C2004/6750, Transcript of Proceedings [2004] AIRCTrans 4893 (13 December 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 9355

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C2004/6750
C2004/6751

APPLICATIONS FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Applications under section 127(2) of the Act
by VisyPak Operations Pty Ltd for orders to
stop or prevent industrial action

MELBOURNE

2.17 PM, WEDNESDAY, 24 NOVEMBER 2004

PN1

MR A. DOUGLAS: I am a solicitor and I seek leave to appear on behalf of Visy Cartons and VisyPak.

PN2

MR T. HALE: I am appearing on behalf of the AMWU and I would like to oppose the representation before the Commission of Mr Douglas.

PN3

THE SENIOR DEPUTY PRESIDENT: Mr Douglas, on what basis do you seek leave?

PN4

MR DOUGLAS: May it please your Honour. The matters that are before you involve a complex series of negotiations and discussions and laws based on Emwest arguments which I have been involved in throughout the process. Two of the three witnesses are the human resources officers who are the only skilled advocates in VisyPak and Visy Cartons and both will be giving evidence today and there is - I have been collecting the evidence but we only found out about it at 3.30 last night. Counsel, Mr McDonald was called off at another Visy matter at 12 o'clock today so the matter has fallen to me at 12 o'clock and I have had no chance to train or prepare anyone else and it would be a very complex matter to do that.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Hale.

PN6

MR HALE: Your Honour, Mr Douglas has in fact got a good hour's start on me if he was briefed at 12 o'clock. I am here more to assist the Commission as much as I can but I am afraid I can't assist very much at all. I have been attending a conference just down the road. I checked my messages at 1 o'clock and found out that this was on. I haven't had the chance to view any of the paperwork or indeed to talk to the organisers involved. I think Ms Cassin is tied up with the other Visy matter.

PN7

I am the Food and Confectionary Division Industrial Officer, although I did have some involvement in this argument prior to going on leave in September, I think, around that time, and there has been a lot of, as Mr Douglas pointed out, there has been a lot of things happen since the initial hearing before Commissioner Whelan back in September. So I am certainly not prepared to get involved in any complex legal arguments in relation to it and I haven't been briefed apart from a very short telephone conversation with Maurice Addison who picked it up when I went on leave and has been dealing with the matter since and that telephone conversation - Mr Addison is down in Gippsland - I mean the Latrobe Valley and couldn't get back in time from when he was notified of this.

PN8

So we would say that the union would be placed at a very serious disadvantage by Mr Douglas even though he says he has only been briefed since 12 o'clock. He has had the advantage of also being involved in the Federal Court matters and the machinations that went on through that process, so that we would be saying that we would be seriously disadvantaged by Mr Douglas's appearance and that I would flag that we would be seeking an adjournment in the matter until Mr Addison would be available and that could be as early as the Commission wanted to sit tomorrow morning. Thank you.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes, leave is granted, Mr Douglas. Go ahead.

PN10

MR DOUGLAS: May it please your Honour. I have some copies of documents when things were served. What we tried to do as soon as we were aware that this action was going to occur we served a draft copy of the 127 application. I have got copies here. I will just - - -

PN11

THE SENIOR DEPUTY PRESIDENT: On whom did you serve it?

PN12

MR DOUGLAS: We served it on everyone named in the application. I will just provide a copy to his Honour. And then we served the application and notice at the moment we received it by facsimile transmission and I understand that the criticisms that can be made of that process and I am advised by Melbourne solicitors today that there has been actual service in accordance with the rules. I have only got a letter as to that.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes, just a moment. Let us deal with the documents one at a time. You have handed up two sets of documents, what are they?

PN14

MR DOUGLAS: The first one is called Service of Draft Section 127 Application. That lists all the people who are referred to in both applications and their position, the date upon which the draft application that is before the registry gave us a notice of completed hearing date and the time that it was faxed through to those relevant people.

EXHIBIT #VISY1 BUNDLE OF DOCUMENTS RELATING TO SERVICE OF DRAFT SECTION 127 APPLICATION

PN15

THE SENIOR DEPUTY PRESIDENT: Yes.

PN16

MR DOUGLAS: The next one is called Service of 127 Application Together with Notice of Listing of Matter. These are the facsimile transmission history of the application and the notice being served again by a facsimile transmission the moment the registry provided us with that notice and the times down the right record those times and the documents behind demonstrate that the facsimiles went through at that time.

EXHIBIT #VISY2 BUNDLE OF DOCUMENTS RELATING TO SERVICE OF SECTION 127 APPLICATIONS TOGETHER WITH NOTICE OF LISTING OF THE MATTER

PN17

THE SENIOR DEPUTY PRESIDENT: Yes.

PN18

MR DOUGLAS: I have received a letter and I don't have copies of this and I will just show this to Mr Hale first. This is a letter from Cody's Solicitors dated today who arranged the process service to serve actually physically on the officers in Melbourne. Affidavits will be coming and I will tender those as we receive them. I have had a phone call from Michel Sillar, our Sydney solicitors, who also advised us that service has been completed but I haven't received a document as to time. So I will hand up the Cody's document, your Honour.

EXHIBIT #VISY3 FACSIMILE TRANSMISSION FROM CODY'S BARRISTERS AND SOLICITORS

PN19

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN20

MR DOUGLAS: Your Honour, I apprehend that Mr Hale has an application for an adjournment. It is strongly opposed, but do you wish me to sit down while Mr Hale makes that application?

PN21

THE SENIOR DEPUTY PRESIDENT: Do you want to apply for an adjournment, do you, Mr Hale?

PN22

MR HALE: Yes, I do, your Honour, in that we haven't had the opportunity to properly prepare for this case. There is protected industrial action on a fairly large scale taking place in relation to - - -

PN23

THE SENIOR DEPUTY PRESIDENT: Yes, I am aware of that. I declined a 127 order on behalf of a number of Visy companies the other day.

PN24

MR HALE: I understand that, your Honour, and that - - -

PN25

THE SENIOR DEPUTY PRESIDENT: This is alleged to be unprotected action in that it is action that pertains to sites where there is a certified agreement in operation.

PN26

MR HALE: And that is certainly as I understand it from the very minimal information that I have got in relation to it and that - - -

PN27

THE SENIOR DEPUTY PRESIDENT: Mr Hale, I think to help us both I will allow Mr Douglas to open his case and then we might be in a better position to know what it is all about, you as well as me, and then you can renew your application for an adjournment. Mr Douglas.

PN28

MR HALE: Thank you.

PN29

MR DOUGLAS: Your Honour, as a matter of courtesy I will provide Mr Hale with the application because he doesn't appear to have it on him.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN31

MR DOUGLAS: If I can just set out the background of the matter, your Honour. Both certified agreements, clause 29 in the Broadmeadows agreement and clause - - -

PN32

THE SENIOR DEPUTY PRESIDENT: Sorry, say that again.

PN33

MR DOUGLAS: Both enterprise bargaining agreements for the Coburg and Broadmeadows have clauses that deal with the protection of entitlements. The Broadmeadows agreement is clause 29 and the Coburg agreement is clause 28. Those clauses were inserted and evidence will be led, because this was the last issue left on the table and the parties simply couldn't reach a decision on it and they decided to plough and certify the agreements and hope to settle the matter later.

PN34

There were meetings that followed the certification of the agreement but the parties remained in the same places. Visy said we are happy to open our books and what the AMWU who is the major union in the process said, no, we won't either bank guarantees, we want trusts, we want something to secure the entitlements and there is even some disagreement as to what is an entitlement and what isn't. Those positions haven't changed today, your Honour. Later this year in around about August all three unions at Broadmeadows, which is the AMWU, the CEPU and the NUW, initiated bargaining periods under the Emwest argument because the agreements failed to provide an enforceable obligation but raised an issue that was left open, your Honour.

PN35

We initiated proceedings in the Federal Court and as a result of the initiation of those proceedings all unions withdrew their initiation of a bargaining period and we discontinued those proceedings. During that process there was a - - -

PN36

THE SENIOR DEPUTY PRESIDENT: Do you have evidence of that withdrawal?

PN37

MR DOUGLAS: Yes, I do have evidence. Mr Joyce will give that evidence and we have copies of all the documents that relate to that.

