C2005/1615, Transcript of Proceedings [2005] AIRCTrans 143 (20 January 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10023

COMMISSIONER EAMES

C2005/1615

s.127(2) Application to stop or prevent industrial action-CFMEU and Boral Australian Gypsum Ltd re alleged industrial action at the Boral, Port Melbourne operation.

MELBOURNE

2.30PM, TUESDAY 11 JANUARY 2005

Hearing continuing

PN1

MR R. WAINWRIGHT: I appear on behalf of the Construction, Forestry, Mining and Energy Union.

PN2

MR R. DALTON: I seek leave to appear for Boral, together with MR A. PITTLE, who is the manufacturing manager.

PN3

THE COMMISSIONER: Thank you. I take it there is no objection to the appearance of Mr Dalton?

PN4

MR WAINWRIGHT: I have no objection on this occasion, Commissioner.

PN5

THE COMMISSIONER: Yes, leave is granted, Mr Dalton. Yes, Mr Wainwright. And thank you for bringing on this application so speedily. This is an application pursuant to section 127. The CFMEU alleges that the company is engaging in unlawful industrial action at their plant in Port Melbourne. And, Commissioner, you will be aware that the issues that we are discussing today were also the subject of an application pursuant to section 99 that was to be heard tomorrow, and some of the history of the application that I set down in my application crosses over with the section 99 application. Where I would like to start I think, Commissioner, is just to give you some documents that set the scene here. If I can hand up two letters.

PN6

THE COMMISSIONER: One is dated and the other is undated?

PN7

MR WAINWRIGHT: No. The letter from Mr Pittle is undated, Commissioner, but that precedes Mr Kingham's letter so I would seek to have that marked first.

EXHIBIT #W1 LETTER FROM MR PITTLE
EXHIBIT #W2 LETTER FROM CFMEU

PN8

MR WAINWRIGHT: Just to deal with those two pieces of correspondence fairly briefly, Commissioner. Mr Pittle corresponded with Mr Kingham, my recollection is that it was around about 10 December that Boral sent this letter off - they might tell us more specifically - basically pointing to clause 15 of the agreement and seeking a change in the manning levels for the board line. W2 is Mr Kingham's response, where he acknowledged the correspondence, and it says that the CFMEU is happy to discuss the matter and indicates that the matter is subject of dispute, and triggers formally the disputes resolution procedure. And to that end, Commissioner, we seek to tender the certified agreement.

EXHIBIT #W3 CERTIFIED AGREEMENT

PN9

MR WAINWRIGHT: Thank you, Commissioner. And obviously, Commissioner, at clause 15 it is mentioned in Mr Pittle's correspondence. You can find that at page 10 of the document, and the disputes resolution procedure is at pages 11 and 12. I would just like to take you to the relevant part of the disputes resolution procedure on page 12, which says that:

PN10

In the case of a dispute, operations or other matters the employees shall continue working during the operation of this dispute resolution procedure in accordance with safe working practices and consistent with established custom or agreed alternative practice which existed at the workplace prior to the development of the dispute.

PN11

So having viewed Mr Kingham's correspondence of the 14th, having triggered the disputes resolution procedure and specifically stated in that correspondence that we believe the status quo should remain, that being the status quo as to the manning of the board line, we say that not only has Boral breached their own disputes resolution procedure, but that breach constitutes unlawful industrial action within the terms of section 127 of the Act. And specifically what we are alleging, Commissioner, is that on the 4th, if not on an earlier occasion, the company made a unilateral decision to reduce the manning level on the board line, in doing so they were instituting a significant change, which is also dealt with in the certified agreement, but they instituted that change in circumstances that they knew a dispute already existed. And their section 99 application is evidence of that, as is our correspondence.

PN12

We say in the circumstances that that should give rise to orders being made, that their decision to reduce the manning level on the board line, it was a ban, limitation or restriction on the performance of work, and that in effect it was to perform work in a different manner to which it was customarily performed, that the industrial action is illegitimate, it is unprotected and it is continuing today. The effect of the industrial action has been severe, with the company attempting to unlawfully enforce a reduced manning level and with the work force attempting to work at the normal manning level. The company has stood employees down since 4 January.

