps. Just the month will do?---It could have been May. It could have been a bit earlier. Look, I just can't give you an exact date. What I can say is that when these two gentlemen approached me as I first took the role on board in 2003, I was made aware that this item had been on the agenda for years before.
**** LEO FRANCIS GALE XXN MS CHEW
PN256
I see, okay. So it is on the agenda, people talk about it - - -?---No action was taken.
PN257
No action was taken until early 2004?---Mm.
PN258
How were you involved in terms of - or were you involved at all in terms of the change in the shift for the two employees?---I was directly involved in that.
PN259
Okay. So tell us about your involvement and what decisions did you make or who did you consult?---There was two people made the decision effectively from an efficiency point of view, myself and Narein Mather. We discussed issues of work orders and how we would get better control. We believe that the use of the night shift was not an efficient use of that labour. We looked at the issue that we were having problems with day shift with Mondays and Fridays because of this nine day fortnight. We only had one person on and we needed more people and out of that came the decision between both of us that we needed to stop this shift.
PN260
Right. So when did you actually make the decision?---Look again, to give you exact dates.
PN261
Well, I don't need precise dates?---In my statement I said around May we did the review.
PN262
I see?---So it would have been in May/June that decision was made.
PN263
I see. And did you and your - I forget the name?---Narein.
PN264
Narein. Did you and Narein consult with the employees at that stage?---At that stage, no.
**** LEO FRANCIS GALE XXN MS CHEW
PN265
Did you need to?---Not necessary at that stage.
PN266
I see. Why not?---We hadn't finally made our decision. We had made our decision we talked to them.
PN267
So after your decision was made you told them the decision - sorry, let me rephrase that. That question was coming out - you made the decision, whether that be in May or June or whether, you communicated that decision to the two employees. What scope would there have been for the two employees to disagree, to voice their concerns, to express their dissatisfaction?---It would be very difficult for them to do that I would assume.
PN268
Because the decision was final?---The decision was final.
PN269
I see?---It was a business requirement.
PN270
And would you have discussed your decision with other people in CSL, management level?---Yes.
PN271
Who did you discuss that with?---With my manager, Mark Abdallah.
PN272
And would this have been a decision you could have made, the three of you, so Mark, yourself, Narein, without consultation with HR?---No, HR would come into it too. Bernie Moss did also come into it when we had made the decision within an engineering that we wanted to cease this shift.
PN273
I see, okay. And what kind of discussions would you have had with HR after your decision was made?---We would ask them what was the process.
**** LEO FRANCIS GALE XXN MS CHEW
PN274
Okay. So HR was consulted in terms of the process of how to actually carry out the changes?---What is the process. This is a business decision we have made, how do we go through the business process.
PN275
I see. Can you tell us a little bit about the meeting on 10 June, tell us what happened?---10 June was the date we informed the shift people that we would be ceasing that role, we didn't them running shift any more. We called both gentlemen into the office. There was myself, Bernie Moss, the two gentlemen, Narein Mather was there to I think. That was all. We sat them down and said we have come to the decision that we no longer need or require them to work shift and we want them to come onto day work, nine day fortnight. We also said that we envisaged this happening in three months time, that we are giving them three months to come off the shift work and at that stage yes, they stated that they were disappointed with that decision, they weren't happy with it and that is where that meeting ended.
PN276
I see?---John Campani I think was also there who was the union representative at that stage.
PN277
Mr Norman Robbie says that:
PN278
There was no effort made to discuss with me what the company changes were going to be.
PN279
?---Say that again.
PN280
Sorry. It says here, you can find it in his witness statement, Norman Robbie?---I don't have a copy of his statement.
PN281
Paragraph 4?---Yes.
**** LEO FRANCIS GALE XXN MS CHEW
PN282
I don't know, three sentences in. It says, first he describes the meeting and who attended and so forth and that there would be changes and then he says:
PN283
There was no effort made to discuss with me what the company changes were going to be.
PN284
Is that a fair representation of what happened? Did you actually ask them how they felt about it?---No, we didn't ask them how they felt. I was surprised that they were surprised because this had been an issue for so long, you know, and when I first started the job they were the first two people that actually talked to me about anything. It was the role of is shift work still going to stay on board, so I felt, you know, when they said they were surprised it took me back. I thought, hang on, guys, this has been on the cards for so long, it has been in discussions, now it is happening, so yes.
PN285
And perhaps just a couple of final questions. When did you first have meetings with the unions to discuss the changes that were going to happen?---We gave them the three months and I think - when you say the unions, the problem is that there was no Metal Workers Union representative in our shop for a long time.
PN286
I see?---It was being run by John Campani who is Electrical Union. John talked to us a few times about this issue and I think it was two months into the three month period before the metal workers came, or before I met Tony and then at that stage yes, the unions got involved.
PN287
Okay. Was the CPSU ever involved in the discussions?---Not at the beginning they weren't, no. They came in very, very late in the picture. All of a sudden out of the blue they appeared.
PN288
Just to take your point a bit earlier about the discussions on 10 June with the employees. You mentioned that you were surprised that they expressed surprise?---Yes.
**** LEO FRANCIS GALE XXN MS CHEW
PN289
Because, and I hope I have got this correct, what you said was the reduction of the 12 hour shifts had been on the cards, on the table for a long time?---Yes.
PN290
The fact that they have been told on 10 June they should have been expecting it. Is that a fair representation?---Yes.
PN291
Okay. In your position, and you have mentioned that it was even perhaps in the year 2003, were there any discussions at that stage or are you - sorry, I will ask the question separately. In 2003 you were aware that there were discussions about pulling the 12 hour shifts. Were you aware of the degree to which there were discussions with the appropriate management representatives?---My understanding is there wasn't any.
PN292
I see?---This has been on the boards for a long time but no action other than we don't need that shift. That was the only discussion that I had heard or been involved in that people have said to me this shift is not required any more.
PN293
So who were those people who told you that the shift was not required any more?---Well, Narein Mather was one that was heavily into say that this was an inefficient shift and that we could get better efficiency and better customer requirements out of a day shift.
PN294
I see. And was that communicated to others, the employees in any way?---No.
PN295
No?---It wouldn't have been.
PN296
So how would people have known? If it wasn't communicated to the employees how would they have known that that would have been on the table?---I didn't communicate it to them.
**** LEO FRANCIS GALE XXN MS CHEW
PN297
I see, but it was communicated?---I am not sure, I am not sure who else but I know that the people were well aware that this shift was something that we were looking at.
PN298
I see. Would it have been fair to say that they would have been rumours?---It could be rumours.
PN299
Rather than actual discussions or communications from the company?---It could be. Again, I don't know.
PN300
Okay, all right. We have been talking about discussions about the 12 hour shifts and how they are inefficient and so forth and you have mentioned that someone like Narein would have been involved in those discussions. Were those discussions ever had with HR personnel?---Not in those early days, no.