PN38

THE SENIOR DEPUTY PRESIDENT: Yes.

PN39

MR DOUGLAS: During that process there was a conciliation with Commissioner Whelan where the positions remained the same in transient positions and there have been subsequent meetings, paid meetings on site for union delegates, union organisations, even Mr Oliver to attend at Broadmeadows to explain the union' position to see if resolution and the bottom line is that there can be no resolution on this issue and that is where we are, your Honour. In the last two days there have been meetings at both sites and there has been no report back from the union following those meetings which is unusual and clearly a breach of the practice that has existed.

PN40

We have found out from a number of employees who have told supervisors and some of the witnesses here that there is an intention to take some strike action and a demonstration outside Visy Industries Dominion building starting tomorrow at 9 am and then each subsequent shift will take four hours out, as it were, in sympathy. They won't be obviously demonstrating but they will take us in the four hours out.

PN41

THE SENIOR DEPUTY PRESIDENT: Sorry, who is taking four hours off?

PN42

MR DOUGLAS: Both Broadmeadows and Coburg workers, with the exception of the NUW workers at Broadmeadows who disavowed the process and don't wish to be involved. So the reason we come before your Honour today is there has been substantial history of industrial dispute at both places. At Broadmeadows in fact we had to apply to the Federal Court on another matter where a 127 wasn't complied with and eventually got union undertakings to withdraw their industrial action.

PN43

There is loss that will be suffered. It is protected action and it is openly the position of the union - - -

PN44

THE SENIOR DEPUTY PRESIDENT: Unprotected action.

PN45

MR DOUGLAS: I am going too fast. Unprotected action, sorry, your Honour. And it is openly the position of the union that the reason they are taking this and prior action is to coerce Visy into coming into an agreement on entitlements. And we would say on that basis, A, we have all the jurisdictional issues covered, B, there is a very strong discretionary argument because this isn't just unprotected action. There is certified agreements in place and it is done for a very specific purpose, to get an agreement that the unions want from us on the protection entitlements.

PN46

Now, I can lead evidence to all those matters and you can see, your Honour, when we eventually were able to find out because no-one was telling us and they were actually being quite evasive when we were asking delegates what was going on, when we did find out we acted - I think I had put a draft in because we had heard a bit of a word around about 2 o'clock in the afternoon something may be happening. As soon as we found out for certain it was happening I filed the applications which probably explains why there is some words needs some corrections in orders if we were to get it that needs changing.

PN47

We immediately served the union with a draft application and warned them that we may not be able to comply with service but put them on notice. As soon as we received the registry notice we served and we have actually served them at all places, and during all that time the union have not come towards us, not advised us, not sought to discuss and there have been efforts made on the shop floor to actually find out what is going on and the best knowledge we have comes from the workers themselves who tell us what the resolution of meetings were. So that would be my opening, your Honour, and I can lead evidence to all those matters.

PN48

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I think you should lead your first witness and at that time I will hear Mr Hale on whether he is in a position to cross-examine or whether he wants an adjournment.

PN49

MR DOUGLAS: May it please. I will ask the other two witnesses to step out, your Honour.

PN50

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

<ROBERT JOYCE, SWORN [2.32pm]

<EXAMINATION-IN-CHIEF BY MR DOUGLAS

PN51

MR DOUGLAS: Your Honour, if it is of some assistance I will hand up some documents. I have provided Mr Hale with those and I will take you through those documents.

PN52

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN53

MR DOUGLAS: Mr Joyce, could you explain what your position is at Visy?---Yes, I am the Human Resources Manager for Visy Food Packaging. I have five sites. One is at Coburg, one is at Shepparton, one is at Wodonga, one is at Warwick Farm in New South Wales and one is at Clayton.

PN54

THE SENIOR DEPUTY PRESIDENT: Shepparton, Wodonga, Warwick Farm?---And Clayton.

PN55

That is four?---Coburg.

PN56

Coburg, thank you. I missed Coburg, thank you?---And Coburg we convert Blue Scope Steel into components for food cans so we make the bodies for cans and we make can ends.

PN57

MR DOUGLAS: Mr Joyce, prior to our appointment in that position what was the position you held with Visy?---For six months I was the Human Resources Manager with Visy Industries.

PN58

Were you involved in the negotiation of the enterprise bargaining agreement at VisyPak Coburg and Visy Cartons Broadmeadows?---I was involved with Coburg. I was not involved in Broadmeadows.

PN59

Now, there is in your bundle of documents an enterprise bargaining agreement for Coburg?---Yes.

**** ROBERT JOYCE XN MR DOUGLAS

PN60

That is the enterprise bargaining agreement you were involved in negotiating?---Yes.

PN61

I tender that, your Honour.

PN62

THE SENIOR DEPUTY PRESIDENT: That is the agreement that was certified by Commissioner Blair on 18 November 2003?

PN63

MR DOUGLAS: That is correct, your Honour.

PN64

THE SENIOR DEPUTY PRESIDENT: Yes. It is not customary to tender awards or agreements of the Commission. I have it.

PN65

MR DOUGLAS: Okay. In clause 28 there is a preservation of entitlements clause. Would you be able to explain to his Honour the background to that clause?---Yes. The issue of employee entitlements had been an issue which the parties had had some discussions about but had not been able to resolve it. The parties agreed that we didn't want to hold up the certification of the enterprise agreement and therefore the words in the agreement is that there are going to be further negotiations between the parties after the event to discuss and resolve the matter.

PN66

What was the position of the parties at the time of the enterprise bargaining agreement, what was their respective views?---The parties couldn't agree on the definition of employee entitlements. The company's position was that the employee entitlements were accrued entitlements, so accrued annual leave and accrued long service leave and the unions sought to have all money, for example, accrued annual leave, accrued long service leave and in the event that an employee was made redundant or redundancy payment and notice payment, put aside into something like a trust or a bank account.

**** ROBERT JOYCE XN MR DOUGLAS

PN67

And Visy's position?---Our position was that we had demonstrated that we were a company who are able to pay employee entitlements as and when they fall due and therefore we could not understand or agree to put the money into a bank account, but we were happy to have further discussions.

PN68

And the principal organiser involved in the negotiation?---Was Tony Mavromatis who is the Metals Division of the Australian Manufacturing Workers Union.

PN69

Now, looking at the documents that you have, there is a decision of Commissioner Grainger, if you could turn to that, please.

PN70

THE SENIOR DEPUTY PRESIDENT: In the big bundle or the small bundle?

PN71

MR DOUGLAS: The big bundle, your Honour. I am sorry, I haven't had an opportunity to index it, your Honour.

PN72

THE SENIOR DEPUTY PRESIDENT: That is all right. Yes, 20 May 2004, is it?

PN73

MR DOUGLAS: That is correct. Mr Joyce, could you give the background to that? I will just explain as a matter of convenience, that is a 127 application of the Coburg site, your Honour. The order was granted by Commissioner Grainger. It related to unprotected action?---This matter had been before the Commission on numerous dates. I think they appear on number paragraph 4. They had been before Senior Deputy President Williams and Commissioner Whelan on previous dates. The matter was that we had sought to transfer two employees who were in building 1, Little, so Little is a flat bed guillotine and they are covered by the Metals Award, to building 1, material preparation, which is covered by the Graphics Award. There was a provision in the - - -

**** ROBERT JOYCE XN MR DOUGLAS

PN74

THE SENIOR DEPUTY PRESIDENT: Sorry, you sought to transfer employees from building 1 or to building 1?---They were from building 1 but it was covered by the Metals Award, inside the same building to an area covered by the Graphics Award. We had discussions with the employees. We had discussions with the shop steward and also with the organiser and we believe we had complied with the agreement and the union and the organiser disagreed with that and they were placing restrictions on us to prevent us from doing the transfer. We had ongoing discussions and ultimately we went to the Commission.

PN75

MR DOUGLAS: Now, prior to going to the Commission on that occasions had recommendations been made?---Yes, there had. Senior Deputy President Williams and Commissioner Whelan had made recommendations on transcript and also confirmed in writing recommending that the bans and limitations be lifted.

PN76

And as a result of the decision of Commissioner Grainger an order was made?---Yes.

