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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 8922
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT ACTON
C2004/6204
C2004/6214
C2004/6438
COMMUNICATIONS, ELECTRICAL,
ELECTRONIC, ENERGY, INFORMATION,
POSTAL, PLUMBING AND ALLIED
SERVICES UNION OF AUSTRALIA and
ANOTHER
and
KONE ELEVATORS PTY LTD
Notifications pursuant to section 99 of the
Act of disputes re alleged forced redundancies
APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION
Application under section 127(2) of the Act
by Kone Elevators Pty Ltd for an order to
stop or prevent industrial action at the 49
Brady Street, South Melbourne site
MELBOURNE
4.30 PM, FRIDAY, 29 OCTOBER 2004
PN1
MR A. McCALLUM: I appear on behalf of the CEPU.
PN2
MR M. ADDISON: I appear on behalf of the Australian Manufacturing Workers Union together with MR B. WHEELAN.
PN3
MR R. MARASCO: From the Australian Industry Group and with me is MR P. SHELL and MR T. McDONAGH from the company.
PN4
THE SENIOR DEPUTY PRESIDENT: Mr Marasco?
PN5
MR MARASCO: Thank you, your Honour. this is an application pursuant to section 127 of the Workplace Relations - - -
PN6
MR McCALLUM: Could I just intervene for a moment. We are seeking the section 99 to be discussed here this afternoon. We would prefer to move to that if that is possible.
PN7
THE SENIOR DEPUTY PRESIDENT: Well, I have listed all the matters at the same time, I think.
PN8
MR McCALLUM: So does that mean ours goes first seeing it is numerically in front of - - -
PN9
THE SENIOR DEPUTY PRESIDENT: What are you proposing that I do with the section 99, Mr McCallum?
PN10
MR McCALLUM: We feel it has a bearing on all these matters. We were - - -
PN11
THE SENIOR DEPUTY PRESIDENT: Yes, but what is it you are seeking be done with it?
PN12
MR McCALLUM: Sorry?
PN13
THE SENIOR DEPUTY PRESIDENT: What is it you are seeking be done with it?
PN14
MR McCALLUM: We are seeking that the recommendation of the Commission be adhered to by the company, specifically the recommendation made by Commissioner Foggo recently.
PN15
THE SENIOR DEPUTY PRESIDENT: Yes.
PN16
MR McCALLUM: And that involves the - a process for redundancy and that termination would not happen without consultation with the unions in a proper manner which has not taken place.
PN17
THE SENIOR DEPUTY PRESIDENT: Yes.
PN18
MR ADDISON: Your Honour, could I just support the application made by my friend that the 99 be dealt with first. Your Honour, in my submission, this matter - the 127 application ought to be adjourned off. Your Honour, I put that submission on the basis of - a couple of bases, I guess. First of all, the draft order and the grounds for the application were served on the union late yesterday. I didn't get a copy of the application and the grounds until some time mid morning today when I became aware of the application. The grounds are fairly sparse, your Honour.
PN19
The grounds do not lay out in any detail the basis on which the application is put and therefore I have been unable, really, to get any instructions with regard to the meat - or the substance of the application, your Honour and on that basis I am at a bit of a disadvantage. Your Honour, it is a shutdown weekend in the construction industry. The employees in this particular company aren't scheduled to return to work until Thursday of next week in any event.
PN20
Indeed, as the construction industry is not due to return until Thursday of next week there would be no prejudice whatsoever to the company if the 127 were adjourned until, say, Wednesday and the matter could be dealt with on Wednesday after the Melbourne Cup on a basis the company could prepare some witness evidence which could be served on the union, say, some time on Monday. We could seek to get some proper and substantive instructions over the balance of Monday and into Tuesday and then we will be in a position to proceed with the 127 on Wednesday.
PN21
And if an order was to issue it would issue some time on Wednesday prior to employees being due to return to work in any event. So we say on the basis of a bit more information from the company as to how it puts its application would assist us. There is no prejudice to the company in terms of adjournment in any event. The section 99, we think, might help move the matter forward and we would seek to go into conference with regard to the section 99.
PN22
I have had some discussions with my friend, Mr Marasco, this afternoon. Mr Marasco has asked the union to lift the bans. Now, the union has said to Mr Marasco, if you are talking about the status quo, we are more than happy to return to a status quo. If you reinstate the person to the payroll, that you propose to make redundant, then we will lift all of our industrial action. We will have some discussions over the course of this weekend and see if we can reach an agreement. If not, we are happy for the matter to come back to either Commissioner Foggo who has previously dealt with this matter and has issued a recommendation.
PN23
THE SENIOR DEPUTY PRESIDENT: Commissioner Foggo is no longer dealing with the file.
PN24
MR ADDISON: Yes, so I said either Commissioner Foggo on Wednesday or yourself, your Honour, on Wednesday for some further conciliation to see if we can progress it. The company has said to us, no, they are not prepared to do that. Now, it seems to me, your Honour, that the appropriate proposition at this point in time would be to go into conference to see if we can flesh out the issues to see if we can reach an agreement. If we can, good, if not, we say come back Wednesday and deal with the matter in a proper and substantive way.
PN25
THE SENIOR DEPUTY PRESIDENT: Mr Addison, implicit in what you said is - there is industrial action taking place.
PN26
MR ADDISON: I haven't conceded anything, your Honour.
PN27
THE SENIOR DEPUTY PRESIDENT: Well, my understanding is you said we would lift the bans or something like that - I might be being over generous - if the status quo prevailed in that the employee was maintained on the payroll. I must say I read into one goes with t'other. If the industry is closed until - - -
PN28
MR ADDISON: Thursday.
PN29
THE SENIOR DEPUTY PRESIDENT: - - - Thursday, what is the, sort of, bans or whatever - - -
PN30
MR ADDISON: There is nothing that our members can do between now and Thursday morning which will affect this industry one way or t'other, your Honour.
PN31
MR MARASCO: Your Honour, can I interject, just very briefly, your Honour. I understand it is correct that the building industry does shutdown. This is a 24/7 operation. They do a lot of maintenance work. There is meant to be 70 employees on call over the weekend and holiday period to maintenance the elevators. So we are talking about 70 employees. It is very important and the company definitely wants to proceed today with its 127 orders unless there is an undertaking - - -
PN32
THE SENIOR DEPUTY PRESIDENT: So your submission is that there is industrial action going on which will affect work between now and when - Thursday?
PN33
MR MARASCO: That is correct, your Honour.
PN34
THE SENIOR DEPUTY PRESIDENT: Well, what have you got to say about whether I should deal - in light of that - whether I should deal with the 127 or the 99?
PN35
MR McCALLUM: Well, in terms of - I am here on the 99. I haven't been able to - the union hasn't been able to speak with its usual lawyer in regard to this matter and - - -
PN36
THE SENIOR DEPUTY PRESIDENT: When were you served, Mr McCallum, with the section 127?
PN37
MR McCALLUM: I am not aware what time it was. I saw some paperwork here this morning. Not here - - -
PN38
THE SENIOR DEPUTY PRESIDENT: When was the union served, Mr Marasco?
PN39
MR MARASCO: I am just trying to find the facsimile transmission report.
PN40
THE SENIOR DEPUTY PRESIDENT: Yes.
PN41
MR MARASCO: But it was definitely yesterday afternoon immediately after it was lodged with the registry, about 4 pm yesterday. I sent a copy to Dave Oliver and Dean Mighell and I further, pursuant to your order for substituted service last night, I also faxed them to the four - like the national secretary, state secretary of both unions, yesterday evening before I went home.