PN13

So we have four shifts on the board line made up of eight people each, so we have 32 employees at Port Melbourne who have been stood down since 4 January. We are seeking today that the company undertake to cease their industrial action, they undertake to compensate the employees who have lost income due to the company's industrial action, and that they agree to participate in discussions about their proposals to reduce the manning levels on the board line. For our part the CFMEU remains committed to participating in those discussions.

PN14

Having briefly touched on the circumstances that we're perturbed about, Commissioner, we say that your powers in section 127 are in addition to your powers of conciliation, and we support the parties attempting in conference to overcome this dispute.

PN15

THE COMMISSIONER: All right, I follow all of that. I better hear from you, Mr Dalton, though.

PN16

MR DALTON: Thanks, Commissioner. It is still a little unclear to us exactly on what basis the application is brought and what exactly is said to be industrial action by the company. I thought perhaps just by way of initial response before the Commission decides how to progress this matter if I could just deal with the issue of reduction of manning by reference to the certified agreement that has been handed to you, W3. You will see at clause 15 of that agreement, Commissioner, it deals with manning and, indeed, paragraph (a) of the union's grounds in support of its section 127 application appears to accept that the company has a right to change manning levels. If you look at this clause, Commissioner, you will see that it opens with the phrase:

PN17

Notwithstanding that manning levels will continue to be determined and set by the company.

PN18

We would say that that does two things. Firstly, it acknowledges that the company has a right to determine and set the manning levels, and secondly, it recognises that that right is not a new one. In fact, I am instructed that a clause in very similar terms was in the 1999 enterprise agreement. The clause goes on to say:

PN19

Following the commencement of this agreement each board line shift will consist of seven employees as its normal complement.

PN20

Now, in my submission that says that in normal circumstances there will be seven employees in the board line on each shift. Now, there is a 12 hour shift worked on a 24 hour basis six days a week, and there are four crews. So you have seven employees. And then you will see that the next part of the clause or the next sentence says there will be an additional employee to cover for leave and other activities as determined by the company, so training and other such activities. So there is a seven plus one working arrangement in place from the commencement of the agreement. Then the clause goes on on the next page to say that:

PN21

Further reductions in manning levels may be made during the term of the agreement.

PN22

It is as explicit as that, and it says that those can occur as technological changes, plant or process improvements and/or training allow. So there is a clear recognition of the capacity of the company to reduce the number of employees in a particular area over the life of the agreement. Then the last paragraph in the clause, Commissioner, deals with the manner in which reductions in those levels will be achieved, and that is to be done through redeployment, retirement, resignation or redundancies, voluntary redundancies in the first instance.

PN23

Now, on my instructions the issue of reducing manning from the seven/one to a six and two, where you will have two employees available for other duties, for example, in the reclaim area or to perform training or other tasks as required by the company, that issue has been around for some time, and as early as late 2000 there has been meetings and discussions about how the company could move from seven to six in the board line area. Now, more recently, particularly with progressive improvements to technology and the processes which have resulted in less requirement for manning or handling, the company decided, made a definite decision to move from seven to six, and it communicated that decision on 9 December, that was the initial communication.

PN24

Before I take you to the chronology I should refer you to a couple of other clauses in the certified agreement that are relevant here. In particular, clause 22 is a fairly strong statement to the effect the agreement will not hinder or affect the right of the company to implement changes in the workplace. So you have clause 15 along with clause 22 being fairly strong statements in an industrial agreement like this of the capacity of the employer to implement a reduction in manning levels or implement a change.

PN25

Questions them may arise as to the application of other clauses in the agreement, Commissioner, that deal with consultation, and I will draw your attention to those clauses. There is one at clause 30, paragraph (g). It talks about a significant change. It is a question as to whether reducing manning from seven to six in the board line area is a significant change, but it requires employees to be consulted through the consultative committee or directly, and I emphasise these last words, Commissioner, and the issues raised taken into consideration in making the changes.

PN26

The next clause, Commissioner, clause 31, deals with where the company has made a definite decision to introduce major changes with respect to certain matters. Now, without needing at this stage to accept whether that clause is enacted in this particular case or not, you will see that that sets a process for consultation. Now, the reference to consultative committee, that is made up of show stewards and I think some other people, along with the manufacturing manager and the production manager.