PN77

Are you able to give just a brief history of other industrial action that has occurred at the site?---As part of Visy Industries, Visy Industries has about something like 100 sites where we convert things in Australia. As a result of September 11 and the Bali bombing Visy Corporate made a decision to introduce a more rigorous security at all of our manufacturing sites. At Coburg it was decided by Visy Corporate to introduce a personalised swipe card on the front gate and the back gate and also for the visitor entry points and the union said because the company that had been engaged nationally by Visy Industries to install the security gates did not have an agreement, then they could not perform the work and ultimately we went to the Commission and Commissioner Whelan after two or three meetings wrote a recommendation that the work be completed by the contractor.

PN78

Now, there is a list in the small point that you have, your Honour, which deals with a summary of the costs of unauthorised meetings to a date. We haven't been able to bring that up to date. That was prepared for another proceeding. But can you explain to - - -

**** ROBERT JOYCE XN MR DOUGLAS

PN79

THE SENIOR DEPUTY PRESIDENT: This is at Coburg, is it?

PN80

MR DOUGLAS: This is at Coburg, your Honour, yes.

PN81

Could you explain to his Honour what that is?---Yes. Your Honour, in our previous proceedings we were asked to quantify the dates, the duration and the amount of the industrial action on site. So we provided this document. I note that the date of November 5 and February 24, February 27 and March 3 there are no issues noted there. I have since confirmed that the February 24, 27th and 3 March is to do with the Little which is ultimately before Commissioner Grainger and the matter for November 5 is of a similar matter but I was unable to get details of that. This demonstrates the fact that Coburg has had a number of industrial matters in recent history and that we have sought to have direct discussions with our employees, with the shop stewards and with their unions and then ultimately when that is failed we have come to the Commission to help us.

PN82

Now, if I can take you directly to the entitlements issue which brings us here today. You have a number of letters before you which set out - this is in the smile pile, your Honour - that sets out the history of the correspondence between the parties about entitlements and maybe, Mr Joyce, you can use those letters as a prompt and explain to his Honour what has occurred

PN83

THE SENIOR DEPUTY PRESIDENT: Do you seek to tender that, Mr - - -

PN84

MR DOUGLAS: Yes, I do.

EXHIBIT #VISY4 DOCUMENTS RELATING TO ENTITLEMENTS ISSUE

**** ROBERT JOYCE XN MR DOUGLAS

PN85

THE SENIOR DEPUTY PRESIDENT: Yes?---Your Honour, perhaps starting at the letter from Rob Wiencke. It is 9 September, all Coburg employees, protection of employee entitlements.

PN86

Yes?---Your Honour, there had been numerous meetings with Visy Industries and also Visy site people and Coburg site people and Broadmeadows site people at the highest level to discuss the issue of protection of entitlements. The reason for this letter from Rob Wiencke who is the operations manager at Coburg is that Rob Wiencke wanted to provide his employees at Coburg with a summary of progress in this matter and so what he did is that he drafted this letter and it was provided to all employees and put on the noticeboards.

PN87

Do you wish to tender that?

PN88

MR DOUGLAS: Yes, I do, your Honour.

EXHIBIT #VISY5 LETTER TO ALL COBURG EMPLOYEES DATED 9 SEPTEMBER

[2.43pm]

PN89

THE SENIOR DEPUTY PRESIDENT: Yes?---Your Honour, the reason why that was provided to the employees is that very late August/early September both Coburg and Broadmeadows received initiation of bargaining period from the unions and we sought to provide to our employees our position with respect to initiation of a bargaining period and that comes at paragraph 4 and it says:

PN90

The AMWU/ETU have requested the federal Industrial Relations Commission to approve a bargaining period in to reopen this issue at Coburg. An approved bargaining period will provide the unions and their members with the ability to take protected industrial action at this site. This is not agreed with the union's application to commence a bargaining period because your entitlements are safe.

**** ROBERT JOYCE XN MR DOUGLAS

PN91

Yes, I don't quite know what seeking an approval of a bargaining period, but anyway. Yes.

PN92

MR DOUGLAS: It was an initiation of a bargaining period relying on the Emwest decision. I think that is a fact which Mr Hale would concede to.

PN93

THE SENIOR DEPUTY PRESIDENT: Yes?---And then at paragraph 5:

PN94

Visy is concerned that reopening this issue may ultimately lead to industrial action at this site and any industrial action will affect you, production and our customers. For this reason we have advised the AMWU and ETU that we will seek to avoid industrial action by request of the Federal Court of Australia to issue an injunction to prevent any industrial action.

PN95

MR DOUGLAS: Mr Joyce, have you got a copy of the application and your statement of claim? I think it is in the big pile, isn't it?---Yes.

PN96

Your Honour, in the meantime I have the affidavits of service in respect of the Melbourne office of the AMWU and the CEPU.

PN97

THE SENIOR DEPUTY PRESIDENT: Yes. Do you have copies for Mr Hale?

PN98

MR DOUGLAS: I beg your pardon, your Honour?

PN99

THE SENIOR DEPUTY PRESIDENT: Do you have copies for Mr Hale?

PN100

MR DOUGLAS: No, they have come from the registry. They have been faxed to the registry but I will provide Mr Hale with it, look at it first and then I would ask to tender it.

**** ROBERT JOYCE XN MR DOUGLAS

PN101

THE SENIOR DEPUTY PRESIDENT: Yes well, just turning to the Federal Court, yes. Do you tender that?

PN102

MR DOUGLAS: Yes, I do, your Honour.

EXHIBIT #VISY6 APPLICATION TO THE FEDERAL COURT

PN103

MR DOUGLAS: Your Honour, I haven't brought the notice of initiation of bargaining period or the notice of discontinuance but I understand they are not contentious facts, your Honour.

PN104

THE SENIOR DEPUTY PRESIDENT: Yes. Well, Mr Hale may or may not know anything about them.

PN105

MR DOUGLAS: Are you able to say, Mr Joyce, what happened immediately after the issue of your statement of claim and application?---There was a - the unions approached the company and they advised us that they did not want to proceed with the matter through the Federal Court.

PN106

And they withdrew their initiation of bargaining period?---They withdrew the initiation. That was confirmed in writing.

PN107

And what happened to the proceedings?---They were discontinued.

PN108

Now, if you would continue to go through the correspondence that you have.

PN109

THE SENIOR DEPUTY PRESIDENT: Just before you do.

**** ROBERT JOYCE XN MR DOUGLAS

PN110

MR DOUGLAS: Yes, your Honour.

EXHIBIT #VISY7 FACSIMILE TRANSMISSION CODY'S THAT INCLUDES AFFIDAVITS OF SERVICE

PN111

MR DOUGLAS: May it please your Honour.

PN112

THE SENIOR DEPUTY PRESIDENT: Yes, now you may continue.

PN113

MR DOUGLAS: Thank you, your Honour.

PN114

MR DOUGLAS: Mr Joyce, if you could continue with the correspondence?---The next one is a letter from Maurice Addison to Andrew Douglas on 7 October and it outlines the AMWUs position at Broadmeadows and Coburg. Paragraph 2:

PN115

I express my disappointment that VisyPak is not prepared to reconsider a reasonable option such as bank guarantees or charges over property business to secure employee entitlements consistent with the commitments during the negotiations for the two site agreements.

PN116

Do you want me to read on or just to - - -

PN117

THE SENIOR DEPUTY PRESIDENT: I will read it to myself. Just give me a moment. Yes, I have read that.

EXHIBIT #VISY8 LETTER FROM THE AMWU, DATED 07/10/2004

**** ROBERT JOYCE XN MR DOUGLAS

PN118

MR DOUGLAS: Mr Joyce, the next letter?---The next letter is from an Anthony Thow, Assistant State Secretary from the National Union of Workers, dated 8 October 2004 and it is Paul Vinton. Paul Vinton is the General Manager Visy Cartons at Broadmeadows and that is advising both Commissioner Whelan and the companies and the other unions that they no longer wish to reach an agreement. They no longer with the bargaining period 2004/4822, they seek that terminated.

EXHIBIT #VISY9 LETTER FROM THE AMWU, DATED 8/10/2004

PN119

THE SENIOR DEPUTY PRESIDENT: Yes.

PN120

MR DOUGLAS: Mr Joyce, similar letters came from all three unions, didn't they, to each site, both Broadmeadows and Coburg?---Yes, I understand so.