PN42
THE SENIOR DEPUTY PRESIDENT: So they at least had it by opening business this morning?
PN43
MR MARASCO: Oh, definitely, they had it twice because - I can attend to those - - -
PN44
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Marasco.
PN45
MR MARASCO: Yes.
PN46
THE SENIOR DEPUTY PRESIDENT: Well, Mr McCallum, what else have you got to say about whether I should deal with the 99 first or the 127 first?
PN47
MR McCALLUM: I would like you to deal with the 99 on the basis that we believe that will help resolve the matter and - yes, on the basis of industrial action, I am not aware of that apart from what the company has told me. So, you know, we are in this position.
PN48
THE SENIOR DEPUTY PRESIDENT: Okay, anything else you want to say, Mr Addison, about - - -
PN49
MR ADDISON: No, your Honour.
PN50
THE SENIOR DEPUTY PRESIDENT: Mr Marasco, about which one I should deal with first?
PN51
MR MARASCO: What I propose, your Honour, I just wanted to mention briefly about the 127 just for a few minutes to talk about the jurisdiction, the nature of the industrial action and then I would propose, if you are in agreeance to that course of action, to go into conference to go through the recommendation. There is a disagreement between the union and the company about whether the company has followed the recommendation. The company's position is that it has adhered to the recommendation issued by Commissioner Foggo and we are certainly happy to go through it in conference to indicate how we have complied with it and - - -
PN52
THE SENIOR DEPUTY PRESIDENT: Why would I do that in conference if you want me to hear the 127?
PN53
MR MARASCO: Well, in conciliation then; if we don't resolve it, we can go back on the record to pursue the 127.
PN54
THE SENIOR DEPUTY PRESIDENT: I am not sitting all night, Mr Marasco. I am sitting until, the latest, 5.30.
PN55
MR MARASCO: Right.
PN56
THE SENIOR DEPUTY PRESIDENT: So you better decide what you want to do between now and 5.30.
PN57
MR MARASCO: We will press with the 127 then.
PN58
THE SENIOR DEPUTY PRESIDENT: All right. Anything you want to say in reply about which one I should deal with?
PN59
MR ADDISON: Your Honour, I still press my application for an adjournment and even more so - well, depending on what my friend does. We haven't had any evidentiary material put to us. I presume my friend will be calling evidence. Now, if my friend does call evidence I am certainly not in the position to, necessarily, cross-examine, at this point in time. I don't know what evidence is going to be put. Your Honour, in terms of the application the grounds are pretty scant and the company is - the application simply lists six dot points which doesn't tell me anything, in reality, your Honour.
PN60
So I will foreshadow that if my friend does call evidence I will be seeking adjournment at the conclusion of evidence-in-chief to get some instructions. And we think the section 99 would be a much more productive way of dealing with the matter, particularly, your Honour, if you are only sitting until 5.30, the likelihood of finalising doesn't seem great. We could come back over the course of the weekend or Monday, possibly. I am available tomorrow. If the Commission pleases.
PN61
THE SENIOR DEPUTY PRESIDENT: Is there something else you want to say about the order, Mr Marasco?
PN62
MR MARASCO: We wish to proceed with it, we have got a representative - - -
PN63
THE SENIOR DEPUTY PRESIDENT: I hear that. Section 127 matters must be heard and determined as quickly as practicable. In light of that I intend to hear the 127 order first. Mr Marasco, you are aware of section 127(3)(a) concerning interim orders?
PN64
MR MARASCO: Yes, your Honour.
PN65
THE SENIOR DEPUTY PRESIDENT: Is it an interim order you are seeking?
PN66
MR MARASCO: Yes, it is, your Honour.
PN67
THE SENIOR DEPUTY PRESIDENT: Yes, well, proceed with your submissions.
PN68
MR MARASCO: Yes, thank you.
PN69
MR ADDISON: Your Honour, we want to be heard on that question of an interim order.
PN70
THE SENIOR DEPUTY PRESIDENT: Well, you will be after he gives his submissions.
PN71
MR MARASCO: Thank you, your Honour. Do you have a copy of the enterprise agreement, your Honour?
PN72
THE SENIOR DEPUTY PRESIDENT: I do, Mr Marasco.
PN73
MR MARASCO: Great, that is the Kone Australia Collective Bargaining Agreement 2003. We say that the industrial action that is occurring - - -
PN74
THE SENIOR DEPUTY PRESIDENT: That is not - the one I have got is called the ETU/AMWU/Kone - Victoria Construction and Service Employees 2003 Certified Agreement. Is that the right one?
PN75
MR MARASCO: That is correct, your Honour.
PN76
THE SENIOR DEPUTY PRESIDENT: Yes.
PN77
MR MARASCO: Yes. We say it is work covered by a certified agreement. It is an agreement that is in place at the moment.
PN78
THE SENIOR DEPUTY PRESIDENT: Is it an agreement that should have been certified having regard to the Electrolux decision?
PN79
MR MARASCO: I don't make a submission on that at this stage because there is no definite decision by the Commission yet about what the consequences of Electrolux are. I understand the President is convening - - -
PN80
THE SENIOR DEPUTY PRESIDENT: Does it contain payroll deduction of union dues?
PN81
MR MARASCO: I will just check, your Honour. I understand that it is not in this EBA, your Honour.
PN82
THE SENIOR DEPUTY PRESIDENT: Yes, thank you.
PN83
MR McCALLUM: Your Honour - - -
PN84
THE SENIOR DEPUTY PRESIDENT: Yes.
PN85
MR McCALLUM: - - - the matter of the union dues is covered in the previous agreement which is this agreement. The current agreement brings into play the previous agreement.
PN86
THE SENIOR DEPUTY PRESIDENT: Which clause does that, Mr - - -
PN87
MR McCALLUM: 19 of the Kone Victoria Certified Agreement 2000 and - - -
PN88
THE SENIOR DEPUTY PRESIDENT: Clause 19, is it - no, no, sorry which part of this agreement incorporates the terms of the previous agreement?
PN89
MR McCALLUM: Clause 9.
PN90
THE SENIOR DEPUTY PRESIDENT: And you are saying that clause - what was it of the previous agreement?
PN91
MR McCALLUM: 19.
PN92
THE SENIOR DEPUTY PRESIDENT: Clause 19 of the previous agreement contained payroll deduction of union dues?
PN93
MR McCALLUM: Yes.
PN94
THE SENIOR DEPUTY PRESIDENT: Right. Mr Marasco, prima facie, this agreement shouldn't have been certified. The Electrolux decision suggests, I think, subject to submissions, you might want to put about it - - -
PN95
MR MARASCO: Yes.
PN96
THE SENIOR DEPUTY PRESIDENT: - - - that payroll deduction of union dues is not a matter pertaining to the relationship between employers and employees. Hence the agreement is not about matters pertaining to the relationship between employers and employees in total, or relevantly, hence it shouldn't have been certified. Arguably then it is a nullity.
PN97
MR MARASCO: Only arguably, I concede that arguably it is a nullity, that was just, I think, passing comments by the High Court about what the effect is on an EBA of matters not pertaining. We are still to have a Full Bench decision and we are waiting for - - -
PN98
THE SENIOR DEPUTY PRESIDENT: Do you want a decision out of me about it?