[3.10pm]
PN301
Okay. So when would HR first have found out?---Look, I believe it to be in the - possibly in May when we decided that this is something we needed to do.
PN302
Okay?---So at that stage before that we were just throwing ideas around and looking at it and tossing it around. We didn't involve HR until the end.
PN303
I see. So would it be fair to say and I know you can't comment on HRs behalf, but would it be then logical to say that HR had no involvement until you told them?---Correct.
PN304
That your decision was made?---Correct.
PN305
I see. And they were only involved to the extent of the process issues that will give effect to - - -?---Well, the decision was ours whether we needed the shift or not. It wasn't anything to do with HR other than the process.
**** LEO FRANCIS GALE XXN MS CHEW
PN306
No further questions, thank you.
PN307
PN308
MR GARDNER: I just have one question. Mr Gale, you referred to a meeting on 10 June 2004?---Yes.
PN309
Do you recall that meeting? You mentioned those who were attendance and I just wanted to ask you whether you recall whether Mr Campani, the ETU shop steward, was there at that meeting?---Yes, I corrected myself and said that he was in there. He was there.
PN310
Thank you. I might have missed it. No further questions.
PN311
PN312
THE SENIOR DEPUTY PRESIDENT: Ms Chew.
PN313
PN314
MS CHEW: Can I get you to repeat your name and address for the purposes of transcript?---Yes, Bruno Mario Urli, (address supplied).
PN315
Okay. And you have your witness statement in front of you?---Yes.
PN316
Is that witness statement true and correct?---That was as we - yes, yes.
PN317
We rely on the witness statement and have no further questions.
PN318
PN319
MR GARDNER: Mr Urli, I just have a couple of questions related to your statement?---Yes, go right ahead.
PN320
The first one, I just want to clarify something, in paragraph 7 you refer there to the reduction income and there is a figure there of $20,000. Do you see that?---Yes.
PN321
Is that a gross figure?---Apparently that was quoted by Mark - sorry, Brendan Seville and so forth and that is approximately. It is not an exact figure. I haven't sat down and worked it out but it is pretty much close to the mark and I think I was quoted about 14,000, 14 or 15,000 gross. Sorry, net. Sorry, net.
PN322
Net, yes?---I am getting confused there.
PN323
Yes. All right. Now, in June 2004 you are told about the shift closure?---Yes.
**** BRUNO MARIO URLI XXN MR GARDNER
PN324
Did you ever have any discussions with say Mr Robbie about the prospect of a shift closure prior to June 2004?---No. Discussions were probably innuendos that were consistently running around the place. I mean the electricians had been taken off shift in previous years. They were down to no what's a names and we lost two fitters off shift in previous years who were never replaced, but we considered ourselves being only the two that were there doing basically preventative maintenance work that we sort of never - we could see there as long as the process kept going. That is the way we saw it. If the process changed, if there was a massive change in process, the process was going to an eight hour situation or a nine hour a day situation, we would probably fall into that category. But the process wasn't changing so we just naturally assumed that we would remain on shift, certainly as long as the end of this current EBA agreement anyway.
PN325
I see. Now, when you say there was some innuendo, I take it you mean there was some innuendo about possible change to the shift work?---Not really. I mean as I said, the discussions were the electricians had been taken off shift. Previous to that there was four electricians and maybe even more. They would come off shift and two fitters would come off shift and hadn't been replaced up until that stage. So we were sort of hunting along the lines of that situation, that we were doing basically the preventative maintenance work as well as breakdowns as required and we would remain on shift. We had no fears of coming off shift in any way, shape or form and it was certainly not told in any way, shape or form that shift may close up until we were told on 10 June.
PN326
So do you recall having a discussion with Leo Gale about the prospect of a shift closure?---No. 10 June was the first time that Leo discussed it with us.
PN327
You don't recall ever having a discussion in July 2003 about it?---No.
PN328
You never approached Mr Gale with Mr Robbie about the issue?---May have what's a name, only because of stories that were floating around, but certainly nothing official. Only because our superannuation comes up every year. Our superannuation contributions come up once a year and it was discussed and we said, well okay, are we still available for shift, are we still on shift. Yes, as far as we were concerned we were still on shift.
**** BRUNO MARIO URLI XXN MR GARDNER
PN329
So that was a discussion that you might have had in July 2003?---This was this year.
PN330
That is this year?---This year. Prior - - -
PN331
I just want to - I am sorry?---Prior to us being told when we got our superannuation statements.
PN332
Mr Gale is of the view that you, together with Mr Robbie, actually approached him July 2003?---Well if that is what Leo says, well, that may be so but I don't recall it. Certainly it didn't stick in my mind if it has. If that was the case it certainly did remain there because we would have just brushed it off and thought, well, we have got nothing to worry about if that had have been the case. But I certainly can't recall it.
PN333
You can't recall whether that happened, that discussion happened or not?---I certainly haven't got anything written in my diary that we approached Mr Gale or anybody for that matter.
PN334
All right. Yes, no further questions.
PN335
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN336
MS CHEW: No, no questions.
PN337
PN338
PN339
MS CHEW: Mr Robbie, could you state your name and address for the purposes of the transcript?---Norman Robbie, (address supplied).
PN340
Do you have a statement before you, your witness statement?---No, I don't. Thank you.
PN341
Is this statement true and correct?---Yes.
PN342
I just want to ask you some brief questions, if you look at paragraph 3 it says here that in May 2004 you received a letter from your super fund and you approached Mr Gale. Why did you approach Mr Gale?---At the time we had heard rumours that there was things going on about the shift so I just wanted to confirm that nothing was happening to our shift because the super had to be signed and sent off.
PN343
I see, okay. Had you had this kind of discussion with him previously?---No.
PN344
So it is the first time you have ever asked him directly whether your shifts were going to change?---I am not positive on that. I think, you know, maybe in just words. Not officially anyway.
PN345
PN346
MR GARDNER: Mr Robbie, can I just refer you to paragraph 5 of your statement, I just want to clarify something in paragraph 5. The reduction in income there of 500 a fortnight, is that a gross figure to the best of your understanding?---500 a fortnight, no, it wouldn't be. It would be net that would be. That is what I stand to lose per fortnight.
**** NORMAN ROBBIE XXN MR GARDNER
PN347
You say that is a net figure, do you?---Yes.
PN348
Excuse me for a moment, please.
PN349
THE SENIOR DEPUTY PRESIDENT: Yes.
PN350
MR GARDNER: Mr Robbie, I think it was the last question that you were asked by my friend and it was to the effect whether you had any discussions previously with Mr Gale about the shift closure. By previously I mean prior to June 2004 and your response was you were not positive on that, so you are a bit uncertain on that, about whether you had discussions previously with Mr Gale about this. Now, I want you to think back, do you say that there were no discussions which took place about this issue prior to June 2004?---Yes, I do.