PN121

The next letter?---The next one is from Jim Reid, dated September 10 to myself and it makes reference to, head, Outcome For Agreement On Preservation Of Entitlements and it restates the union's position. Your Honour, you might prefer to read through that.

PN122

THE SENIOR DEPUTY PRESIDENT: Yes, I will, thank you.

EXHIBIT #VISY10 LETTER FROM AMWU, DATED 10/09/2004

PN123

MR DOUGLAS: Mr Joyce, the next letter?---Yes. Your Honour, the next letter is from both myself, VisyPak Operations Coburg and Charles Gordon, Visy Cartons. It is dated 16 September. It is headed Preservation of Entitlements and it is to Jim Reid, Regional Secretary Printing Division, Australian Manufacturing - - -

**** ROBERT JOYCE XN MR DOUGLAS

PN124

THE SENIOR DEPUTY PRESIDENT: Just give me a moment to read that, please.

EXHIBIT #VISY11 LETTER FROM VISYPAK, DATED 16/09/2004

PN125

MR DOUGLAS: The next letter?---Your Honour, just to clarify it, the next letter dated 26 October 2004 from George Haggar to Dave Oliver headed Preservation of Employee Entitlements, that was a draft letter which has not been circulated. So it is not material so you can just put it to one - - -

PN126

We don't rely on it, your Honour. I am sorry, it has been a very hasty collection of documents.

PN127

THE SENIOR DEPUTY PRESIDENT: I will ignore that letter, yes?---Your Honour, if I could, the next letter is from myself, Robert Joyce and Charles Gordon. It is to Dave Oliver. It is dated 9 November and it is headed Preservation of Entitlements.

PN128

Yes, I will just read that.

EXHIBIT #VISY12 LETTER FROM VISYPAK TO MR OLIVER, DATED
09/11/2004

PN129

THE WITNESS: Your Honour, if I could just make an observation. The letter from Dave Oliver is 12 October and the letter from VisyPak is 9 November. The fact for the delay, if I could just clarify that, George Haggar's mother passed away and he had some time away from work and then when he returned to work the Visy divisions and Visy Corporate needed to have some discussions regarding the letter and so ultimately that is the reason for - the letter was sent but that is the reason for the delay.

**** ROBERT JOYCE XN MR DOUGLAS

PN130

THE SENIOR DEPUTY PRESIDENT: Yes. I don't have the letter that that is a reply to by the look of things. Yes, go on?---The next one, your Honour, is a letter dated 9 November 2004. It is from Wiencke, the operations manager at Coburg, and it is to Jon Zwart at Coburg. John Zwart is the senior shop steward metals at Coburg and the reason for this letter, your Honour, is headed Letter of Confirmation Paid Meetings Process. Commissioner, there had been a number of issues at site where the unions sought to have paid meetings. The matter of paid meetings was taken before Senior Deputy President Acton earlier this year and what the parties sought to do was to have a written confirmation of how the issue of paid meetings were to be addressed and this sets out how the paid meetings will be handled by the parties at Coburg and we note that the meetings that were held earlier this week with respect to preservation of entitlements were to be held in accordance with this agreement.

PN131

Yes, thank you.

EXHIBIT #VISY13 LETTER TO MR ZWART, DATED 09/11/2004

PN132

THE SENIOR DEPUTY PRESIDENT: Yes.

PN133

MR DOUGLAS: Now, Mr Joyce, you have two - sorry, there is more than two letters?---If I could, yes. The next one is a letter from Tony Mavromatis, metals organiser, to myself and Charles Gordon, dated 15 November and this is requesting both delegates to attend a meeting on Thursday, the 19th to discuss unresolved topic. So part of the meeting will be to discuss the unresolved topic of protection of employee entitlements.

EXHIBIT #VISY14 LETTER FROM AMWU, DATED 15/11/2004

**** ROBERT JOYCE XN MR DOUGLAS

PN134

THE WITNESS: Your Honour, the next letter from Charles Gordon and myself, dated 16 November, to Tony Mavromatis is our letter of confirmation in response to Mr Mavromatis's letter to us.

EXHIBIT #VISY15 VISYPAK LETTER OF 16/11/2004

PN135

MR DOUGLAS: Mr Joyce, if I can just stop you there. VisyPak and Visy Cartons have repeatedly provided paid meetings in relation to this issue of dispute, haven't they?---To the representatives, yes, when requested.

PN136

And as late as yesterday there were paid meetings to discuss the report back from those delegates, wasn't there?---Yes.

PN137

At what time were those meetings?---It was day shift so at Coburg, so it was consistent with the agreement, so it was day shift was at 7 am, afternoon shift was at 7 pm and the night shift was at 7 am this morning.

PN138

If you can just go to the next letter that is there?---The next is a memo from Rob Wiencke, operations manager, Coburg, dated 23 November, titled Protection of Entitlements and it is to all Coburg employees.

PN139

THE SENIOR DEPUTY PRESIDENT: Yes, just a moment.

EXHIBIT #VISY16 MEMO FROM ROB WIENCKE IN RELATION TO PROTECTION OF ENTITLEMENTS, DATED 23/11/2004

PN140

THE SENIOR DEPUTY PRESIDENT: Yes.

**** ROBERT JOYCE XN MR DOUGLAS

PN141

MR DOUGLAS: Can you tell me who received a copy of this memo?---Your Honour, this memo was photocopied and handed to all day shift, afternoon shift and night shift employees at Coburg by their shift managers. So it was afternoon shift got it first and night shift got it first. So last night, afternoon and night shift and this morning day shift received it.

PN142

THE SENIOR DEPUTY PRESIDENT: So it was handed to all the employees?---Handed to all employees and it will be put on all of the noticeboards at Coburg this morning.

PN143

MR DOUGLAS: And the on site delegates, did they receive it? Not the organisers but the delegates?---The site delegates, yes, they would have been provided a copy of it.

PN144

Mr Joyce, how did - I will ask that that be tendered, your Honour.

PN145

THE SENIOR DEPUTY PRESIDENT: Sorry, that was VISY16, I think. And then there is a similar I notice to the Broadmeadows employees.

PN146

MR DOUGLAS: Yes, your Honour. It is almost identical. The words vary in only one or two respects.

PN147

THE SENIOR DEPUTY PRESIDENT: Yes.

EXHIBIT #VISY17 MEMO IN RELATION TO EMPLOYEE ENTITLEMENTS GIVEN TO BROADMEADOW EMPLOYEES

PN148

THE SENIOR DEPUTY PRESIDENT: Yes.

**** ROBERT JOYCE XN MR DOUGLAS

PN149

MR DOUGLAS: Thank you, your Honour.

PN150

Mr Joyce, when did you become aware that industrial action was going to occur tomorrow?---Yesterday during the day we had employees approach shift managers and then the shift managers were coming to me, or the production managers were coming to me, to advise that as a result of the meetings that the employees had passed two resolutions. One resolution was to continue to pursue the issue of employee entitlements and the second matter was to take - it has been variously described as demonstration or a strike action out the front of the Dominion building which is in Little Lonsdale Street.

PN151

THE SENIOR DEPUTY PRESIDENT: What building is the Dominion building?---It's the Dominion building. It is where Visy Corporate have their head office.

PN152

MR DOUGLAS: And Slater and Gordon?---It is the Slater and Gordon building which I think it is at 55 - - -

PN153

So it is directly behind the Federal Court, your Honour.

PN154

THE SENIOR DEPUTY PRESIDENT: In Little Lonsdale Street, is it?---Little Lonsdale Street.

PN155

MR DOUGLAS: As a result of those discussions what time did you think industrial action was going to occur?---We were advised that there - - -

PN156

THE SENIOR DEPUTY PRESIDENT: Advised by whom?---Sorry?

**** ROBERT JOYCE XN MR DOUGLAS

PN157

Advised by whom?---The shift managers advised me. I have spoken to all of the shift managers. I have spoken to the production manager and the operations manager. They have all spoken to employees and what the information has been, that tomorrow morning at 9 o'clock there will be approximately three buses will come to Coburg and they intend to take people to the city so they can demonstrate out the front of the Dominion building.

PN158

MR DOUGLAS: And what will happen on subsequent shifts?---That the afternoon shift will leave work four hours early and the night shift will leave work four hours early.