PN27

Now, Commissioner, we have prepared a chronology which has some attachments to it which we believe demonstrates that the company has consulted adequately in relation to the proposed change, and that what it demonstrates is that the CFMEU has had ample opportunity to raise any issues or concerns it has about this reduction

EXHIBIT #D1 CHRONOLOGY WITH ATTACHMENTS

PN28

MR DALTON: I will try to just skip through this at this stage, Commissioner, just focusing on the number of occasions which Mr Andrew Pittle, the manufacturing manager, and Mr Gavin Stray, who is the production manager, have sat down and met with the shop stewards, the health and safety representatives, and on some occasions the CFMEU organiser Mr Ferguson. You will see Thursday, 9 December is the initiation of the communications with an announcement to employees. That is a document that was provided to the consultative committee on 9 December.

PN29

Mr Pittle agrees to the request of Mark Brereton, who is one of the delegates, not to record the matter of the proposed board line manning reductions in the consultative committee minutes just at that stage. On that day Mr Pittle sends that letter which I think is marked as W1 of the proposed change and requests consultation in relation to it. The next day, Friday, 10 December, there is another meeting with the site consultative committee, and after that the company distributes a letter to employees, which is in attachment 3. I don't need to take you to the detail of it, suffice to say it summarises what the company proposes to do and the reasons for it, and attached to that was what is at attachment 1, which is the more detailed explanation of the reasons for the change.

PN30

Now, there is a reaction to this in the form of some stoppages. It goes for about 36 hours I think from Monday, 13 December through to Tuesday. The next major piece of communication and consultation I would like to draw your attention to at this stage, Commissioner, is commencing Thursday, 16 December. You will see there is a reference to attachment six, which is a question and answer sheet which, in my submission, is quite an effective means of explaining why the company believes that a move from seven people to six people in the board line area is appropriate, and talks about the various improvements to the processes, et cetera that mean that that can be done. It is a fairly succinct document. Now, that was sent to all employees and shop stewards.

PN31

There is some further discussions on Friday, the 17th, in particular a meeting with management, the shop stewards, and Mr Flanagan, who is the CFMEU organiser. Now, on my instructions the issues raised in that meeting weren't really about the six and two proposal, but other unrelated matters. There is another meeting on Monday, 20 December, that is a meeting between management, I think some of the shop stewards, and Mark Ebejer, who is the health and safety representative, talking about the proposal.

PN32

The next day, Tuesday, 21 December, another meeting. Mr Flanagan is involved again, as are some of the delegates and managers. And it is in this meeting that there is a response to issues that were raised by Mr Mark Brereton, one of the delegates. Mr Brereton produced a document which is at attachment seven, Commissioner. I don't propose to take you to the detail of it just at this stage. Simply to say that he doesn't believe that the various technological changes that the company has pointed to result in a sufficient reduction of manual handling and I guess tasks required of operators that would justify a move from seven and six. However, it is important to note on page two of that document you will see below the last dot point, you will see he says:

PN33

As you have stated this change does not introduce any additional health and safety risks, but we do not accept that this re-allocation does anything to address the current issues that are yet to be attended to. We are yet to see standard operating procedures, risk assessments or training plans.

PN34

So he accepts that moving from seven to six doesn't create any additional OHS issues that are already there associated with seven people there. And he raises issues that on my instructions are issues that are there already that require addressing through the normal processes. So there is a response to those issues that he has raised in that meeting on 21 December. Then there is another meeting the next day with the delegates, another document produced by Mr Brereton, and the following day on 23 December there is another meeting involving substantially the same people, and Mr Pittle responds to the issues that were raised in Brereton's second document.

PN35

On 24 December there is another meeting, and then Mr Ebejer has raised a number of provisional improvement notices identifying certain OHS matters, so that is the day before Christmas. Now, then there is the shut-down period, Commissioner, so people weren't working over that time, and, on 4 January, which is the date that people were due back at work and due to work the six and two, there was a stoppage of work. There hasn't been work performed since that time because the employees are not prepared to work in accordance with the new manning levels that the company has set.