PN99
MR MARASCO: Yes.
PN100
THE SENIOR DEPUTY PRESIDENT: On that particular matter?
PN101
MR MARASCO: Yes, certainly, your Honour.
PN102
THE SENIOR DEPUTY PRESIDENT: Now?
PN103
MR MARASCO: Yes.
PN104
THE SENIOR DEPUTY PRESIDENT: All right, what are your submissions in respect of that matter?
PN105
MR MARASCO: Our submissions are that it is still a matter to be determined by the Full Bench in Mercon, that there is no - it is not certain yet what the effect is.
PN106
THE SENIOR DEPUTY PRESIDENT: I can't wait for a decision of the Full Bench, Mr Marasco, I have to decide whether I have jurisdiction - - -
PN107
MR MARASCO: Yes.
PN108
THE SENIOR DEPUTY PRESIDENT: - - - in respect of this certified agreement or not.
PN109
MR MARASCO: Yes, well, we say you do have jurisdiction.
PN110
THE SENIOR DEPUTY PRESIDENT: Notwithstanding the fact that it has got payroll deduction of union dues within this agreement.
PN111
MR MARASCO: Yes, that is correct.
PN112
THE SENIOR DEPUTY PRESIDENT: Is that your submission?
PN113
MR MARASCO: Yes, it is, your Honour.
PN114
THE SENIOR DEPUTY PRESIDENT: Mr Addison.
PN115
MR ADDISON: Your Honour, I will be honest, I don't know what the answer is. I don't know whether the agreement is void or is voidable. The law is in conflict with regard to that question. There are two particular authorities with regard to these matters, whether an instrument is void or voidable. Is the authority in Max ex parte Saint, a High Court authority[2002] HCA 11; , (2002) 209 CLR, 597. And in that decision an instrument which was beyond power was held to be voidable, that is, it was valid until a Court declared that it was invalid.
PN116
Then of course you have got the other decision which is the - hard to pronounce - Bardwadj which is [2000] HCA 62; (2000) 204 CLR, 158 in which decisions of an administrative Tribunal were in excess of the jurisdiction. And in that case the High Court held that the decisions were void ab initio so the law is in conflict with regard to the authorities, there are authorities both ways. Our view, for what it is worth, your Honour, is that all of our agreements are validly certified. Our view - for what it is worth, your Honour, for what it is worth.
PN117
THE SENIOR DEPUTY PRESIDENT: I would just indicate to you, Mr Addison that you might suggest that to others in your office then in light of some proceedings I had the other day.
PN118
MR ADDISON: Well, our policy position, your Honour - - -
PN119
THE SENIOR DEPUTY PRESIDENT: A bargaining period was about to be initiated.
PN120
MR ADDISON: Our policy position, your Honour, is that all of our agreements are validly certified. All of our agreements are valid and a deal is a deal and when we have done a deal we will stick to the deal and we expect others to stick to the deal.
PN121
MR MARASCO: Well, we would agree with you in this case too and - - -
PN122
THE SENIOR DEPUTY PRESIDENT: No, no, I don't think he has finished yet, Mr Marasco.
PN123
MR MARASCO: Oh, no, I am - - -
PN124
THE SENIOR DEPUTY PRESIDENT: You can have another reply in a minute. You wanted me to deal with this issue. I have now heard your submissions. Mr Addison has given his. I am going to ask Mr McCallum to give me his and you will get a reply.
PN125
MR MARASCO: Okay, I will wait for that opportunity then.
PN126
THE SENIOR DEPUTY PRESIDENT: Good.
PN127
MR MARASCO: I am just conscious of the time, that is all, your Honour.
PN128
MR ADDISON: Your Honour - - -
PN129
MR MARASCO: Fast forward - - -
PN130
MR ADDISON: You opened it up, brother, you opened it up, I didn't.
PN131
MR MARASCO: Be more succinct.
PN132
MR ADDISON: As we know his Honour, Vice President Ross has just dealt with all of these matters in Ballantyne's case.
PN133
THE SENIOR DEPUTY PRESIDENT: And he has decided that payroll deductions is not a matter pertaining, I understand.
PN134
MR ADDISON: He has decided that payroll deductions is not a matter pertaining to the relationship between employers and employees. He has decided various other clauses are pertaining. There are some real issues that it opens up, in my mind, your Honour, not least of all, child support payments which are directed from employees' pay to the Federal Government. I am not sure that that is a matter that pertains to the relationship any more either, but put that aside, put that aside, your Honour.
PN135
THE SENIOR DEPUTY PRESIDENT: Are they in agreements, child support payments. They operate by law, don't they?
PN136
MR ADDISON: They could well be in some, I think. Your Honour, our view is - and we would prefer to support the proposition of the High Court in the ex parte Saint decision. We say that this - the current instrument before you is valid. It is possibly voidable but in our respectful submission, your Honour, you wouldn't have the jurisdiction, in my respectful submission, to void or to make the instrument void.
PN137
MR MARASCO: And we agree with that, your Honour.
PN138
MR ADDISON: You would in this particular circumstance.
PN139
THE SENIOR DEPUTY PRESIDENT: I wouldn't have the jurisdiction to make it void?
PN140
MR ADDISON: Well, the authority suggests - - -
PN141
THE SENIOR DEPUTY PRESIDENT: Void - it is void, I am not doing anything.
PN142
MR ADDISON: Well, indeed. The authority says the instrument - the authorities say that a voidable instrument is valid until it is declared void by a Court. Now, with all due respect to the Commission, it is not a Court, it is - - -
PN143
THE SENIOR DEPUTY PRESIDENT: That just begs the question of whether it is void or voidable.
PN144
MR ADDISON: That is right and that is exactly what I am saying, your Honour. The law is in conflict on that question. In my submission the instrument should be viewed as, at worst, voidable, not void. So, in my respectful submission, your Honour, the instrument is valid until a Court determines that it is void and as such you proceed on the basis that the instrument is valid. If the Commission pleases. God, I wish you hadn't made me do that.
PN145
MR MARASCO: And we would support Mr Addison's submissions.
PN146
THE SENIOR DEPUTY PRESIDENT: Well, just sit down, Mr Marasco, because I am yet to hear from Mr McCallum.
PN147
MR McCALLUM: Your Honour, the decision by Deputy President Ross, as I understand it - I am not a lawyer - the latest decision that has been made in this regard, and it is an interpretation of the High Court's decision that said all the agreements containing those clauses were void, and I think that would be the end of the matter. It is not us that is saying it, it is not any of these people saying it in this room, it is in fact the High Court that said it. And that has been supported in regards to particular clauses in the agreement and as you have rightly pointed out, union dues was one of those, or maybe the only one, as I understand it. So I would say it is void.
PN148
THE SENIOR DEPUTY PRESIDENT: Mr McCallum, have you got the previous agreement to hand up?
PN149
MR McCALLUM: Yes.
PN150
THE SENIOR DEPUTY PRESIDENT: Mr Marasco?
PN151
MR MARASCO: Yes, your Honour.
PN152
THE SENIOR DEPUTY PRESIDENT: The previous agreement is the Kone Elevators Pty Ltd Certified Agreement 2000?
PN153
MR MARASCO: Yes, your Honour.
PN154
THE SENIOR DEPUTY PRESIDENT: Which is incorporated in the ETU/AMWU/Kone Elevators Pty Ltd Victoria Construction and Service Employees 2003 Certified Agreement?