PN159

Mr Joyce, the first thing raised is that the union were going t pursue the issue of entitlements. Was this to reach an agreement, was it, with Visy?---I presume so. We normally get report backs from Lorraine Cassin who is the organiser for the graphics section, or from Mr Mavromatis who is the organiser for the metals and neither have given us any feedback, but that is what we will presume it will be.

PN160

And what is the custom and practice about report backs after meetings?---The report back, the custom and practice has been that the organiser with a shop steward will speak to the operations manager, Rob Wiencke, usually immediately after the conclusion of the meeting, of the third meeting to provide us with some feedback.

PN161

Are you aware of any other AMWU activity occurring tomorrow in the city?---I have been told that the AMWU has arranged another meeting somewhere in Melbourne as to support the Craig Johnstone position but I don't have further details of that.

PN162

Would you be able to provide his Honour with what the lost opportunity or lost revenue cost would be for four hours?---Speaking to the financial people at Visy Coburg, they have advised me that if the Coburg site was to stop on three occasions for four hours, so it is effectively day, afternoon and night shift, approximately $48,000.

**** ROBERT JOYCE XN MR DOUGLAS

PN163

THE SENIOR DEPUTY PRESIDENT: So that is for one day?---Yes, effectively for 12 hours, yes.

PN164

Is it a 24 hour operation?---It is 24 so it would be four hours for day shift, four - - -

PN165

I see, yes. Yes, I see. So what is that $48,000?---That is to do with foregone gross sales. What we are doing is we are just about to enter into our peak fruit season. Some of our high profile customers include SPC Ardmona and we are trying to do a fruit stock build.

PN166

Yes, thank you.

PN167

MR DOUGLAS: Your Honour, I have no further questions.

PN168

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Hale.

PN169

MR HALE: Your Honour, I am only really in a position to cross-examine in relation to I guess what I would see as being the peripheral issues rather than the central issue in relation to whether there is impending or threatened industrial action. I have got no instructions whatsoever in relation to that. Certainly I could cross-examine in relation to the documents where my name is specifically mentioned which would include the decision of Commissioner Grainger and arising from my involvement in that particular hearing I do have some information that I could cross-examine

PN170

THE SENIOR DEPUTY PRESIDENT: Go ahead.

PN171

MR HALE: Sorry?

**** ROBERT JOYCE XN MR DOUGLAS

PN172

THE SENIOR DEPUTY PRESIDENT: Go ahead.

<CROSS-EXAMINATION BY MR HALE [3.04pm]

PN173

MR HALE: Okay. Now, in relation to your statement, I think you said in response to a question from Mr Douglas that the recommendations of Senior Deputy President Williams and Commissioner Whelan, can you recall what you said in relation to their recommendations?---That there were recommendations that bans however described should be lifted and the employees should perform the duties as requested.

PN174

And that was the only recommendation, was it? Was that the entire recommendation?---There had a been a number - I understand that the decision of Commissioner Grainger contains many of the recommendations there, at pages 2 and 3. I haven't had the benefit of reading through them.

PN175

Were you involved in those hearings before Commissioner Whelan and Senior Deputy President Williams?---Yes.

PN176

So you can't recall all of those recommendations?---I can read them.

PN177

THE SENIOR DEPUTY PRESIDENT: Well, so can I. The document speaks for itself. Your point which you have made, Mr Hale, is that the recommendations went beyond a resumption of work?

PN178

MR HALE: Well, that is correct. The recommendations were in fact a two way street.

PN179

THE SENIOR DEPUTY PRESIDENT: Yes, I can see that.

**** ROBERT JOYCE XXN MR HALE

PN180

MR HALE: Thank you. Now, in relation to - if I take you to VISY10.

PN181

MR DOUGLAS: Mr Joyce doesn't have them numbered.

PN182

MR HALE: Sorry. It is the letter from the Australian Manufacturing Workers Union dated 10 September to yourself and signed by Jim Reid, or pp on behalf of Jim Reid?---Yes.

PN183

Have you got that one in front of you? Does that reflect the discussions held in the Commission on that day, 10 September?---No, it does not.

PN184

So where do you say it varies from those discussions?---If I could. Look at the letter dated 16 September, I seem to recall that you and Lorraine Cassin were before Commissioner Whelan during the conference and you and Lorraine had made one reference, on suggestion about to resolve the matter and then the letter of 10 September, pp, presumably Lorraine Cassin for Jim Reid, then add some additional points that were not raised in the Commission and that is the reason why at paragraph 2 we wrote:

PN185

In our view, the matters raised in your letter are not consistent with the matters discussed before the Commission on 16 September, specifically the statements made by Tom Hale of your office regarding a proposed course of action. On many previous occasions we have made it clear that we will not accept the use of trusts, bank guarantee, bond or lean against our assets.

PN186

Okay. So what are you saying that I had said on that occasion and that you say in your letter:

PN187

Specifically the statements made by Tom Hale of your office regarding the proposed course of action.

**** ROBERT JOYCE XXN MR HALE

PN188

What was that proposed course of action?---The proposed course of action was to have discussions with the company to see if it was possible to resolve the matter but during the conference before Commissioner Whelan there was a reference to the fact that there would not be a requirement to have a trust, bank guarantee, bond or lean against our assets.

PN189

And you are sure that that is your recollection of what was discussed?---Yes.

[3.10pm]

PN190

I think that is about the limit of what I could cross-examine in relation to without having some instructions in relation to the matter.

PN191

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I will reserve you leave to further cross-examine this witness after you have got instructions.

PN192

MR HALE: Thank you.

PN193

THE SENIOR DEPUTY PRESIDENT: Yes. Do you have another witness, Mr Douglas?

PN194

MR DOUGLAS: Yes, I do, your Honour.

PN195

THE SENIOR DEPUTY PRESIDENT: You are excused temporarily, witness. You will remain on your oath until the next time you give evidence.

PN196

MR DOUGLAS: Your Honour, are you content if Mr Joyce sits in the court?

PN197

THE SENIOR DEPUTY PRESIDENT: Yes.

<THE WITNESS WITHDREW [3.10pm]

PN198

MR DOUGLAS: Mr Gordon. Your Honour, as a matter of expedition I won't take Mr Gordon through all the evidence that Mr Joyce has already dealt with. We will just deal with specific issues where there will be further knowledge.

PN199

THE SENIOR DEPUTY PRESIDENT: Yes.

<CHARLES GORDON, SWORN [3.11pm]

<EXAMINATION-IN-CHIEF BY MR DOUGLAS

PN200

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Douglas.

PN201

MR DOUGLAS: Thank you, your Honour.

PN202

Mr Gordon, what position do you hold at Visy?---I am the human resources for beverage packing division.

PN203

And what plants does that involve?---It involves about 17 plants across Australia and overseas and includes the Broadmeadows site.

PN204

Mr Gordon you were involved in the negotiation of the Broadmeadows Enterprise Bargaining Agreement?---Yes.

PN205

If you would just look in the documents before you you will have an enterprise bargaining agreement for Broadmeadows. Could you identify that one?---Yes.

PN206

Could you just say what date that was and - - -?---It is dated 11 November 2003 by the Commission.

PN207

Your Honour has a copy of that document?

PN208

THE SENIOR DEPUTY PRESIDENT: Yes, I do.

PN209

MR DOUGLAS: Thank you. Now, clause 29 of that agreement deals with the preservation of entitlements. Do you recall the discussions around preservation of entitlements at the negotiation time?---Yes, I certainly do.

PN210

And what was your understanding of how that clause came to be?---Well, we started the enterprise bargaining negotiations around about July 2003 and around about maybe October, towards the end of the enterprise agreement, this matter came on the agenda for discussion towards the end of the agreement.

**** CHARLES GORDON XN MR DOUGLAS

PN211

Prior to that particular clause being inserted had everything else been agreed?---Yes, absolutely.

PN212

And what was the position of the parties at the time of the insertion of that clause?---That we basically wanted to get the agreement signed off and certified, etcetera, and as you can see from the clause that it has been discussed during the term of the agreement once it was certified.

PN213

What was the position of the unions? What did they hope to achieve with that clause?---The same thing as mentioned up here.