PN36

You will see there is some further attempts to hold discussions, but in essence the delegates by late December have decided there was no point in having any further discussions. Now, Commissioner, it is our view that the company, when you see that there were the two initial meetings with the consultative committee, and then there is no less than I think five separate meetings with the people who were involved at the workplace, that the CFMEU has had plenty of opportunity to raise the issues and concerns about moving from seven to six.

PN37

There are only two issues of substance on my instructions that have been raised. The first one is, well, what is going to happen in relation to meal breaks? And the company responded to that, and it is the company's view that the issues of meal breaks can be handled quite satisfactorily moving from seven to six, and that is not a reason to prevent the change. The second issue that was raised is, well, you talk about two people working outside of the board line area, how is that to be dealt with? And the company proposes that that is to be done by way of rotation for everybody, because when you work in the reclaim area you will have a lot more manual handling, but you will also have the opportunity to do training because you won't be working full time on the board line, and the company would like to rotate everyone through that. It thinks it is a fair way and it also maximises the opportunities for training for people.

PN38

Now, the company has also said that, well, it is up to the union if they have better alternatives to put forward based on their feedback from employees, then the company is more than happy to hear from them in relation to that. Apart from that the only concerns that have really been raised is this view of the delegates it seems that the various process improvements that have happened over all the years still don't mean that you should move from seven to six. Now, the company doesn't accept that and has put forward why it thinks that there is plenty of opportunity and plenty of time for people to do the work that they're required to do with six people rather than seven.

PN39

And there is no additional health and safety concerns. At its highest you will see from the second document that was put in by Mr Brereton after his first document which accepted that there weren't any additional health and safety concerns, he decided that there were health and safety issues. You will see this at the bottom of page one of attachment 11. It says:

PN40

Lower manning levels will increases stresses upon the workers during times of system failure.

PN41

So he is saying if things go wrong because you have got six people instead of the seven, that they will be working harder. Well, the company has responded to that and doesn't believe that that is going to be a concern, certainly not a health and safety concern. Commissioner, in essence we say that the company clearly has a right under the certified agreement to do what it proposed to do, and that that has been the subject of effective consultation, the union has had plenty of opportunity to raise issues and concerns, it has taken advantage of the opportunity, however, nothing that is put to date has persuaded the company that it should not move from seven to six. That is why the company made it clear that it did intend to implement the change from 4 January, and that is why we are in this situation we're currently in.

PN42

Now, the unions, the members have decided that they won't work, or at least that is the collective position at this stage, although I am instructed that a number of individuals have expressed interest at this point of working the six manning arrangements, they have decided to bring a section 127, which we say is misconceived. In relation to the section 99 that was filed by the company I should explain that the reason why that was withdrawn on 31 December is because, as we say, there has been consultation. The subject matter of this original notification was the lack of preparedness of the union in the first instance to consult about it. I think the initial response was no, we are not going to talk about it until after the New Year, from 10 January.

PN43

Now, as I have shown you through the chronology, the issues were worked through and consultation occurred, hence the withdrawal of that notification. Commissioner, that is all I wish to say by way of opening at this point. We are not opposed to having brief conciliation in relation to this matter. We do think the application is misconceived, however, obviously if there can be an agreed process and employees can return to work, then that is something that can be explored in an informal setting at the outset. If the Commission pleases.

PN44

THE COMMISSIONER: All right, thank you. Mr Wainwright, did you want to add anything to your opening submission?

PN45

MR WAINWRIGHT: I reserve my right to correct the inaccuracies of the submissions you have just heard at a later point, but I think it might be more useful to go into conference now.

PN46

THE COMMISSIONER: All right. We will adjourn these proceedings into conference.

<SHORT ADJOURNMENT [2.59PM]
<RESUMED [3.54PM]

PN47

THE COMMISSIONER: I should indicate just for the record that I have chaired a conference involving the parties with a view to seeing if we could broker an agreement which would see a resumption of production and a basis upon which the parties might be able to deal with this outstanding issue of a moving from a seven person to a six person system on the board line, but unfortunately I have been spectacularly unsuccessful, and accordingly the union will now be called upon to put any further submissions it might wish to put before the Commission in relation to its application made pursuant to section 127. Mr Wainwright?