PN155
MR MARASCO: Yes, that is correct, your Honour.
PN156
THE SENIOR DEPUTY PRESIDENT: Yes, anything in reply on this issue?
PN157
MR MARASCO: Well, just to say that, as Mr Addison said, only a Court - a competent jurisdiction can declare that the agreement is void or voidable but I think it would be wise for the Commission to proceed on the basis that the agreement is valid until a Court declares otherwise and that would be our submission, that you do have jurisdiction in this matter.
PN158
THE SENIOR DEPUTY PRESIDENT: Well, I am not persuaded I have jurisdiction in terms of the certified agreement. In my view, given it contains payroll deduction of union dues, it shouldn't have been certified and therefore it is not a certified agreement. What else do you want to do, Mr Marasco.
PN159
MR MARASCO: Well, we still say you have jurisdiction because there is no bargaining notices in place. Either there is industrial action happening at the moment - - -
PN160
THE SENIOR DEPUTY PRESIDENT: Why don't you try - are they covered by an award?
PN161
MR MARASCO: Yes, are they are covered by an award. Yes, the MECA award.
PN162
THE SENIOR DEPUTY PRESIDENT: Yes.
PN163
MR MARASCO: So the Commission will have jurisdiction on that basis, your Honour.
PN164
THE SENIOR DEPUTY PRESIDENT: That is the Metal Engineering and Associated Industries Award 1998, is it?
PN165
MR ADDISON: Metal Engineering On-Site Construction - - -
PN166
MR MARASCO: Metal Engineering On-Site Construction Award.
PN167
THE SENIOR DEPUTY PRESIDENT: Metal Engineering On-Site Construction Award.
PN168
MR ADDISON: Yes.
PN169
MR MARASCO: Yes.
PN170
THE SENIOR DEPUTY PRESIDENT: Is that right?
PN171
MR MARASCO: Yes.
PN172
THE SENIOR DEPUTY PRESIDENT: Right, right, good.
PN173
MR MARASCO: Do you want me to proceed, your Honour
PN174
THE SENIOR DEPUTY PRESIDENT: Yes, please.
PN175
MR MARASCO: Yes, so we can rely on the award which is the National Metal Engineering On-Site Construction Industry Award that the company is bound by. Can I take you now to the industrial action, your Honour?
PN176
THE SENIOR DEPUTY PRESIDENT: Yes.
PN177
MR MARASCO: The industrial action is the bans that have been imposed on the company are as follows. No paperwork or reports from the field; ban on using the iPAC palm reader communicators field reporting machines; no overtime; no fixing of builders' lifts on constructions sites. AMWU safety reps are going to immediately go to all construction sites where Kone are working. The above bans are decided on at a sudden stopwork meeting on Thursday 28 October 2004 at 12.30 pm. There was withdrawal of labour from 12.30 pm onwards. There is an economic impact on the company which Mr McDonagh will take you to in his evidence. I will be calling him as a witness.
PN178
If I can take you to the jurisdictional issues, your Honour. First, we say, one, industrial action is happening, pending or probable. This is the case at Kone, there are industrial bans in place that Mr McDonagh will take you to in his evidence. We say that industrial action is taking place regarding work that is covered by an award and a certified agreement. So even if the Commission believes that the certified agreement is void or voidable it is still work regulated by an award. There is no valid bargaining periods in place or notices to take protected industrial action.
PN179
The third element is that the application is brought by a person who is likely to be directly affected by the industrial action and we say in this case, Kone is directly affected and has made that application. It is our submission that clearly the Commission has jurisdiction in this matter. In relation to the discretionary component on whether the Commission should exercise the orders I would like to make submission in that respect after you have heard the witness evidence from Mr McDonagh. Unless you have any questions for me on jurisdiction, your Honour, i would like to call Mr McDonagh as a witness.
PN180
THE SENIOR DEPUTY PRESIDENT: What do you say about your application and its reference to the certified agreement?
PN181
MR MARASCO: So even though the application for a 127 refers to the certified agreement, we say that it is still work that is regulated by an award as well.
PN182
THE SENIOR DEPUTY PRESIDENT: Yes, but my issue was, your - the order that you seek in this matter - you now say on an interim basis - - -
PN183
MR MARASCO: Yes.
PN184
THE SENIOR DEPUTY PRESIDENT: - - - applies to work and employment regulated by the ETU/AMWU/Kone Victoria Construction Service Employees 2003 Certified Agreement. In light of what I have just said about that agreement, what do you say?
PN185
MR MARASCO: Well, we would say that we would seek to amend that to insert the award as well - the relevant award.
PN186
THE SENIOR DEPUTY PRESIDENT: As well?
PN187
MR MARASCO: Yes, advise the parties.
PN188
THE SENIOR DEPUTY PRESIDENT: Yes, all right, do you want to call your witness?
PN189
PN190
MR MARASCO: Mr McDonagh, just for the record, could you please state your full name and address?---I am Thomas McDonagh (Address Supplied) and I am the field support manager of Kone Elevators.
PN191
And I tender, your Honour, a copy of a witness statement that we have just prepared for this witness. Mr McDonagh, do you have a copy of that witness statement in front of you?---Yes, I do.
PN192
Can you just take a minute to look through the entire statement, that is, five pages?---Yes.
[5.02pm]
PN193
Is that true and correct in every particular?---Yes, it is.
PN194
PN195
MR MARASCO: Would your Honour like a couple of minutes to read the statement?
PN196
THE SENIOR DEPUTY PRESIDENT: I think so. I am missing a page I think, Mr Marasco, I have got page 5 and nothing thereafter.
PN197
MR MARASCO: Yes, that is correct, it finishes at clause 11, your Honour, then it has got the name. It hasn't been signed.
**** THOMAS McDONAGH XN MR MARASCO
PN198
THE SENIOR DEPUTY PRESIDENT: Yes.
PN199
MR MARASCO: So the dispute in question, Mr McDonagh, surrounds whether or not Mr Ralph Murphy should be made redundant?---Correct.
PN200
And can you tell her Honour why or how Mr Murphy was selected for redundancy?---Right. In our redundancy agreement the actual process of selecting people for forced redundancy is fully spelt out, and it involves a certain criteria. All the actions all the tasks, or the activities that are mentioned in that criteria is what is in our performance appraisal. And we have used our performance appraisal to select people for redundancy, for forced redundancy.
PN201
Does your Honour have a copy of that agreement?
PN202
THE SENIOR DEPUTY PRESIDENT: Is it in the so called certified agreement?
PN203
MR MARASCO: No, it is not, your Honour.
PN204
THE SENIOR DEPUTY PRESIDENT: No, well I don't then.
PN205
MR MARASCO: Well perhaps - I have only got one - I will give you my copy, your Honour.
PN206
MR ADDISON: Your Honour, I have got a copy of that. Your Honour, I do want to address a question with regard to this document.
PN207
THE SENIOR DEPUTY PRESIDENT: With regard to what, sorry, Mr - - -
**** THOMAS McDONAGH XN MR MARASCO
PN208
MR ADDISON: The field redundancy agreement.
PN209
THE SENIOR DEPUTY PRESIDENT: Yes.
PN210
MR MARASCO: Maybe I could give - your Honour can have mine.
PN211
MR ADDISON: Your Honour, I don't want to interrupt my friend's flow, but the document that has just been handed to you raises some very urgent questions. Your Honour, Mr McCallum, who has very complete files, only has agreements back to 1997.