PN214

And what was their position as to security entitlements? What did they want for security entitlements?---At that point in time they wanted the entitlements of annual leave, long service leave, etcetera, to be put into a bank account or some other thing as identified by the union.

PN215

And what was Visy's position?---Visy's position at that time was and still is at this point in time was basically to produce to the union, it can be audited by any of them as far as statement of accounts and as far as the accruals of annual leave, long service leave and sick leave.

PN216

Who was the principal organiser from the AMWU involved in the negotiation?---Tony Mavromatis.

PN217

Now, you are aware of industrial action that has occurred at the Broadmeadows site, aren't you?---Correct.

PN218

There is a decision of Senior Deputy O'Callaghan before you, would you be kind enough to find that? Have you found that?---Is this the one dated - - -

**** CHARLES GORDON XN MR DOUGLAS

PN219

THE SENIOR DEPUTY PRESIDENT: 23 September?---What date, your Honour?

PN220

MR DOUGLAS: It is the decision - your Honour, do you mind if I just approach the witness and locate it?

PN221

THE SENIOR DEPUTY PRESIDENT: No, go ahead.

PN222

MR DOUGLAS: Mr Gordon, you are aware of this decision?---Yes, I am.

PN223

Can you remember the circumstances as to why Visy Cartons approach the Industrial Relations Commission?---Because on about, I guess during the period, August I think it was, that the issue of protection of entitlements was brought up by the union once again to the site.

PN224

This related to a James Hardie rally, didn't it?---That is right, in reference to Hardie.

PN225

Yes, and involved a similar type of strike, four hours on each shift?---To what is being proposed for tomorrow.

PN226

And Senior Deputy President O'Callaghan granted a stop, a 127 order?---Absolutely.

PN227

And what happened the following day?---The following day the people on the day shift went out in support of the James Hardie rally.

PN228

And what occurred after that?---From that the people came back to work but they also proposed that the afternoon shift and the night also take the time off after that.

**** CHARLES GORDON XN MR DOUGLAS

PN229

THE SENIOR DEPUTY PRESIDENT: They did take the time off, did they?---Pardon?

PN230

They did take the time off, did they?---If I remember rightly, I am not very sure, but I think - I couldn't tell you exactly but I think they did.

PN231

MR DOUGLAS: Your Honour, if I can assist, they didn't take the time off. Do you remember a Federal Court - - -

PN232

THE SENIOR DEPUTY PRESIDENT: So it was just the morning shift?

PN233

MR DOUGLAS: Just the morning shift?---For the rally, sorry.

PN234

Yes. Do you recall why that was? Do you remember what action Visy took?---Visy went to Federal Court.

PN235

Was that to obtain an enforcement order?---Yes.

PN236

And do you recall the unions providing undertakings not to proceed?---Undertaking they are not to proceed for the afternoon shift and night shift, absolutely.

PN237

Your Honour, I will lead this and if Mr Hale objects I can take Mr Gordon through each document.

PN238

THE SENIOR DEPUTY PRESIDENT: Yes.

PN239

MR DOUGLAS: You are aware that the unions initiated bargaining periods in respect to preservation entitlements?---Yes.

**** CHARLES GORDON XN MR DOUGLAS

PN240

You are aware of Federal Court proceedings initiated by Visy Cartons and VisyPak?---Correct.

PN241

You are aware that there was a withdrawal of initiation of bargaining period?---That is correct.

PN242

And that the actions were discontinued by VisyPak and Visy Cartons?---Absolutely.

PN243

Your understanding about the continued pursuit of preservation entitlements is to obtain agreement with Visy Cartons about that?---Yes.

PN244

Yes, I have no further questions of this witness, your Honour.

PN245

THE SENIOR DEPUTY PRESIDENT: Yes. You have no knowledge about any action planned for tomorrow?---Pardon, your Honour?

PN246

You have no knowledge about any industrial action planned for tomorrow?---I have knowledge of that.

PN247

Are you leading that - - -

PN248

MR DOUGLAS: Your Honour, I was going to call the person who had better knowledge of that rather than - - -

PN249

THE SENIOR DEPUTY PRESIDENT: Very well, yes. Yes, thank you. Yes, Mr Hale, any cross-examination?

**** CHARLES GORDON XN MR DOUGLAS

PN250

MR HALE: I am not in a position to be able to cross-examine this witness, your Honour.

PN251

THE SENIOR DEPUTY PRESIDENT: Yes. Well, your rights will be preserved as best they can. Yes, thank you, you may be temporarily excused.

<THE WITNESS WITHDREW [3.18pm]

PN252

MR DOUGLAS: May it please your Honour. If Mr Gordon can sit in the body of the court?

PN253

THE SENIOR DEPUTY PRESIDENT: Yes.

PN254

MR DOUGLAS: If you could call Mr Ray Miller.

<RAYMOND MILLER, SWORN [3.19pm]

<EXAMINATION-IN-CHIEF BY MR DOUGLAS

PN255

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Douglas.

PN256

MR DOUGLAS: Sorry. Now, Mr Miller, can you please describe your position to the court?---Yes, my position at the moment I am the plant manager for the VisyPak Broadmeadows carton plant. I have responsibilities for the full site.

PN257

When were you appointed to that position, Mr Miller?---I have only been there a month today to be perfectly honest. I am fairly new to the position.

PN258

Mr Miller, you became aware of industrial action. Could you explain to his Honour how you became aware of information about the industrial action?---Yes, the main source of information was from the supervisor from the factory floor, both in morning meetings and with my walk around the plant this morning. I might also add, your Honour, that the supervisors at the Broadmeadows plants are union members as well. They are not staff supervisors so they are nonetheless supervisors from the factory floor. Though they have no official notification at this point in time they are certainly under the impression that tomorrow morning there will be a four hour stoppage from 9 am and that is what they were preparing me for.

PN259

Do you know what time that will be?---Well, 9 am I am told is the time that they will actually cease work at our plant.

PN260

THE SENIOR DEPUTY PRESIDENT: And what time do they start?---I think that they are expected to be wherever they are heading.

PN261

What time do they start work?---Sorry. Basically 7 am.

PN262

Yes.

**** RAYMOND MILLER XN MR DOUGLAS

PN263

MR DOUGLAS: Have you had an opportunity of speaking to the financial managers of Visy Cartons?---No, not at this point in time.

PN264

In respect to the loss?---I have been able to get some very much I think ball park figures through my production manager who is I think far more experienced. He has been through this before and so I think I can get a fairly accurate.

PN265

All right. For the four hours, just assuming it was only going to go four hours, what would be the loss of revenue during that time?---In terms of sales revenue the revenue would be around about the 90,000 mark, give or take maybe 10 per cent.

PN266

So if it goes off on each shift which is three times, is that right?---Yes, it is slightly less but it is close enough. Certainly in the afternoon shift it is not far away from that but the night shift is a fair bit less to be perfectly honest.

PN267

Yes, I have no further questions, your Honour.

PN268

THE SENIOR DEPUTY PRESIDENT: Did the supervisors tell you where they got their impression that there will be a four hour stoppage from tomorrow? Did you ask them about that at all?---Yes. Well, as I say, your Honour, the supervisors are also union workforce and they would have attended the meeting.

PN269

What did they tell you?---Sorry, your Honour?

**** RAYMOND MILLER XN MR DOUGLAS

PN270

What did they tell you?---Well, they indicated to me that there was a meeting first of all of the day shift yesterday where there was a very small majority favouring taking some sort of action and a stoppage but not enough for a clear majority and that they had another meeting on the afternoon shift last night, which I was led to believe it went for an hour and a half with fairly vigorous debate, but also the majority were in favour of supporting the union from that meeting as well. So their understanding was very clearly because of that combined meeting that therefore it would go ahead. They were also I think waiting to see something official but they certainly led me to believe that they had no doubt what that official notice would be.

PN271

Yes, thank you.

PN272

MR DOUGLAS: Your Honour, I did omit to ask one question.

PN273

THE SENIOR DEPUTY PRESIDENT: Yes.

PN274

MR DOUGLAS: Has Mr Mavromatis or any of the delegates approached you and advised you of the stoppage?---No, no. I was quite surprised about that. It is not something I have been used to in the past. I did expect to get some sort of feedback after the meeting. There was no formal report back to either myself or my production manager and my production manager did try and talk to some of our work site shop stewards and they were very non committal at this stage in terms of confirming or denying the rumour.