PN48

MR WAINWRIGHT: Well, Commissioner, I foresee that any evidence that we may put forward, the company would seek an opportunity to get instructions on that evidence. So what I suggest that we do is that you issue directions that the CFMEU lodge with the Commission our submissions and our witness statements by close of business tomorrow, and that we list the matter for hearing on Thursday to give the respondents the opportunity to receive instructions on those witness statements, and also to give the applicant the opportunity of having Mr Flanagan give evidence.

PN49

THE COMMISSIONER: You are not in a position to proceed otherwise today?

PN50

MR WAINWRIGHT: We can proceed with evidence today, but I would suspect that Mr Flanagan's evidence would be central. He is currently on annual leave and we will need to get him to return from annual leave.

PN51

THE COMMISSIONER: All right. Mr Dalton, I had better hear from you.

PN52

MR DALTON: Well, section 127 applications are normally dealt with quickly.

PN53

THE COMMISSIONER: Yes. That is the concern I have got.

PN54

MR DALTON: Yes. We are ready to proceed on the basis of what the union is prepared to put. I think I am hearing from Mr Wainwright that he wants more time to prepare his application, and that is a matter for him to put to you if he is making an application for an adjournment. We are not.

PN55

THE COMMISSIONER: All right.

PN56

MR WAINWRIGHT: I am not putting to you an application for an adjournment, Commissioner. What I am putting to you is that the company has in their exhibit made some comments in relation to Mr Flanagan's participation in discussions, and Mr Flanagan being the employee of the CFMEU certainly central to our application that industrial action is currently occurring. Mr Flanagan is not here today. We say that we will need to lead evidence from him so we need to get him here.

PN57

THE COMMISSIONER: The Commission is required under the terms of the Act and in relation to applications under section 127 to deal with them fairly expeditiously, and I am keen to do that because I am conscious of the fact that production is currently not taking place on the board line.

PN58

MR WAINWRIGHT: That is a concern that has been put into the Act to protect the interests of the applicant. I am the applicant in these circumstances, so I am putting to you that that is the way that we believe this applicant should be pursued.

PN59

THE COMMISSIONER: No. Look, I intend to take submissions this afternoon in relation to the application. If I am of the view that it is necessary to get some evidence from Mr Flanagan, or that it is appropriate to adjourn the application to a later time I will do so, but I intend to take submissions now.

PN60

MR WAINWRIGHT: Well, then we will lead witness evidence, and I will seek an adjournment of 20 minutes to prepare that.

PN61

THE COMMISSIONER: All right. Mr Dalton, do you have a problem with that?

PN62

MR DALTON: No, Commissioner.

PN63

THE COMMISSIONER: All right, we will adjourn these proceedings until 20 past four.

<SHORT ADJOURNMENT [3.58PM]
<RESUMED [4.24PM]

PN64

THE COMMISSIONER: Yes, Mr Wainwright?

PN65

MR WAINWRIGHT: Commissioner, thank you for that adjournment. I have had the opportunity to contact Mr Flanagan. He is beginning his trip now, he expects to arrive in Melbourne at approximately 7 o'clock this evening. We have the opportunity, Commissioner, of hearing him at 7 o'clock or asking him to come to Melbourne tomorrow morning at 10 o'clock, but that is an issue that is in your hands.

PN66

THE COMMISSIONER: I think we have got another matter on at 10 o'clock, haven't we, in the morning?

PN67

MR WAINWRIGHT: I am not sure if it is listed for 10, but I understand West Point is listed. That may or may not occur, that matter.

PN68

THE COMMISSIONER: We live in hope.

PN69

MR WAINWRIGHT: We do. It is all that we have left.

PN70

THE COMMISSIONER: There is a cast of thousands in that one. At least there is only two of you in this.

PN71

MR WAINWRIGHT: We can add more if you like, Commissioner.

PN72

THE COMMISSIONER: No, don't do that to me.

PN73

MR WAINWRIGHT: But in relation to Mr Flanagan, as I say, he is travelling here now. It is up to you - - -

PN74

THE COMMISSIONER: There are other submissions I would assume that you can put at this stage?

PN75

MR WAINWRIGHT: Other witnesses that we wish to lead evidence from.