PN212
THE SENIOR DEPUTY PRESIDENT: Right.
PN213
MR ADDISON: There was agreements prior to 1997. Now you will note the date - I presume the top it has got a date on it.
PN214
THE SENIOR DEPUTY PRESIDENT: It has got - it says it is attachment number 2 at the top, and then underneath that at the left hand side it says:
PN215
Without prejudice.
PN216
And on the right hand side it has:
PN217
17 April 1996.
PN218
MR ADDISON: 1996, that is right.
**** THOMAS McDONAGH XN MR MARASCO
PN219
THE SENIOR DEPUTY PRESIDENT: Yes.
PN220
MR ADDISON: And it was appended to the 1996 certified agreement. Now, your Honour, we don't know what is in the 1996 certified agreement, we don't know if payroll deductions is in the 1996 certified agreement for instance. Now on the presumption that payroll deductions is not in the 1996 certified agreement, then this is a valid agreement. On the ruling that you have just given.
PN221
THE SENIOR DEPUTY PRESIDENT: Yes. Yes, and assuming it doesn't contain any other offending clauses.
PN222
MR ADDISON: Indeed. Indeed. And without prejudice to my position with regard to the ruling you have just made, obviously so, your Honour, there is a real question of fact that needs to be gone to here to determine whether this in fact is a valid agreement between the parties or it is not.
PN223
THE SENIOR DEPUTY PRESIDENT: Yes.
PN224
MR ADDISON: And it is a real live question, and it is a real live question with regard to your consideration of these matters. Clearly if this agreement is not valid then I would be relying on the case law, such as the Crown v the Industrial Commission of South Australia ex parte Adelaide Milk Supply Cooperative.
PN225
THE SENIOR DEPUTY PRESIDENT: Yes.
PN226
MR ADDISON: ..... General Motors Holden, and the more contemporary decisions of the Industrial Relations Court such as Kenefick with regard to selection criteria etcetera. If this agreement is valid then obviously I do rely on the terms of this agreement.
**** THOMAS McDONAGH XN MR MARASCO
PN227
THE SENIOR DEPUTY PRESIDENT: Yes.
PN228
MR ADDISON: Once again it simply adds weight, I think, to my earlier submission and my foreshadowed submission with regard to an adjournment of this matter.
PN229
THE SENIOR DEPUTY PRESIDENT: Suffice to say your position is that you think this agreement only has life to the extent that it is a catch to a valid certified agreement - a validly certified agreement.
PN230
MR ADDISON: Well, your Honour, there is no other mechanism that could give it life except common law - - -
PN231
THE SENIOR DEPUTY PRESIDENT: Yes.
PN232
MR ADDISON: - - - contract status, and there are some real questions there. And I don't want to start opening that up, your Honour, because we could be here until 3 o'clock in the morning.
PN233
MR MARASCO: And we don't want to get into that either. What I wanted to take you to, your Honour, is merely the process that was followed. I have asked Mr McDonagh why Mr Murphy was selected for redundancy, so putting aside the question of whether this redundancy agreement that we have just given you is void or voidable or certifiable, Mr McDonagh is giving evidence that he utilised that agreement to select Mr Murphy for redundancy.
PN234
THE SENIOR DEPUTY PRESIDENT: Yes. Yes.
PN235
MR MARASCO: And in any event there is redundancy provisions in the award as well that we say were complied with.
**** THOMAS McDONAGH XN MR MARASCO
PN236
THE SENIOR DEPUTY PRESIDENT: All I think Mr Addison was doing was putting you on notice about - - -
PN237
MR ADDISON: Adjournment.
PN238
THE SENIOR DEPUTY PRESIDENT: - - - queries that he would have over this agreement.
PN239
MR MARASCO: Yes, certainly, okay. Well we might move on then if it is all right with your Honour.
PN240
THE SENIOR DEPUTY PRESIDENT: Yes.
PN241
MR MARASCO: So can you - you have got a copy of that in front of you, do you, that attachment?---Of the agreement, no, but I have got a copy in my file there if I could get it.
PN242
Right. Well can we give you your file?---Yes.
PN243
I am just staying - - -
PN244
MR ADDISON: No, no, give him the agreement, not the file.
PN245
MR MARASCO: Maybe Mr Shell can find it and I will give you this one, just so we save time because the clock is ticking. So give the folder to Mr Shell, Mr Shell will find what we are looking for. Maybe I will tender a copy of that too, your Honour, which is the marked attachment number 2, Kone Elevators Pty Ltd Victoria.
**** THOMAS McDONAGH XN MR MARASCO
PN246
THE SENIOR DEPUTY PRESIDENT: Do you have the whole document?
PN247
MR MARASCO: No.
PN248
THE SENIOR DEPUTY PRESIDENT: So what is it attachment number 2 to?
PN249
MR MARASCO: Do you know, Mr McDonagh?---I think it is - yes - I think it was attached to the 1997 EBA. I think it went '95 and '97, and during that process this was produced.
PN250
THE SENIOR DEPUTY PRESIDENT: Do we have the 1997 EBA?---Yes. Yes, we do.
PN251
Can I have a look at it please?
PN252
MR MARASCO: Mr Shell will find it for you, your Honour.
PN253
MR ADDISON: Your Honour, if it is the 1997 agreement it does contain payroll deductions.
PN254
MR MARASCO: Yes. But in any event, your Honour, I just want to take you through the process briefly, that is all, so you know what the dispute is about, or how Mr Murphy was nominated for redundancy.
PN255
THE SENIOR DEPUTY PRESIDENT: Yes. But you chose him on the basis of the procedure you thought was outlined in a validly certified agreement.
PN256
MR MARASCO: Yes, which is consistent with the award.
**** THOMAS McDONAGH XN MR MARASCO
PN257
THE SENIOR DEPUTY PRESIDENT: Which is incorporated in an agreement that I have just decided should not have been certified.
PN258
MR MARASCO: Yes, that is correct, your Honour. But at no time did the union say during that process that they shouldn't have been using that process.
PN259
THE SENIOR DEPUTY PRESIDENT: I think they are saying it now aren't they?
PN260
MR MARASCO: Yes.
PN261
THE SENIOR DEPUTY PRESIDENT: Yes?---Could I also make another point?
PN262
MR MARASCO: Just wait a moment, I am not - did your Honour want to read that agreement or?
PN263
THE SENIOR DEPUTY PRESIDENT: I just want to make sure that this attachment is to it.
PN264
MR MARASCO: Sure.
PN265
THE SENIOR DEPUTY PRESIDENT: It would appear to be attached to that - no, hang on. In the document you have handed me there is no obvious attachment 1, and attachment 2 is not listed in the index. But just under clause 18 is clause 19 and clause 19 is union dues. Yes, go on.
**** THOMAS McDONAGH XN MR MARASCO
PN266
MR MARASCO: Yes. Well what I might do, your Honour, is just fast forward to the industrial action. Mr McDonagh, can you tell her Honour about how the industrial action will affect you over the weekend and how many people are working over the weekend?---We have a maintenance operation which is still in force even though the construction people are on holiday. The construction people are on holiday until next Thursday, but our maintenance people are still in operation. And if they carry out these bans Kone Elevators will lose quite a lot of money, particularly when - if I were to give an example - particularly on not using your iPAC machines to do maintenance. Because we have arranged for customers to have a real time hook up with these machines, so as we do maintenance the customers receives our reports. If they don't receive these reports as per the programmed maintenance that we worked out with them as planned we suffer a five percent penalty. On top of that the customer has got no proof that those works have been carried out because they have to be carried out in real time and transmitted on the electronic palm reader, so the works will have to be done again. We have put in our submission, in our statement, costs. We have said it will cost us in the region of 50,000 per month if these bans carried on.