PN275

THE SENIOR DEPUTY PRESIDENT: Well, have you tried to contact them to ascertain whether what you have heard is correct?---No, your Honour.

PN276

Why not?---I guess I was under no disbelief in terms of what was intended and was waiting for that official notification so I could understand exactly what their intention was. I mean again I can only say as honestly as I feel, I am quite surprised we haven't had any feedback back at all and I was waiting for that for a reaction.

**** RAYMOND MILLER XN MR DOUGLAS

PN277

MR DOUGLAS: And as I understand Mr Perkins did approach them, didn't he? He is the production manager?---Yes, he did.

PN278

Sorry, your Honour, I couldn't get all the witnesses all in one go so we have just tried to weld this together as best we can.

PN279

THE SENIOR DEPUTY PRESIDENT: Yes, it is all happening as we speak, yes. Yes, Mr Hale.

PN280

MR HALE: I am not in a position to be able to cross-examine this witness either, your Honour.

PN281

THE SENIOR DEPUTY PRESIDENT: Yes, well, again your rights will be reserved as best I can. Yes. Yes, you may be excused, Mr Miller.

<THE WITNESS WITHDREW [3.24pm]

PN282

MR DOUGLAS: Your Honour, I have no more witnesses and that is the conclusion of my case.

PN283

THE SENIOR DEPUTY PRESIDENT: Yes. Well, Mr Hale, you have no material to put?

PN284

MR HALE: I have no material to put.

PN285

THE SENIOR DEPUTY PRESIDENT: Why shouldn't I make an order? It is pretty sound suspicion based on past history and from what the management has been told, that there is very likely going to be a stoppage of work for four hours on each of the three shifts tomorrow.

PN286

MR HALE: Well, I think that at this stage there was no concrete evidence that there was going to be a stoppage tomorrow and I am - - -

PN287

THE SENIOR DEPUTY PRESIDENT: Well, if there is no stoppage the 127 order will have no work to do, will it?

PN288

MR HALE: Well, I am not in any position to know whether there is a stoppage or not planned for tomorrow.

PN289

THE SENIOR DEPUTY PRESIDENT: Have you made any inquiries?

PN290

MR HALE: I attempted to make some inquiries in that I attempted to contact both of the organisers but I did have a very short period of time in which to attempt to do that.

PN291

THE SENIOR DEPUTY PRESIDENT: When did you do that?

PN292

MR HALE: That was after 1 o'clock.

PN293

THE SENIOR DEPUTY PRESIDENT: After 1 o'clock when?

PN294

MR HALE: Today.

PN295

THE SENIOR DEPUTY PRESIDENT: When did you find out about this?

PN296

MR HALE: The conference I was at broke for lunch at 1 o'clock. I checked my phone messages possibly five past one, 10 past one, something like that. There were a number of messages. One of them was from my office so it was probably about quarter past or 20 past by the time I knew that this hearing was on.

PN297

THE SENIOR DEPUTY PRESIDENT: Have you tried to contact Tony Mavromatis?

PN298

MR HALE: Yes, initially I tried to contact Lorraine Cassin in that I am more associated with the print than the metals and I was unsuccessful in contacting Lorraine. I then contacted back to the switch at our office and asked whether Tony Mavromatis was around the office anywhere and my thoughts there were that I would be asking Tony Mavromatis to bring any documents that were served and that I would meet him at the Commission. He wasn't in the office and I was unable to contact him on his mobile phone.

PN299

THE SENIOR DEPUTY PRESIDENT: Yes. It seems from the exhibits that your union was put on notice as early as yesterday afternoon at 3.40 pm with a facsimile having been sent to Mr Doug Cameron, the federal secretary and then very shortly after that facsimiles to Lorraine Cassin, Tony Mavromatis, Peter Thow, the National Secretary of the CEPU, which is not your concern, and David Oliver State Secretary of the AMWU with drafts of these applications and they were followed up with service of them this morning and yet nobody with any information has been sent to the Commission today.

PN300

MR HALE: Well, I can only speak on behalf of Maurice Addison and myself in that it is an industrial officers conference that we have been attending. Maurice wasn't available yesterday because he was in Canberra and he then went down to the Latrobe Valley this morning I believe and I don't know what time this morning and I attended the meeting last night starting at 4 o'clock at the conference and then I attended again at 9 o'clock this morning, or it was 8.30 registration for a 9.30 commencement and I hadn't been - I had been into the office this morning prior to eight but I hadn't been into the office while the staff were there.

PN301

THE SENIOR DEPUTY PRESIDENT: Yes.

PN302

MR HALE: Thank you.

PN303

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Douglas.

PN304

MR DOUGLAS: May it please your Honour. I would urge your Honour to make the order. I am more than happy to discuss how it is to be served and the nature of that order. I think that we have demonstrated in the evidence that there is industrial action, that it is threatening, impending and probable. There is an industrial dispute of some history over preservation entitlements. Visy is a party to that - both Visy businesses are a party to that and under that basis I would submit, your Honour, that jurisdictionally we are bringing this appropriately.

PN305

I think I can demonstrate service. In respect of the discretion that your Honour has to exercise, unquestionably it is unprotected action. I would say further that it is illegitimate action under the Coal and Allied Steel. It is a breach of 170MN and we would say more importantly it is a breach of 170NC because it is clearly being done with the purpose of coercing us to entering into an agreement. There is a history of an industrial action at both sites and more importantly at Broadmeadows a willingness to ignore what is made by this Commission.

PN306

There have been Federal Court proceedings issued to enforce where undertakings were given which lead to withdrawal of the Federal Court proceedings. We have pursued, as you can see, your Honour, through the correspondence a legitimate and open path in respect of this issue and we have clearly annunciated where we are and what we have had today is really delegates and organisers avoiding us and not telling us what is going on and I suspect in the hope that they can effectively drop it on us tomorrow without us being able to stop it.

PN307

I would say all those matters including the substantial loss of the business we will sustain are matters which properly should move your Honour to exercising his discretion. May it please.

PN308

THE SENIOR DEPUTY PRESIDENT: Yes, I will make the orders. It does appear to me that industrial action is threatened, impending or probable in relation to an industrial dispute being a dispute over employee entitlements involving the two Visy sites and the AMWU and possibly other unions. I am satisfied that the applicants are affected or will be affected by the industrial action. I am also obliged and have had the application as quickly as practicable and I am also determining as quickly as practicable. Mr Hale, do you want to say anything about the form of the order? You have the draft orders?

PN309

MR HALE: I did receive a copy of the draft order at the commencement.

PN310

THE SENIOR DEPUTY PRESIDENT: Yes. I should add that I am satisfied as to service and also the notice of intention to bring these proceedings.

PN311

MR HALE: Well, what I would say in relation to service, I suppose I should - certainly in relation to the CEPU I am not authorised to appear on their behalf but we were served a copy on the AMWU.

PN312

THE SENIOR DEPUTY PRESIDENT: Just a moment. Do you persist with your application in respect of CEPU? All the evidence I think has been in relation to the AMWU, hasn't it?

PN313

MR DOUGLAS: Yes, we don't have evidence specifically in respect of the CEPU. No, I don't think I can progress that - - -

PN314

THE SENIOR DEPUTY PRESIDENT: No, the order will only go to the AMWU.

PN315

MR DOUGLAS: Your Honour, can I just mention, I am sorry for cutting across Mr Hale, I believe Mr Hale has actually got my draft copy of the orders, but I believe that I have said for service on the members of the union that it would be by ordinary mail. I would change that to delivery in person. As soon as we get the order we will arrange for copies of it to be delivered to each and every employee.

PN316

THE SENIOR DEPUTY PRESIDENT: Visy will do that?

PN317

MR DOUGLAS: Yes.

PN318

THE SENIOR DEPUTY PRESIDENT: That is not imposing an obligation on the union.

PN319

MR DOUGLAS: Yes, your Honour. I shall sit down.

PN320

MR HALE: We would have some concerns about if it is intended to be delivering it to people's homes. If what they are saying is that they would distribute it in the workplace, on their evidence they are saying that the employees are intending to commence work tomorrow morning. There is some stresses that can be put on people's family lives by their employer delivering letters either by courier or personally, or however they intend to deliver them, around to people's homes during their own private time.