PN351
So no discussions?---No discussions.
PN352
You had never had a discussion, for instance, with Mr Urli about this prospect in respect of a shift closure?---In general conversation, yes we have.
PN353
Right?---Yes.
PN354
Was there any general discussion with say Mr Gale about it?---That is why I said I am not sure on that, you know. Officially, no, we have had no discussions.
PN355
Yes?---Right. From time to time you hear rumours around in CSL and you bring up these things and, you know, I remember Leo saying, one quote was in his eyes in the future he sees no reason to take us off shift. Now, whether that was in the meeting that we had when I asked about the super or not, I am not sure.
**** NORMAN ROBBIE XXN MR GARDNER
PN356
I am glad you raised that, that is an important point. If Mr Gale says that you did indeed have a discussion with him in July 2003. In that discussion you and Mr Urli approached him about whether there would be any changes to the shift arrangements. Do you recall making an approach to him like that?---Well, I don't recall. We possibly did, yes.
PN357
Right. And at that point Mr Gale says that he wanted to review the current arrangements before making any decisions or changes. Do you recall that discussion?---No, I do not.
PN358
Mr Gale commenced the role of engineering services manager in May 2003 and it is because of that that you went and saw him to ask where things are at with the shift work arrangements. Isn't that right?---That is quite possible.
PN359
So when you say that Mr Gale said to you that the shift change wouldn't be occurring, isn't it possible that that discussion was had in July 2003?---That discussion when Leo said that the shift wouldn't be changed was just before the end of the financial year. That is why I went to see him about it.
PN360
2003?---This year.
PN361
You say it is 2004?---Yes.
PN362
All right. Now, in paragraph 4 of your statement your understanding was that there would be no changes to your shift. Do you say that is because there is an EBA in place, is that your understanding?---Yes, my understanding of the EBA is like swearing on the Bible. It is supposed to be upheld at all times to be quite honest, yes. I went to Bruno and said when we signed the EBA that we were right for another two years. I remember distinctly saying that.
PN363
Sorry, who said that?---I said that to Bruno.
**** NORMAN ROBBIE XXN MR GARDNER
PN364
You said to Bruno?---What it is, me and Bruno work opposite shifts so we only see each other at the change of shift.
PN365
Right?---When the EBA was signed I said, well, that is good, we are right for another two years on shift.
PN366
I see. No further questions.
PN367
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN368
MS CHEW: No questions, your Honour.
PN369
PN370
THE SENIOR DEPUTY PRESIDENT: Mr Gardner.
PN371
MR GARDNER: Yes. Your Honour, can I take you to our written submission, please. Can I first deal with a jurisdictional issue which doesn't seem is of concern to the AMWU and the CPSU and it ought not, but I think for clarification it is important to recognise that this application is both made under the Workplace Relations Act and also the Industrial Relations Act and that is a function in fact that we are dealing with a provision whose source relies originally on an agreement made in the IR Act which has been modified by one made in the Workplace Relations Act.
PN372
Now, it might be that the Workplace Relations Act agreement completely incorporates the IR Act agreement, in which case LW is the vehicle. But an alternative explanation is that the two sit together. You have Workplace Relations Act agreement dealing with part of the clause and you have the IR Act agreement dealing with the other, in which case it is both provisions which apply. Now, your Honour, in our submission you need not be concerned by this. It is safe for any decision to be premised under both provisions. It is not something which is any great contention.
PN373
To resolve the question one would need to resolve which of the competing interpretations applies as set out in paragraph 20 of our submissions and we say, sir, you don't need to do that. It is enough if any decision proceeds on the basis that it is either LW or MH, or indeed both. There is going to be a source of power, there is no question about that. As I said, I don't apprehend that there is any concern from the other side of the bar table about this particular issue. If there is I am happy to deal with it in more detail, but short of that then I will press on.
PN374
Sir, the application then - I will speak of 170LW. The application is made as a result of a dispute arising under the relevant disputes procedure which has not been able to be resolved by the parties. The Commission safely assume that that disputes procedure has been exhausted. It can do so in reliance upon the evidence of Mr McClelland where he goes through in some detail the discussions that have been had before the parties and the correspondence between the parties which point to the dispute and that part of the dispute which deals with the question mark over whether income maintenance should apply.
PN375
So it is important that the parties obviously exhaust the disputes procedure. We really make the point that you can safely conclude that that is the case here. Now, the key question, as I said at the beginning of the day, is whether the employees are able to access the income maintenance provisions of the relevant agreement and I might just take you to the relevant agreement.
[3.35pm]
PN376
It is behind tab 2, sir. It is attachment 7, your Honour. Did you find attachment 7?
PN377
THE SENIOR DEPUTY PRESIDENT: I have.
PN378
MR GARDNER: You are doing better than I. Now, the relevant part is 3.1 and if I could just provide an overview of the clause before I get into the heart of it. The overview is this, the clause dictates when under this agreement redundancy arises. That is set out at 3.1. There one, two, three, four different circumstances which under this agreement pick this agreement's processes in respect of redundancy. Then there is the prospect of consultation. That is around 3.3, 3.4.
PN379
There is talk of redeployment at part 4 and then most relevantly to this case you get to that paragraph, the second paragraph under clause 4.3 which states:
PN380
Consideration will also be given to redeployment to a position with a lower classification level provided ...(reads)... income maintenance will apply.
PN381
And then there is a formula for income maintenance and I think that formula has been updated by the 2004 agreement. So the heart of this matter is that paragraph and in particular the words:
PN382
Where redeployment to a lower level position is agreed income maintenance will apply.
PN383
The reason why that is relevant is because the AMWU asserted that these income maintenance provisions are triggered in this particular circumstance. So if that is right, if they are to convince you of that, they must be able to convince you that what is happening here is first, a redundancy within the meaning of the agreement and then a redeployment to a lower level position. They are the two things that they must be able to convince you of.
PN384
For our part we need to only convince you that this is not a redeployment to a lower level. If you are with us on that you don't have to actually deal with the question of whether there is a redundancy or not in these particular cases. You don't have to go there. You can assume for the present purposes that there is or isn't a redundancy but you can direct the focus on the question of whether what is happening, that is, the change back to the day work arrangements, is a redeployment to a lower level position. That is the key.
PN385
THE SENIOR DEPUTY PRESIDENT: Is it your submission that redeployment to a lower level position only occurs in the context of a redundancy?
PN386
MR GARDNER: Yes, in the context of this clause, yes, yes. This clause - the processes under this clause are triggered by what happened 3.1, there being a redundancy. Now, our position is that even if there is a redundancy the income maintenance provisions don't apply here because there is no redeployment to a lower level position and the reason for that lies in what is meant by lower level position and if there is one glaring omission in the AMWUs case it is the failure to address that question of what is meant by lower level position.