PN267
THE SENIOR DEPUTY PRESIDENT: Where is this?---It is on page 2 of the - - -
PN268
MR MARASCO: That is your witness statement?--- - - - of the appearance document. Is that the Kone Elevators appearance document?
PN269
Yes, her Honour doesn't have a copy of that. That is just for my notes, your Honour, so if I can - her Honour doesn't have that in your witness statement?---Right.
PN270
So if you could just explain briefly about that, about the economic loss that the business will suffer because of the bans?---During the - whilst - can I ask another question? Is this whilst the construction people are on holiday or - - -
**** THOMAS McDONAGH XN MR MARASCO
PN271
Well, you tell us what the loss is?---Okay. Okay. Some of the main bans, if you look at the installation department, we install lifts which are used by the builders before the people move into the buildings, and these are called builders lifts. And they follow a program. First the builder does the construction, then the lifts are finished, then all the tradesmen use the lifts to finish the building, and the ..... come down. If the builders lifts are not fixed, if they break down, and they often break down because they are treated quite roughly, the entire site will come to a stop. We have got many buildings around town and we are in many of the major projects. Currently the penalties we face, if you take Freshwater for an example, are $64,000 per day. If all the workers are sitting in the sheds you are talking 500 workers at about $47 per hour, and that adds up to a lot of money, and we worked it out at something like 250,000 per day.
PN272
Can I stop you there, Mr McDonagh, because I would like her Honour to have an understanding of what the economic effects will be if the bans continue just up until next Thursday?---Right.
PN273
You have talked about the building sites?---That is on the installation site.
PN274
Right?---On the servicing site we operate a very clever electronic means of communicating with our customers, and that is we have a set program and when we do maintenance we must transmit in real time, both to our office and our office relays it out, the maintenance works that we have done. If we do not do them within a certain - on the day of when we are supposed to do them we suffer a five percent penalty.
PN275
THE SENIOR DEPUTY PRESIDENT: Five percent of what?---Of our premium, which is - - -
PN276
So how much money are we talking about?---You are talking - let me - you are talking 50,000 per month.
**** THOMAS McDONAGH XN MR MARASCO
PN277
So between now and next Thursday is six days, is it, Saturday, Sunday, Monday, Tuesday, Wednesday, let us say six to be generous. Six out of 30 by 50,000 is it, by five percent?
PN278
MR MARASCO: So one - - -
PN279
THE SENIOR DEPUTY PRESIDENT: Is that right?---What have I said? I have said five percent, 50,000 per month.
PN280
Five percent of 50,000 per month?---No. Five percent total, that is total, five percent of our monthly premium, that would be 50,000.
PN281
50,000, right, okay. So he is talking about - are we talking about 630 extra 50,000?
PN282
MR MARASCO: Do you understand the point, Mr McDonagh? So what - - -?---Yes. Yes. Yes, I do. You are trying to work it out per day.
PN283
THE SENIOR DEPUTY PRESIDENT: Yes?---Yes. 630 - 50,000, correct.
PN284
MR MARASCO: What was the formula again for per day, so I can use my calculator?---Well what we are saying is five percent of our monthly premium, which we have worked out - - -
PN285
THE SENIOR DEPUTY PRESIDENT: $10,000. If it is 630 at the 50,000 it is $10,000 between now and Thursday.
PN286
MR MARASCO: Yes. So is that just the one job though, Mr - - -?---No, no, no, we are not saying that, not at all. Plus we would also have to do that work again because it is in - because the customer will not accept - he will only accept it over the palm reader, and that is in real time when we scan our equipment as we maintain it.
**** THOMAS McDONAGH XN MR MARASCO
PN287
THE SENIOR DEPUTY PRESIDENT: Right. And, Mr McDonagh, as I understand it there has been some proposition put to you that there would be no problem if one employee was put back to work until we could hear this again. How much is that going to cost to put him back?---Probably not that much, no. But we have a number of employees, we are running out of work, we don't have work for everybody.
PN288
Yes, I know, but - - -
PN289
MR MARASCO: But perhaps can you tell her Honour about how many employees you want to make redundant and over what time frame?---We have previously been here, and we have explained, that between now and the end of the year we are looking to make redundant eight people in 2004.
PN290
THE SENIOR DEPUTY PRESIDENT: Yes?---And probably we are saying 15 people in 2005. And that 15 in 2005, that is open for review because that is such a long time away. We said we will review that again in February or March.
PN291
Yes?---Right. So these eight people that we are making redundant, we have called for volunteers - - -
PN292
Yes?--- - - - and we have accepted two-thirds of them.
PN293
Yes?---And - - -
PN294
How many people is that?---Well, those have already been made redundant.
PN295
Right?---The eight people who have got to go now are the forced redundancies.
**** THOMAS McDONAGH XN MR MARASCO
PN296
And when have they got to go by?---Between now and the end of the year.
PN297
So why did one have to go yesterday?---Because this is what we have previously told Commissioner Foggo - - -
PN298
Yes?--- - - - that we have run out of work for two people and they were just doing nothing, they had no job at all, they were merely at our store waiting for us to resolve our disputes with the union. They weren't doing no productive work at all. And Commissioner Foggo set down some stipulations in her recommendations and that we would follow those and then we could start the redundancies. What was fortunate from Commissioner Foggo's recommendations was that we had one volunteer when she reopened our voluntary period and that took the place of somebody else who would have been forced.
PN299
MR MARASCO: Now it is correct is it, Mr McDonagh, initially you wanted the redundancies to go ahead a couple of weeks ago when Commissioner Foggo suggested you delay?---Yes.
PN300
Can you just explain to her Honour about that process?---When we were here last with Commissioner Foggo she asked us, "When do you want this? When will you be starting to make people forcefully redundant?" And we said we are waiting now. And in fact as soon as we finish this this is when we want to make people redundant, and that is when she said, "No, you will not do this, you will do this after a week and after you do certain steps."
PN301
And have you followed that recommendation?---We believe that we have followed all of those steps.
PN302
THE SENIOR DEPUTY PRESIDENT: So what was the basis on which you selected the compulsory redundant person?---That was done on the basis of our performance appraisal, which captures all the items mentioned in our redundancy agreement which is on page 2 of our redundancy agreement. We had a meeting with the unions to talk about this, but they did not volunteer any suggestions on how to improve it.
**** THOMAS McDONAGH XN MR MARASCO
PN303
MR MARASCO: The union wanted last on first off didn't they?---Yes. They want last on first off and they want us to accept all volunteers.
PN304
And why don't you want to agree to that?---Because that would not maintain our skilled labour mix at all. Kone Elevators will still continue on past these redundancies.
PN305
Does it say anywhere in the EBA or the redundancy agreement that you have to do last on first off?---No. No, it does not, it mentions the same words that I said. Kone Elevators naturally will look upon people who are volunteered and will try their best to make those people redundant, but we have still got to look at the benefit of the company.
PN306
Yes. Can I - - -?---And which is why we have received a number of voluntary redundancies and we have made two-thirds of them redundant.
PN307
Right.