PN321

THE SENIOR DEPUTY PRESIDENT: Yes, I think there is some force in that. There is no impediment, Mr Douglas, to a copy of this order being given to each employee when he or she starts work tomorrow?

PN322

MR DOUGLAS: No problems at all. In fact we will serve as many as we can today if possible.

PN323

THE SENIOR DEPUTY PRESIDENT: Yes.

PN324

MR HALE: And the other thing in relation to determined date of effect, we would say that the issuing of the order that it remain in force until 30 June 2006 would be excessive and that any order should only be to avert the proposed the action of a four hour stop work meeting tomorrow which is the industrial action which is threatened, which the Commission considers is threatened, impending or appears that it is threatened, impending or probable. So that is all I have to say in relation to it, your Honour.

PN325

THE SENIOR DEPUTY PRESIDENT: Yes. I should say, Mr Hale, I understand your difficulty in cross-examining witnesses and although I have reserved your right to cross-examine. Obviously given the time of day today and the fact that the action is commencing tomorrow, there doesn't seem to be any possibility of you receiving instructions in time to further cross-examine. I don't know if you want to say anything further about that?

PN326

MR HALE: Well, it is not only cross-examine. I am not really in a position to call witnesses that may counter some of the information that was brought before the Commission.

PN327

THE SENIOR DEPUTY PRESIDENT: Yes.

PN328

MR HALE: Thank you.

PN329

THE SENIOR DEPUTY PRESIDENT: Yes, well, there are two draft orders, is that right, Mr Douglas? Can you hand me up copies of your draft orders?

PN330

MR DOUGLAS: Your Honour, they were e-mailed to you. I don't have them. I was travelling in a car when they were sent to you.

PN331

THE SENIOR DEPUTY PRESIDENT: Yes. It is just that one of them - it may not be. The one that I was looking at doesn't have enough pages because I think there is one on each file. Well, Mr Douglas, what I want you to do is to e-mail to my chambers as urgently as possible orders that remove the CEPU from the document and why should it run beyond tomorrow? The only evidence I have of industrial action being threatened is three stoppages tomorrow and I don't have any evidence beyond that.

PN332

MR DOUGLAS: Your Honour, the only reason - I don't ask for it to be until 2006. I suspect that the conduct we have had - - -

PN333

THE SENIOR DEPUTY PRESIDENT: Yes, you are looking for a whole of agreement order but on what I have heard today I couldn't - - -

PN334

MR DOUGLAS: No, I am not asking for that and I am sorry if that is the way it has come through. I would ask for three months though because this is something which has been - if we put it off for one day I suspect we will be here tomorrow, the day after that and the day after that. This is a fairly premeditated set of actions, your Honour, and we want some peace.

PN335

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that but I am making this order quickly, as I am required to under the Act, and being satisfied that industrial action is likely to occur tomorrow. I take your point that it would be very - that it may well be that if I make it for 24 hours it will be postponed by 24 hours. I think I would be prepared to make it for seven days. If you receive further evidence in relation to that I will give you liberty to apply to have the order extended and varied by extending the operative date.

PN336

MR DOUGLAS: Thank you.

PN337

THE SENIOR DEPUTY PRESIDENT: But I think that given that the union has not had an opportunity to test your evidence nor lead any evidence of its own it would be inappropriate to make the order operate for more than seven days.

PN338

MR DOUGLAS: If it please your Honour. So the amendments I will make are removing the CEPU and NUW from the Broadmeadows orders and removing the CEPU from the Coburg orders and making the time period for its operation seven days?

PN339

THE SENIOR DEPUTY PRESIDENT: Yes, and in relation to service of the order, I don't think that needs to be amended other than the removal of the CEPU. VisyPak shall supply a copy of the order to each of the members as soon as practicable. You will do that at the work site, not at their home addresses.

PN340

MR DOUGLAS: May it please your Honour.

PN341

THE SENIOR DEPUTY PRESIDENT: Yes. Well, as soon as those documents are to my chambers in the appropriate form I will issue the orders. How long do you think it will take?

PN342

MR DOUGLAS: Your Honour, I shouldn't imagine it would take more than 20/30 minutes and I thank your Honour for hearing it at such short notice.

PN343

THE SENIOR DEPUTY PRESIDENT: Well, that is my obligation under the Act. I am not doing you any favours. Mr Hale, what is the best way to get those orders to you once I have made them?

PN344

MR HALE: I would think that they would be faxed to the appropriate officers of the union.

PN345

THE SENIOR DEPUTY PRESIDENT: Well, would you read onto the transcript some fax numbers that will ensure that the orders get there, because I don't want to go through this business again of documents being faxed and then people telling me that it is the wrong fax, or it wasn't received, or it was the wrong person, or went through the system or whatever?

PN346

MR HALE: Well, I didn't make those submissions today, your Honour. I am just - - -

PN347

THE SENIOR DEPUTY PRESIDENT: No, you didn't and I am not wanting to have those made at any time.

PN348

MR HALE: I am just seeing if I have got a card with me. It is 923057 something and I don't know the last two letters. Well, Mr Hale, I will adjourn now but before you leave the Commission would you please provide my associate with the appropriate facsimile numbers to have those documents sent to you and that will constitute service. I indicate of course that as soon as I have signed them they will be available for collection as well, and Mr Douglas, I would require that you arrange to have the signed and sealed documents collected from the Commission this afternoon and certified registered post on the union at its registered office, as well as sending facsimile copies off to all and summary. Yes, I will adjourn.

ADJOURNED INDEFINITELY [3.43pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #VISY1 BUNDLE OF DOCUMENTS RELATING TO SERVICE OF DRAFT SECTION 127 APPLICATION PN15
EXHIBIT #VISY2 BUNDLE OF DOCUMENTS RELATING TO SERVICE OF SECTION 127 APPLICATIONS TOGETHER WITH NOTICE OF LISTING OF THE MATTER PN17
EXHIBIT #VISY3 FACSIMILE TRANSMISSION FROM CODY'S BARRISTERS AND SOLICITORS PN19
ROBERT JOYCE, SWORN PN51
EXAMINATION-IN-CHIEF BY MR DOUGLAS PN51
EXHIBIT #VISY4 DOCUMENTS RELATING TO ENTITLEMENTS ISSUE PN85
EXHIBIT #VISY5 LETTER TO ALL COBURG EMPLOYEES DATED 9 SEPTEMBER PN89
EXHIBIT #VISY6 APPLICATION TO THE FEDERAL COURT PN103
EXHIBIT #VISY7 FACSIMILE TRANSMISSION CODY'S THAT INCLUDES AFFIDAVITS OF SERVICE PN111
EXHIBIT #VISY8 LETTER FROM THE AMWU, DATED 07/10/2004 PN118
EXHIBIT #VISY9 LETTER FROM THE AMWU, DATED 8/10/2004 PN119
EXHIBIT #VISY10 LETTER FROM AMWU, DATED 10/09/2004 PN123
EXHIBIT #VISY11 LETTER FROM VISYPAK, DATED 16/09/2004 PN125
EXHIBIT #VISY12 LETTER FROM VISYPAK TO MR OLIVER, DATED PN129
EXHIBIT #VISY13 LETTER TO MR ZWART, DATED 09/11/2004 PN132
EXHIBIT #VISY14 LETTER FROM AMWU, DATED 15/11/2004 PN134
EXHIBIT #VISY15 VISYPAK LETTER OF 16/11/2004 PN135
EXHIBIT #VISY16 MEMO FROM ROB WIENCKE IN RELATION TO PROTECTION OF ENTITLEMENTS, DATED 23/11/2004 PN140
EXHIBIT #VISY17 MEMO IN RELATION TO EMPLOYEE ENTITLEMENTS GIVEN TO BROADMEADOW EMPLOYEES PN148
CROSS-EXAMINATION BY MR HALE PN173
WITNESS WITHDREW PN198
CHARLES GORDON, SWORN PN200
EXAMINATION-IN-CHIEF BY MR DOUGLAS PN200
WITNESS WITHDREW PN252
RAYMOND MILLER, SWORN PN255
EXAMINATION-IN-CHIEF BY MR DOUGLAS PN255
WITNESS WITHDREW PN282