PN387
They really gloss over that in one single line and it is, I guess, difficult for them to otherwise in fairness because the lower level position must mean a level within the classification structure. What the parties must have intended there when they refer to a lower level is a lower classification level and that is made plain when you have a look at the second - well, the first sentence:
PN388
Consideration will also -
PN389
under 4.3, I am sorry, your Honour -
PN390
Consideration will also be given to redeployment to a position with a lower classification level.
PN391
Now, the interpretation of those words is informed or assisted by looking at a broader context and it is this, the classification levels in CSL are governed by the 1998 award. The '98 award refers, as awards typically do, to a range of different classification levels with different pay increments. Now, none of the CSL Certified Agreements have changed this classification structure. Their classification structure stays the same.
PN392
So really all the parties could have been referring to when they referred to classification level and lower level must have been a situation where someone is effectively demoted down the classification pipeline and in that circumstance they directed their minds to what the income maintenance position would be. The fact is that this circumstance is not governed by the income maintenance provisions. The parties haven't dealt with this type of circumstance.
PN393
Even assume it is redundancy, which we don't concede, but even assuming there is redundancy triggered by all this, the income maintenance provisions just don't speak for the situation because the two employees in question have remained at the same classification level. That is clear from the evidence of Mr McClelland which hasn't ben challenged. The two employees are classified as MET7 and following the change they remain as classification MET7.
PN394
So given that there is no classification level change there is no income maintenance trigger. The position really can't be much more clearer than that, we say. So that really is the heart of this particular application, whether those provisions apply and we say plainly they don't. Now, I anticipate that the other side will make much of whether or not this is a redundancy or not. As I said earlier, if you are for us on this income maintenance point you don't really need to address the question of whether there is a redundancy or not.
PN395
We say you only really need to address that point if you are against us on the income maintenance point because then both things needs to be satisfied. You need to be satisfied that there has been a redundancy but within the meaning of the agreement. It is the agreement itself which dictates when a redundancy arises so as to trigger the income maintenance provisions. That is the key and what we have set out, your Honour, at paragraphs 26 and 27 of the written submission, we have framed this the redundancy question, the agreement sets out four possible circumstances where redundancy arises and we say that none of those paragraphs is met by a situation where the work and employees are still required. Your Honour, I will save anything further for a reply. If it pleases.
PN396
THE SENIOR DEPUTY PRESIDENT: I just want to clarify one point.
PN397
MR GARDNER: Yes.
PN398
THE SENIOR DEPUTY PRESIDENT: To really refresh my mind from the last proceedings a few weeks ago.
PN399
MR GARDNER: Yes.
PN400
THE SENIOR DEPUTY PRESIDENT: The employees are still engaged - I beg your pardon, the employees have moved off a 12 hour shift but their income is being maintained at the 12 hour shift level until the date of a ruling from these proceedings. Is that right understanding?
PN401
MR GARDNER: Following the last hearing, I can't recall the date, but from the following Monday the employees agreed to move to the hours required of them by the company but they are indeed benefiting from the income maintenance - well, income maintenance is being provided. Let me put it that way, and that was on the basis of this matter proceeding in an expeditious that it has and that there be no delay to that.
PN402
THE SENIOR DEPUTY PRESIDENT: Thank you. That was my understanding.
PN403
MR GARDNER: Yes.
PN404
THE SENIOR DEPUTY PRESIDENT: I thought it was important just to re-affirm that. Thank you.
PN405
MS CHEW: Your Honour, simply because I have only had carriage of the matter since 2 o'clock, I would much appreciate it if I could have an adjournment to actually put together my closing submissions.
PN406
THE SENIOR DEPUTY PRESIDENT: How long were you seeking, Ms Chew?
PN407
MS CHEW: Half an hour.
PN408
THE SENIOR DEPUTY PRESIDENT: Half an hour?
PN409
MS CHEW: Yes.
PN410
THE SENIOR DEPUTY PRESIDENT: Okay. Well, we will come back at 4.15.
PN411
MS CHEW: Thank you.
PN412
THE SENIOR DEPUTY PRESIDENT: Okay. The Commission is adjourned.
SHORT ADJOURNMENT [3.47pm]
RESUMED [4.20pm]
PN413
MS CHEW: Thank you, your Honour. We rely on our outline of submissions, brief as they may be. The substance of our submissions remain the same. We say that the applicant has mischaracterised the nature of the dispute. What my learned opposition has done is taken you straight to whether income maintenance should apply and raise that as the central issue for your determination today. We say that ignores the fundamental issues that arise and it ignores the issues that we are in contention about.
PN414
So what I propose to do is take you through four steps, your Honour. Firstly, I am going to outline how the 12 hour shifts came to be. Secondly, we submit that a redundancy has occurred and I will give you reasons for that. Thirdly, given that it is a redundancy, in our respectful submission whether there was adequate consultation, if any consultation, and lastly, what happens in the event of a redundancy. So first of all, your Honour, it is uncontested evidence of how the employees, Mr Bruno Urli and Mr Norman Robbie came to work their 12 hour shifts.
PN415
In their witness statements you will note that there were advertisements at the plant roughly in 1995 or '97. I am not entirely sure, but according to their best recollection it was around that period of time. They put their hand up, applied to work the 12 hour shifts and the company accepted and that is how they started to work the four days - sorry, the 12 hour shift arrangement. They have based their livelihood around it. They have made plans in terms of their financial commitments, plans for the future for their retirement. They have structured their lives around the 12 hour shift.
PN416
Now, secondly, we say that the 12 hour shift is further cemented in the relationship between the employers and employees by nature of the EBA. I am instructed that I think - I am instructed that the first negotiations in the first EBA that reflected the change in the shift arrangements was approximately 1995. This is reflected in the award that both parties have taken you to and it is reflected in the facilitative provisions which again was discussed at length in the application by the CPSU.
PN417
Specifically we say that it is focused on clause 16, hours of work, where if there are changes - sorry, if there are to be flexible working hours or changes to them, we say that consultation and agreement is necessary. I am not going to take you through the details of those arguments. I am sure you have made note of it when the application was put to you and I am instructed that the CPSU has an agreement with the company to reflect the 12 hour shift arrangement and you, your Honour, were also taken to tab 9 of the folder prepared by the applicant in terms of the unregistered agreement dated 7 May 1997 between the AMWU and CSL.
PN418
Now, that clearly outlines negotiations and agreement between the parties of a 12 hour shift arrangement. We say that that agreement, despite it being unregistered, is picked up in clause 22 of the CSL EBA 2001 where it specifically refers to 12 hour shift arrangements and the intention of that clause we say is to catch all the 12 hour shift arrangements that were negotiated between the parties. So between the CSPSU and CSL, between the AMWU and CSL.