PN308
THE SENIOR DEPUTY PRESIDENT: So when did you pick - is it Mr Murphy who is the compulsory redundancy?---Yes.
PN309
When did you pick him?---That was during - it was basically from the close of business on the Friday the 22nd. Because at that time that is when the voluntary redundancies had ceased, the period, and we had one application, and that application fitted our skills base on what type of worker we believe should go.
PN310
Yes. So you only had one?---We were looking for two.
PN311
You decided you had to make one person redundant last Friday did you, you decided last Friday?---No, we always knew we had to make two.
**** THOMAS McDONAGH XN MR MARASCO
PN312
Yes?---Right? We had to make two.
PN313
You had - - -?---So we had an application and if it - - -
PN314
You had one voluntary?--- - - - so then we reviewed who we were going to make redundant and then finally picked on Mr Murphy.
PN315
MR MARASCO: When was Mr Murphy told that he was selected for redundancy?---He was told on the day he was being made redundant.
PN316
Which was the 27th?---Which was the 8th.
PN317
The 28th?---Yes.
PN318
Right, so yesterday?---Yes.
PN319
Yes. Can you tell her Honour about that process?---The process involved us informing his AMWU rep first.
PN320
THE SENIOR DEPUTY PRESIDENT: When did you inform the AMWU?---We informed him earlier in the morning that we were going to make Mr Murphy redundant that day.
PN321
Yes?---We then called in Mr Murphy and we explained to him that, which we have talked to the workers on numerous occasions over the last two months that we have got a decrease in workload and people will be made redundant, and that very unfortunately he would be made redundant, and that we are following the terms of our redundancy agreement, and we have made him redundant on the basis of the performance appraisal. And we went through the performance appraisal with him and his rep as to how he was selected.
**** THOMAS McDONAGH XN MR MARASCO
PN322
Right. And so you told him, "You are redundant and this is how we have done it," is that right?---In a nutshell I suppose. And this is how we have done it, yes. Yes.
PN323
Yes.
PN324
MR MARASCO: And who else was at that meeting, Mr McDonagh?---There was also David Craig, who is the installation manager. There were four people at that meeting.
PN325
So you, Mr Murphy, Mr Craig and Mr Wheelan?---No, the AMWU rep, which is Bob Pollard, he is an employee of ours.
PN326
Right. Okay, so the shop steward was there too. And what happened then, what was Mr Murphy's response?---Mr Murphy's response was that he was not accepting the redundancy and Mr Pollard's response was the same.
PN327
And what happened then?---And then they left the room and they waited until Brendan Wheelan, the AMWU organiser, came down.
PN328
And when did he come down?---He came down about an hour later. So that would be around mid morning or latish morning and basically he told us then that you will put Mr Murphy back on the books. You will re-employ him because he is on his way to a stop work meeting and if we do not give him that assurance he will put serious industrial action against us. And it will not be lifted until Mr Murphy is put back on the books.
PN329
And then what happened then?---And later in the afternoon Brendan Wheelan phoned me and he stated a number of bans that were to be placed against the company.
**** THOMAS McDONAGH XN MR MARASCO
PN330
And what happened after that?---And after that we got in touch with the AIG and asking for this meeting here to try and get our workers back to work or to stop these bans and for us to sort out our issues here.
PN331
Right. Okay. Your Honour, I am conscious of the time and you indicated what time we would be sitting to. Is there anything else I can draw your attention to or any particular evidence you wish to consider at this stage?
PN332
THE SENIOR DEPUTY PRESIDENT: No. No, I think it would be an idea if we went into conference.
PN333
MR MARASCO: Right. I am happy to go into conference too.
PN334
THE SENIOR DEPUTY PRESIDENT: Yes. You can stand down, Mr McDonagh. I will speak to the union side first.
SHORT ADJOURNMENT [5.34pm]
RESUMED [6.05pm]
PN335
THE SENIOR DEPUTY PRESIDENT: You remain sworn, Mr McDonagh. Have you finished your examination-in-chief Mr Marasco?
PN336
MR MARASCO: Yes, I have, your Honour.
PN337
THE SENIOR DEPUTY PRESIDENT: Mr McDonagh, in paragraph 10 of exhibit K1 which is your statement the first dot point about the industrial action is:
**** THOMAS McDONAGH XN MR MARASCO
PN338
No paperwork.
PN339
?---Paragraph 10.
PN340
Yes. It is the last page. Page 5?---Yes. Yes.
PN341
And there is several dot points at the end of it?---Yes.
PN342
It says:
PN343
No paperwork.
PN344
What is the effect of that industrial action?---I do not think - minimal really.
PN345
Okay. What is the effect of:
PN346
No reports from the field.
PN347
?---Minimal in the short term. Minimal in the short term.
PN348
Okay. What is the effect of the ban on using the iPAC palm reader?---That is quite a serious impact on our service department.
PN349
How?---Because - because we have many clients, many clients, who are now linked in to receiving reports from the iPAC palm reader. It goes straight to them. And we have a planned maintenance agreement with them. And we pay penalties if we do not comply with the plan.
**** THOMAS McDONAGH XN MR MARASCO
PN350
Well, but what are you - this is reporting to them is it?---Yes.
PN351
Reporting to them on what?---That we service the lift. That we do break downs on the lift. That we give them that.
PN352
So can you ring them up?---No. We cannot do that. This is a computer technology type thing. No, you cannot ring them up at all. You - our iPACs go, I think they go via our office or it goes directly to them, but it shows them what we have done on that day and that corresponds with what our previous plan is. That we will grease this, clean this, do that, adjust rollers.
PN353
Yes. But if you do not have the iPAC working between now and next Thursday?---Mm.
PN354
Won't you just tell them after next Thursday about what you have done?---We cannot communicate after real time. It will show that it has not been done. We will have to go back and somehow do it again and then communicate. It does not work the way you think it works. You will have to do it twice. Our iPACs have got scanners on them and dates and times.
PN355
Why would you have to do it twice?---Because it should be done - because it cannot relay that message again. It cannot store it and send it again.
PN356
Yes, but if it is not going now can't you do it next Thursday?---So what do our - - -
PN357
We serviced your lift on Sunday?---Right. Let's walk down this road - - -
PN358
Yes?---- - - that we service the lift today but we do not send them no report until when?
**** THOMAS McDONAGH XN MR MARASCO
PN359
Next Thursday, say?---Next Thursday. But it will not say that you serviced the lift on Thursday. You - it only sends real time reports. After you service the lift you then send it. It cannot store up all the information and send it next Thursday.
PN360
So if you send it - - - ?---It will look as if you - - -
PN361
- - - next Thursday it will look like you did it next Thursday?---No, you will have to do it again next Thursday.
PN362
No, hang on. You service a lift?---Mm.
PN363
Somehow you feed into a machine which then electronically relates it to another machine. Right?---Mm.
PN364
But you have to feed it into the machine?---Yes.
PN365
Someone has to manually feed it in don't they?---Yes.
PN366
Why can't you manually feed it in next Thursday what you have done on Sunday?---What - so that every - all - but that means they would have to go and they have a scanner.
PN367
Yes?---They would have to go around all the jobs again scanning. You do not feed it in by hand.
PN368
So there is some part of the lift which you scan to then - - - ?---If you are doing rollers. If you have lubricated this part or that part or that part you scan it.
**** THOMAS McDONAGH XN MR MARASCO
PN369
Yes?---You do not feed it in by hand.