PN419
THE SENIOR DEPUTY PRESIDENT: What clause did you refer to in that?
PN420
MS CHEW: Sorry, clause 22 of the 2001 EBA. I believe there were submissions made beforehand in relation to those clauses. So that is how we say the 12 hour shift arrangements came to life and came into being. They were negotiated. They were agreed upon and if there are to be changes they just go through a similar process to be negotiated or to be agreed upon. So that is our first point. Secondly, the applicant has in our submission glazed over the issue of whether there is a redundancy.
PN421
Their submission is effectively this, it doesn't fall into any one of the four categories outlined in clause 3.1 therefore it is not a redundancy. Now, I will take you to that in detail, your Honour. We say that it is clearly a redundancy. So in relation to clause 3.1, the first dot point - - -
PN422
THE SENIOR DEPUTY PRESIDENT: And where is that again?
PN423
MS CHEW: Sorry, tab 2, attachment 7.
PN424
THE SENIOR DEPUTY PRESIDENT: Yes, I have got it.
PN425
MS CHEW: You will see, your Honour, that there are outlined four paragraphs which the applicant has taken you to. What has happened is essentially this, two employees have been working the position of mechanical shift technician and in those positions they are required to work 12 hour shifts in order for them to meet the requirements of the plant in terms of the maintenance services that need to be provided.
PN426
What has happened is, as I have said, those positions have been made redundancy. They are no longer required to work those shifts. Those shifts, as we have heard from Mr Gale, have been closed in order to give effect to operational efficiencies. If I could take you to 3.1, the first paragraph where it says:
PN427
The number of employees exceeds that required for the efficient, economical and profitable operation of the company.
PN428
Now, clearly that is the position here. We have two more employees than are necessary in those position. We know longer require them to work those hours in those positions. Secondly, to the second paragraph where it says:
PN429
Employees cannot be used effectively because of technological or other changes in work methods or changes in the nature, extent or organisation of the functions of a particular organisational unit.
PN430
It seems pretty clear to me, your Honour, that the changes that the company have gone ahead with is a way of organising the functions in that organisational unit. So even on the applicant's own submissions there has been effectively two people made redundancy according to those two points. But even more than that, your Honour, redundancies that - the clause in 3.1 is not an exclusive definition of redundancy. You will note the first sentence says:
PN431
Redundancies may arise in a number of circumstances, including where it does not purport to be an exhaustive list or an exhaustive description of how redundancies may arise.
PN432
We say that redundancies should be interpreted in light of the TCR provisions where essentially it boils down to this, there is work that no longer needs to be done by anyone. And that is what we say has happened here.
PN433
THE SENIOR DEPUTY PRESIDENT: Ms Chew, do you characterise the jobs or the positions that the two employees held as being - I think they were MET7 12 hour shift or something like that, is that the way you characterise the position, to say the work has stopped, or the positions are no longer required?
PN434
MS CHEW: Yes, it is an essential part of the position that they perform certain duties or functions, so that is MET7 or whatever the classification is. It is an essential part of their function that they be there for the seven to seven shift, I think it is two days day shift, two days night shift and four days off. It is essential for - it has been essential for the company to run those two positions in order for their process plants to function on a 24 hour basis.
PN435
We say that the hours that they work and the duties that they perform is what the job description is, is what the position is. For the employer to say look, you know, we just want them to do the same thing at a different time frame, really is too narrow a way of constructing what the job position is. So you are right, your Honour, in characterising our submission to you as to what the position should be framed as. It includes the 12 hour shift component which we say is crucial and of course their duties, essentially also their remuneration.
PN436
So it is our clear submission that redundancy has occurred in this instance. Now, then that takes us to a third step. What happens? What are the employer's obligations in the event that there is a redundancy? If I could get you to flick back to the 2001 EBA where in clause 3. Clause 3 of the agreement basically outlines that the party agree to a process of ongoing cooperation and consultation. So I take you to in particular the fourth dot point, the very last dot point where it says:
PN437
CSLs continuing requirement to implement change in light of changes in business circumstances, market needs and company structure.
PN438
That falls squarely on what we say has happened here. It is clear. It is in the EBA that the company is required to cooperate and consult with the unions and employees and in fact their employees about changes to the workplace as a result of changes in business circumstances, market needs and company structure. Mr McClelland has given evidence that the changes have been in the air. It has been Mr Gale and Mr McClelland's evidence that the changes have been in the air. We have heard from Mr Gale that decisions were made. He can't remember the precise date but let us say some time in May 2004, that would probably be a fair representation of the time frame that he offered.
PN439
Decisions were made between himself and his co manager, Narein, I believe his name is. I could be corrected. But nevertheless, the decision he and his co worker made a decision in the absence of consultation with the employees or the unions. They made the decision, they communicated that decision on 10 June 2004. That was the first opportunity that the employees were told of what was going to happen to the both of them.
PN440
Mr Gale himself admitted that there wasn't much discussion. He was surprised that they were surprised, but really there was no scope because the final decision had been made. There was no scope for - there was no opportunity for employees to influence the decision making process and we say that offends the requirements of consultation. Commissioner Smith in the Vodafone decision in 2001 says that:
PN441
Consultation is not perfunctory advice or what is about to happen. This is a common ...(reads)... to influence the decision maker.
PN442
It is Mr Gale's clear evidence that no such opportunity arose. And so that takes us to step 4 which is the result upon a redundancy occurring. We have heard submissions from the applicant that income maintenance is something that we have pressed for. We have heard their submissions to you, your Honour, as to why they should not apply and we submit that - if I could just find the clause - sorry. I don't know if you have that before you, your Honour?
PN443
THE SENIOR DEPUTY PRESIDENT: Which one are we talking about?
PN444
MS CHEW: Attachment 7, where the redundancy provisions were.
PN445
THE SENIOR DEPUTY PRESIDENT: This is tab 7?
PN446
MS CHEW: Yes - no, sorry, tab 2. Tab 2, attachment 7.
PN447
THE SENIOR DEPUTY PRESIDENT: Tab 2, attachment 7. Okay, you are back to that. Okay, I have got that.
PN448
MS CHEW: So we go to clause 4 of that where it begins redeployment and 4.3 outline income maintenance. It is our submission that the intent of income maintenance is to provide employees who have been made redundant with a way of dealing with the changes in income as a result of redundancy - sorry, of redeployment. We say that income maintenance arises when an employee is redeployed.
PN449
We say that in this instance both employees have been given a position which has similar functions, but we say that if you look at it as a whole is undeniably a lower level in the effect that the income is substantially reduced and that is a huge factor in anyone's employment contract and we say that on that basis income maintenance should apply. But if your Honour is not persuaded by that argument we submit strongly also that what the employer has done is to make both their positions redundant and not paid out their redundancy entitlements, which we say amount to roughly a year's worth of redundancy payment according to their length of service, which we can negotiate later on.
PN450
But what we say has happened is that there clearly has been a redundancy. Two positions have been made redundancy. Two employees have then been told that they are required to move to day shift. What we say the employer should have done was to pay them out their redundancy and to characterise any position as a new employment contract. This is something that the employer has sought to avoid by focusing the argument on income maintenance. We say that - - -
PN451
THE SENIOR DEPUTY PRESIDENT: Excuse me, can I just clarify that. Are you saying that the employer in this circumstance should have made the employees redundant and paid them out?
PN452
MS CHEW: According to their redundancy entitlements.
PN453
THE SENIOR DEPUTY PRESIDENT: So severed their employment? Severed their employment and paid them out?
PN454
MS CHEW: Yes.
PN455
THE SENIOR DEPUTY PRESIDENT: In which case the redeployment provision wouldn't have operated because they had left CSL.
PN456
MS CHEW: Well, it is an either/or argument.
PN457
THE SENIOR DEPUTY PRESIDENT: Yes.
PN458
MS CHEW: Our position is that they have been made redundant. If it is characterised as a redeployment we say income maintenance applies. If, as we say, it is a redundancy and there has been no effective redeployment, we say that it should be characterised as the end of their employment relationship for the period that they worked the 12 hour shift and that they have been re-engaged in new positions on day shift, different hours, different income. That constitutes a new contract of employment.
PN459
THE SENIOR DEPUTY PRESIDENT: Just if I take you to the redeployment clause. The redeployment clause as I read it, an employee can elect for an alternative to retrenchment and it is I think like in most of these clauses it is presumed that redeployment occurs at the same level. So setting aside the employees who have got a shift arrangement for the moment, an employee at M7, they would seek to be redeployed at M7 elsewhere in the company and then they are only redeployed to a lower level classification if they can't find redeployment at their same level. Is that your understanding of the clause?
PN460
MS CHEW: Well, firstly I would like to highlight just the first sentence that you read out where employees elect for alternatives. We submit that no such opportunity was available. They were told that they had to go onto day shift. There was no opportunity for them to consider perhaps a 12 hour shift somewhere else. I mean I don't know if that is an option available in the company obviously, but we need to show that these discussions did occur and there was consultation to take those concerns or suggestions into consideration.
PN461
We say that what has happened is that the company has told them, look, we are shutting your shift go and work here. That is essentially what it is and we say that that is improper. We say that that is not allowed under the EBA. We accept that if it is redeployment then we need to address the issue of whether it is a lower level or not in order to attract income maintenance. So we accept that. Our submission is that we believe it is a lower level simply because it is a change of hours.
PN462
The employees see it as a disadvantage to a huge extent and there is a substantial drop in income. But as I said, if your Honour is not persuaded by the income maintenance argument then what we are submitting is that what effectively has happened is that the employees have been made redundant. The employer never explained it to the employees as such because they maintain that they had a unilateral right to change their hours. We say that that is not wrong. That is not what should have happened.
PN463
What should have happened is for them to say look, we are going to close down your shifts, we don't need you guys to do that kind of work any more, those positions do not exist, what do you reckon we should do about it. Options, if option is not available, how about this, how about that. That was never discussed and that is essentially the problem that we have with the company's approach. So there have been substantial negotiations between the parties to try and reach an agreed outcome.
PN464
Obviously we are here because for whatever reason there has been no such agreement so far. So again just to reiterate, we believe that what the company should have done in this instance is to recognise the closure of the shifts as a redundancy, to offer the payment of redundancy entitlements to the employees. The employees have started working day shift since four weeks ago. They have been working day shift for four weeks. In effect what the company has done is closed the shifts, offered them new positions which they have accepted.
PN465
Now, for the company to now turn around and take advantage of the employees in that sense, we say is unfair and should not be allowed. We say that the company should pay out the redundancy entitlements, as they should have done, and recognised this new employment relationship from the date that they started working day shift. That creates the new employment contract. We say that simply moving them from 12 hour shifts to day shift on 15 or 20,000 less is not acceptable alternative employment.
PN466
We say that as a result of the change that has been imposed it is a clear redundancy and a termination of the employment contract at the time that they moved to day shift. That concludes my submissions, unless your Honour has questions.
[4.44pm]
PN467
THE SENIOR DEPUTY PRESIDENT: I have one question and it is something which I should also give Mr Gardner the opportunity to respond on too, if I take you to that agreement we are looking at which is the one behind tab 2 which is 1995-97.
PN468
MS CHEW: Sorry, which clause - - -
PN469
THE SENIOR DEPUTY PRESIDENT: 1995-1997, the tab 2 agreement. There is a clause in there, in the agreement proper which is clause 7 which is headed Roster Changeovers.
PN470
MS CHEW: Yes.
PN471
THE SENIOR DEPUTY PRESIDENT: It is clause 7. No, hang on. I beg your pardon, it is one of the attachments by the looks of it. It is in attachment 5, I should say, 5, which is headed 12 Hour Shift Agreement Bioplasma Division. It is in a little way from into the agreement proper.
PN472
MS CHEW: Yes, I see.
PN473
THE SENIOR DEPUTY PRESIDENT: And then if you go to clause 7 of that attachment, it is headed roster changeovers. Down the bottom of the page.
PN474
MS CHEW: I see. I see where you are referring to. It is our submission that - - -
PN475
THE SENIOR DEPUTY PRESIDENT: Take your time.
PN476
MS CHEW: Sorry. If I could take you back to the heading Attachment 5 just a couple of pages before. You will see that there is a preamble and then there is clause 2, the parties.
PN477
THE SENIOR DEPUTY PRESIDENT: Yes.
PN478
MS CHEW: It binds the employer and the CPS.
PN479
THE SENIOR DEPUTY PRESIDENT: I see. CPSU, okay.
PN480
MS CHEW: Yes.
PN481
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN482
MS CHEW: And in any case, we don't consider it is a roster change. It is a shift change.
PN483
THE SENIOR DEPUTY PRESIDENT: Yes. Thank you.
PN484
MR GARDNER: Your Honour, thank you for the indulgence of sitting late today and I shouldn't be too much longer in my reply. I want to deal with a point which has been put against us from the start of the day and that is to the effect that this dispute has been mischaracterised by CSL and I just want to deal with it by referring to the statement of Mr McClelland and the attachment to that statement to that statement. The attachment is at MC9.
PN485
THE SENIOR DEPUTY PRESIDENT: Yes.