PN370
Okay. And how many people are you going to have doing that between now and next Thursday?---We have - our service department they would all be working. They would be working with a reduced crew over the weekend but on Monday most of them will be working. Yes, we would have most of them working.
PN371
So how many crew would you have on the weekend?---I am not sure how many crew there are on the weekend. It could be eight.
PN372
And how many do you have on Monday?---We could be up to the 70. 70 people.
PN373
And how many will you have on Tuesday which is Cup Day?---That would be a reduced crew. You could be back down again to eight and on the Wednesday you would be back up to the 70 again.
PN374
And what is the effect of the ban on overtime?---Well, the ban on overtime would - that would have no impact on the service department. It would certainly impact on the installation side.
PN375
Are you doing installation between now and next Thursday?---No.
PN376
No fixing builder's lifts.
PN377
?---That would have an impact after next Thursday or on next Thursday. We come back on Thursday isn't it - yes.
**** THOMAS McDONAGH XN MR MARASCO
PN378
And, well:
PN379
The safety rec.
PN380
Is not industrial action I would suggest?---Well - - -
PN381
Why do you describe it as industrial action?---Because it came out - it arose out of a stop work meeting.
PN382
Okay. And:
PN383
All men have gone home for the day.
PN384
That was yesterday was it?---Yes. Correct.
PN385
Right. Did they return today?---Yes.
PN386
Okay. So the impact of the iPAC is not that the work will not be done but that it will not be reported?---It will not be reported and the - and it is in our contracts with our customers that it would read that as the work not having been done as per the plan. And we will suffer a penalty on those maintenance premiums and we will have to do the work again basically. We will have to go back over that again.
PN387
Okay. Mr Addison?
**** THOMAS McDONAGH XN MR MARASCO
PN388
MR ADDISON: Yes, thanks, your Honour. Your Honour, as I foreshadowed earlier I refresh my application from adjournment with regard to these proceedings. Your Honour, the witness statement that has been handed to me - was handed to me tonight. The evidence that has been led - I am not in a position to cross-examine properly. I will need to seek some instructions with regard to a cross-examination on these matters.
PN389
Your Honour, once again there has been no evidence to suggest as my friend suggested when I made my first application for an adjournment that there would be any impact over the course of the weekend with the exception possibly of those iPAC issues that you just questioned the witness on yourself. There is clearly, even if we were to accept holus bolus the evidence that the witness has given with regard to the alleged industrial action, there is no ban on calling people out if there is a problem.
PN390
I can inform the Commission that there are employees on shift who will be working over the course of the weekend. And will be available for the maintenance or break down work. It is clear from the evidence led in-chief that there is really no impact even if were to accept wholly the evidence that has been led without any testing there will be no impact in any real terms before next Thursday.
PN391
Now, your Honour, there is a recommendation which has been issued by Commissioner Foggo with regard to this matter. There has been no attempt by the company to bring this matter back before the Commission.
PN392
MR MARASCO: Or the union.
PN393
MR ADDISON: There are two section 99 applications in - which were notified by the union, by both unions, I should say. The company have had no interest in trying to resolve this matter in accordance with a valid instrument. And that valid instrument is the National Metal and Engineering On-site Construction Industry Award. Now the National Construction Industry On-site Award has a dispute settling procedure at that clause 10, your Honour. And that clause 10.1.2 is in effect the status quo provision:
**** THOMAS McDONAGH XN MR MARASCO
PN394
Where the above procedures have been followed work shall continue as normal. No party shall be prejudiced as to final settlement by the continuance ...(reads)... safety issue.
PN395
Now the company have unilaterally moved to change work as normal. The ultimate change I guess, your Honour, by terminating the employment of a person. A person who finds it hard to work as normal if he has been terminated. And we say as such they are in breach of the valid instrument which is the award. The company - this witness in fact has even given evidence-in-chief that the termination of the employee would contravene section 170CG(3)(c) of the Act in that the termination was because of the employee's capacity.
PN396
And the decision to terminate was made and that the decision was effected without giving the employee an opportunity to respond. There are some real questions that arise here, your Honour. And we think there ought be a proper opportunity for the union to make the case that is put against it. We say that natural justice would require that. We rely on the High Court's decision in Kioa v West, I guess, in terms of I think it was Mason J observations about natural justice:
PN397
Being that which is required in all of the circumstances.
PN398
And in all of the circumstances of this matter before you, your Honour, we say natural justice requires an adjournment of the matter for proper consideration of the evidence that has been led in the witness statement. There is no prejudice, your Honour. No prejudice to the company on the evidence that has been led. And on what I am putting to you from the Bar Table I put in the form of an undertaking if that helps, your Honour.
PN399
And that is that there is no difficulty with this company calling people out to do work over the weekend. And obviously there is no difficulty with them utilising the shift employees that they have rostered on over the weekend in any event. So, your Honour, we say an adjournment should be granted to the respondents in this matter for that purpose. If the Commission pleases.
**** THOMAS McDONAGH XN MR MARASCO
PN400
THE SENIOR DEPUTY PRESIDENT: Mr McCallum, do you wish to cross-examine?
PN401
MR McCALLUM: I would concur with Mr Addison's submission.
PN402
THE SENIOR DEPUTY PRESIDENT: Mr Marasco?
PN403
MR MARASCO: Thank you. We still wish to press for interim orders. We think it is appropriate in the circumstances that Commission exercises discretion to issue interim orders until at least next Thursday when the matter can be heard before you again. We are seeking I know, your Honour, an order for a period of three months. Accordingly the interim order could apply from today until Thursday or until such time as you are able to hear the substantive matter.
PN404
And that would give the union certainly ample time in which to review the matters in the witness statement of Mr McDonagh and seek any necessary instructions. But I think what is a very important issue is the potential economic loss and disruption to the business over the weekend because of the disruption and because of the industrial action.
PN405
THE SENIOR DEPUTY PRESIDENT: Yes. Is that all you want to say in respect of the application for adjournment and interim orders?
PN406
MR MARASCO: Yes. That in terms of the application for adjournment that we certainly oppose the application for adjournment and press our application for an interim order at least until when the substantive matter can be heard.
**** THOMAS McDONAGH XN MR MARASCO
PN407
THE SENIOR DEPUTY PRESIDENT: I will adjourn briefly.
SHORT ADJOURNMENT [6.20pm]
RESUMED [6.34pm]
PN408
THE SENIOR DEPUTY PRESIDENT: In this matter the company has sought that I issue an interim section 127 order pursuant to section 127 of the Act as a step on the road to consideration of the 127 order proper. I can give my decision in respect of the interim order sought. I am not persuaded as a matter of my discretion that I should order an interim section 127 order. I have come to that conclusion on a balance of considerations.
PN409
The evidence before me as to the industrial action the company will suffer before the Commission hears the section 127 application proper is that it is in practical effect limited to the ban on the use of the iPAC palm reader which in turn is used for field reports. The work associated with those reports, that is the work proper, however I am advised would still be done. On the other hand the evidence also reveals on the face of it that Kone has terminated the employment of one of its employees, Mr Murphy, without procedural fairness.
PN410
Bearing in mind then as I indicated the balance of considerations I am not persuaded that I should exercise my discretion to issue an interim section 127 order. I will relist the section 127 application proper for hearing at 10.30 am on Thursday 4 November 2004 here in Melbourne. I will now adjourn until that date.
ADJOURNED UNTIL THURSDAY, 4 NOVEMBER 2004 [6.36pm]
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