PN486
MR GARDNER: And in the second paragraph of that letter Mr Mavromatis seeks to take away some confusion. He says:
PN487
To take away any confusion on the 12 hour matter the union's position is that the 12 hour ...(reads)... up to 12 months.
PN488
And I think there Mr Mavromatis is really referring to the redundancy provisions in the agreement. But the point is that fairly and squarely the AMWU put it on the table that these people should get income maintenance and that is why we are here today, to resolve that question. Now, my friend referred to the unregistered agreement and I would just like to take you to that briefly. The unregistered agreement is found at tab 9. The first point is that whilst it is unregistered the agreement is incorporated into the body of the CSL agreements.
PN489
I can come to that point although I don't need to because the next point that I understand that is made is that because this is therefore a binding agreement the changes that CSL has sought can't be made. Now, the difficulty of that argument is that when one looks at the content of this agreement it presupposes that there are live shifts happening. The agreement contemplates that there are some shifts and then sets out what happens if there are some shifts. And so if one looks to clause 6 it talks about how long shifts will go for, not more than 12 hours at clause 6.2. 6.3 talks of the shift times. Clause 7 speaks of overtime. There is reference to the shift cycles which will occur. The agreement specifies the shift penalty payments.
PN490
But this agreement doesn't have any application if there are no shifts happening. This presupposes that there are shifts happening. So it doesn't answer the question that is posed by the AMWU. This agreement does not stand in the way of the shifts no longer occurring. It is silent on that point. So to say that because we have an agreement which dictates how shifts will be worked, when they are worked, somehow prevents those shifts from not any longer being employed is an extremely long bow and that is even if - that also assumes that the agreement actually forms part of these binding arrangements. That is a more complicated question, an issue that has been put to you but I will do my best to try and unravel this for the Commission.
PN491
You were taken to the 2001 agreement initially and it was clause 22 and the reference is made to:
PN492
In addition the parties have agreed other working patterns which include the 12 hour shift arrangements.
PN493
What the AMWU says is that that reference in 2001 is said to incorporate this unregistered agreement made back in June 1997. That is all they have to hang their hat on. That is to be contrasted, your Honour, with the 1995 agreement. Yes, the '95 agreement where at attachment 5, the attachment that you have previously - or just earlier in a question to my friend posed about the relevance of that provision, refers to a 12 hour shift agreement, attachment 5, which is actually incorporated in the actual agreements. That is '95.
PN494
In '95 you have got the CPS Bioplasma 12 hour shifts where it actually formed part of the agreement. You then get to '97 and in '97, attachment 6, there is a very odd reference to negotiated consequential agreements and you will see under (g), under the reference EA2, July '95-97, a reference to 12 hour shift agreements. Now, it is not clear what exactly this attachment is seeking to do, whether it is actually saying agreements continued, whether they will just be observed, whether they form part of this agreement. It is most unclear what that means because there is nowhere else in this agreement which refers to attachment 6 as far as I recall and I am happy to stand corrected on that.
PN495
But as I recall there is no other reference to what attachment 6 actually means, whether it does seem to incorporate anything or not. But at best all that could incorporate was this 1995 Bioplasma Agreement. Then we get to - - -
PN496
THE SENIOR DEPUTY PRESIDENT: Sorry, can you just expand why you make that assertion, that it can only include the CPSU agreement?
PN497
MR GARDNER: Well, because the CPSU agreement was actually attached to the previous agreement. It is just most unclear whether in fact there has been an incorporation or not.
PN498
THE SENIOR DEPUTY PRESIDENT: Yes, my ring binder hole goes through the heading which I think is EA2 above paragraphs (a) to (g) where 12 hour shifts is mentioned, the heading in there is EA2.
PN499
MR GARDNER: Yes.
PN500
THE SENIOR DEPUTY PRESIDENT: Yes, I see.
PN501
MR GARDNER: So that is referring to the Bioplasma Agreement. I don't know if it is referring to another one there or not.
PN502
THE SENIOR DEPUTY PRESIDENT: Does that - - -
PN503
MR GARDNER: That is the point, that in '95 to '97 agreement there was reference to the Bioplasma. There was no maintenance 12 hour shift agreement at that time.
PN504
THE SENIOR DEPUTY PRESIDENT: Does the following paragraph have any effect, the other relatively minor or non continuous sub agreements?
PN505
MR GARDNER: I am not sure what that means. I point this out simply to say that it is actually by no means clear that there has been incorporation as my friend states. But even if there is, I come back to my primary point that the agreement on its terms doesn't prevent what CSL seeks to do. The agreement only operates on the premise that there are 12 hour shifts and what happens if there are 12 hour shifts. It doesn't operate where there aren't going to be 12 hour shifts, or where 12 hour shifts don't apply. That is quite a different consideration.
PN506
The AMWU next seeks to make some complaint about the lack of consultation. Now, they either do it through this very tortuous reference to clause 16.1 of the award. I have dealt with that earlier today and I don't propose to repeat myself there other than to say that clause 16.1 has nothing to do with, A, shift arrangements, or B, the very issue that we are dealing with here which is the closure of the shift. None of those things are touched by 16.1 and therefore the facilitative provision in the EA which might relate to that clause just isn't activated.
PN507
But they need that activated to say that there has to be agreement to do what we are doing. Clause 16.1 just doesn't apply. Then the argument is put that there is a redundancy and hence there ought to have been consultation. Now, let us assume that there is a redundancy and let us assume that therefore there ought to have been consultation but there wasn't, which we would dispute simply because it seems clear that from the period of time that the employees were given in June 2004 and September there were numerous meetings and numerous discussions which actually modified the intended outcome.
PN508
So they can't say that there has been any consultation. The consultation has had some impact. But, your Honour, even if there was no consultation, that doesn't lead them anywhere. It doesn't change the fact that there is an unanswered question as to whether the income maintenance provisions apply. It is yet another attempt to distract the attention of this matter away from where it needs to be, which is this income maintenance question.
PN509
It doesn't have any bearing on that question whatsoever. As to whether there are redundancies or not, the premise seems to be that it is the enterprise agreements which stand in the way of this change and therefore there needs to be some agreement in the enterprise agreement to this effect. Now, both employees state in their evidence, one confirmed it in cross-examination, I think it was Mr Robbie, that the reason why they thought that there would never been any change was because the enterprise agreement in and of itself effectively promises that the work that they would do would be fixed for the life of that agreement.
PN510
That seems to be the premise upon which they were operating and that is plainly not the case because it is not the agreement which dictates that. Unless the agreement said for employees who are working on 12 hour shift arrangements you will remain in those arrangements for the life of this agreement, that argument or that view is just not sustainable or open. There is no question that the work is still required. There is no question that the particular employees are still required. There is no question that the work is of the same nature and so there hasn't been any change in a sense contemplated by the agreement.
PN511
So we maintain strenuously that there is no redundancy trigger. But once again, if you are against us on that, the proposition that income maintenance applies simply because there has been a reduction of income simply does not follow. That really does militate against the clear words of the agreement which refers to lower levels and lower classification levels. One can't just ignore those words as the AMWU is seeking for you to do. They simply want you to read lower levels means lower pay levels.
PN512
The problem is earlier in the clause it says lower classification levels. If the union wants some added protection to deal with this sort of scenario then that is something which it can negotiate and a claim that it might be able to make down the track, but as it stands, unfortunately for the employees, there isn't that protection. Unless, your Honour, you have any further questions?
PN513
THE SENIOR DEPUTY PRESIDENT: I have just got one question, Mr Gardner. You have spoken a little bit about the consultation and the fact there has been I think, I would summarise your position as being there has been consultation, that is reflecting the fact that there has been adjustments made and some changes to the arrangements, but the meeting of 10 June would you go so far as to say that that was intended to be a consultative type meeting?
PN514
MR GARDNER: I don't think I could put it that highly, sir, no. But that mean that consultation was rendered fruitless? No. Indeed to the contrary, consultation had some work to do and had some impact and certainly the fact that the company provided three months notice of this change, something it didn't have to do, left the door open for further discussions and those discussions bore fruit. So at best, if you take the view that there is a redundancy, at best, at its highest, well, any breaches of a technical type nature because in substance what happened was that consultation did occur and it occurred to the benefit of the employees in question.
PN515
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN516
MR GARDNER: If it pleases.
PN517
MS CHEW: Your Honour, I will be brief. What my learned opposition did firstly was to raise the basis on which the AMWU unregistered agreement had any force. He said that it was premised - and I am not entirely understanding his point so I might not be phrasing it properly, but as I understand it he says it doesn't have any effect not only because it is unregistered but because it presupposes the existence or the lack of existence of the shifts. I am not entirely sure. I am not sure that it turns very much on whether it existed or not.
PN518
In any case, we say that there is uncontested evidence in the witness statements to say that in or around 1997 those two people were working 12 hour shifts, so we say that they were in existence. The agreement is to give effect to the agreement of employees to work the 12 hour shifts. Now, in any case, what we say is that your Honour should focus on this and this is that the award provides facilitative provisions in relation to flexible work hours. The fact that there is a CPSU agreement giving effect to that, the fact that there is an AMWU agreement, albeit unregistered, give effect and further shows that there is an obligation between the parties to negotiate and to agree.
PN519
Whether it is registered or unregistered we say shouldn't have any effect. We say the AMWU agreement even if it is unregistered is caught by clause 22 in the 2001 EBA. We say the focus is that you should look at the existence of these agreements and form the view that there was an obligation to consult and agree and that is the crucial thing that we are referring to. We say that there was an obligation to consult and agree. We say that that manifested itself in a CPSU agreement on 12 hour shifts, manifested itself in an AMWU unregistered agreement on 12 hour shifts and that is how you should view the agreement.
PN520
In any case as we submit, it is picked up by clause 22 of the 2001 EBA where it refers to 12 hour shift arrangements. Secondly just to pick up and this a purely evidentiary matter, I think the transcript will clearly that Mr Gale said the decision was final, there was no capacity for employees to change the outcome, the decision. He clearly said and I recall it very clearly, it was final. He and Narein decided, he then informed or asked HR as to what the proper processes were. If the applicant were to characterise subsequent negotiations or discussions as consultation we say that is a clear misconception of what consultation means.
PN521
Consultation as the Commissioner said in Vodafone is providing the individual's concern with a bona fide opportunity to influence the decision maker and it is Mr Gale's clear evidence that there was no such opportunity. We say the fact that Mr Gale gave evidence that he asked HR how to implement the decision shows that there was no consultation and no possible consultation as to the decision itself.
PN522
Lastly, I think my friend was talking about - he didn't frame it as such but he is referring to it as a no extra claims clause. What we say is this, the EBA contains obligations on the company, it contains obligations and responsibilities of employees. Certainly within the EBA there is scope for changes in employment. There can be terminations, there can be promotions and so forth. What we say is that if any of those things are to occur, for example, a redundancy, the company is obliged to observe the clauses in its agreements and in its prior award in carrying out its redundancy.
PN523
We have heard Mr Gardner go on and on about the income maintenance and how we rest our case on income maintenance and as we have submitted to you, yes, we submit that income maintenance should apply. In the alternative we say the company should pay out redundancy as it is obliged to do. We haven't heard any submissions as to what the company's view on it is. All we have heard is it is not a redundancy, go away. They have not made any attempt to address consultation or to address the proper payment of entitlements. That is my submission, thank you, your Honour.
PN524
THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Chew.
PN525
MR GARDNER: Sorry, I just want to clarify something on this consultation point if you don't mind, I will be brief. The AMWU seem to presuppose that consultation must necessarily take place before any decision and all I will say is, your Honour, that clause 3.2 and clause 3.3 don't necessarily state that. Clause 3.2 and 3.3 - - -
PN526
THE SENIOR DEPUTY PRESIDENT: Of which agreement?
PN527
MR GARDNER: This is of the redundancy provisions which are found in the '95 agreement and a reading of that makes clear that consultation can follow the decision. If it pleases.
PN528
THE SENIOR DEPUTY PRESIDENT: All right. Thank you, Mr Gardner. I thank the parties for being flexible today and also during the processes in the last month in getting submissions in. I will move quickly to issue a decision. Mr McClelland, I think in your job of corporate resources manager you should have a high priority rationalising the agreements of the company which because it does, I think, although that is an obvious point, it does complicate these matters when they come before the Commission and it leads to some uncertainty and confusion about people's rights and obligations. But the Commission will reserve its decision.
ADJOURNED INDEFINITELY [5.13pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
MARK STEPHEN McCLELLAND, SWORN PN139
EXAMINATION-IN-CHIEF BY MR GARDNER PN139
CROSS-EXAMINATION BY MS CHEW PN150
WITNESS WITHDREW PN222
LEO FRANCIS GALE, SWORN PN223
EXAMINATION-IN-CHIEF BY MR GARDNER PN223
EXHIBIT #C1 STATEMENT OF MR GALE PN227
CROSS-EXAMINATION BY MS CHEW PN231
RE-EXAMINATION BY MR GARDNER PN308
WITNESS WITHDREW PN312
BRUNO MARIO URLI, SWORN PN314
EXAMINATION-IN-CHIEF BY MS CHEW PN314
CROSS-EXAMINATION BY MR GARDNER PN319
WITNESS WITHDREW PN338
NORMAN ROBBIE, SWORN PN339
EXAMINATION-IN-CHIEF BY MS CHEW PN339
CROSS-EXAMINATION BY MR GARDNER PN346
WITNESS WITHDREW PN370
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