PN76

THE COMMISSIONER: Look, I think we should go as far as we can now, and if it would appear that it is important to get Mr Flanagan's evidence then perhaps an early start in the morning might be the other consideration.

PN77

MR WAINWRIGHT: He has flagged to me that if he is not to come all the way into the city he would like to know that by 5 o'clock, by which time we might be able to give him an indication.

PN78

THE COMMISSIONER: Mr Dalton, what is your situation in terms of your diary and availability.

PN79

MR DALTON: I am available tomorrow morning.

PN80

THE COMMISSIONER: If we were to have an early start in the morning, if it was only a matter of having Mr Flanagan's evidence, if we have got everything else that might be the way to go.

PN81

MR DALTON: Well, I understood that Mr Wainwright wanted Mr Flanagan here to respond to some matters that are referred to in the chronology that we propose to rely on. Perhaps the most efficient way might be to get instructions from Mr Flanagan as to whether the matters that are set out in the chronology are correct, because if they are he may not need to come. If the CFMEU want to raise additional matters through Mr Flanagan then obviously they can work that out this evening and, you know, call him tomorrow morning. It may be that he is not required because he can confirm that what is set out in his chronology, in terms of the meetings with him et cetera are correct, then he doesn't have anything further to add.

PN82

In terms of how we progress this evening I guess it depends on how long the Commission is prepared to sit at this hour and what time the Commission has got available tomorrow.

PN83

THE COMMISSIONER: Yes. Well, I am just conscious of the other matter tomorrow and I am locked into that, so I think we need to get as far as we can get anyway for the time being.

PN84

MR WAINWRIGHT: I can say about the matters that are in the chronology, Mr Flanagan wasn't sure if that, other than the dates and the times of the meeting, if the other things that are relied upon by the respondent would fall into the realms of fact fiction. So yes, there are numerous issues there that Mr Flanagan would wish to challenge, and obviously at the moment we say to you that none of that is evidence, it is merely submissions to you from the bar table. But if we say tomorrow morning, I am certain we can inform Mr Flanagan of that. He will be available to attend.

PN85

THE COMMISSIONER: Yes. Does that help you at all, Mr Dalton?

PN86

MR DALTON: If Mr Flanagan has significant matters to deal with then perhaps Mr Wainwright can deal with any other witnesses he has got now, Mr Flanagan tomorrow, and then I think we will be available to call any evidence that we think we need to in response to the union's case at that time. Commissioner, did you have a time that you - - -

PN87

THE COMMISSIONER: Yes. The difficulty I have got is that I have got this other matter on at 10 o'clock, I am not sure how long that is to go, but certainly I suspect most of the morning. I have got a matter at 2 o'clock which I don't anticipate would go very long at all, so we might be able to, for instance, start at 7.30 or something like that in the morning, and at least get Mr Flanagan's evidence and then come back in the afternoon to complete it if need be.

PN88

MR DALTON: I don't think the transcript has picked up on some of the reactions, Commissioner.

PN89

THE COMMISSIONER: We have got this new beaut system now, you won't believe what will appear in the transcript now. Can we go off the record for a moment, that might be easier.

<OFF THE RECORD

PN90

MR WAINWRIGHT: I seek to call Mark Raymond Brereton.

<MARK RAYMOND BRERETON, AFFIRMED [4.32PM]
<EXAMINATION-IN-CHIEF BY MR WAINWRIGHT

PN91

MR WAINWRIGHT: Mr Brereton, could you state your name and address for the transcript?---Mark Raymond Brereton (address supplied).

PN92

And what is your occupation?---My occupation is an operator at the Boral Plus Four plant in Port Melbourne.

PN93

And in addition to being an operator do you hold any other positions at the
plant?---I am the senior shop steward at the site, union representative, I am also trained as an occupational health and safety representative, but I am not an elected delegate at this stage.

PN94

And in that capacity have you participated in discussions with the company during December?---Yes, we began discussions. Our first discussion regarding the topic was around 4 December I think of the site consultative, or 9 December. I am not sure of the date.

PN95

Can I stop you there. What was the topic that the meetings were discussing?---At the site consultative committee meeting the company announced that they had a view to changing the manning levels in the plant from the current status of seven plus one operators to six plus two. At that meeting they explained the economic reasons why they thought they needed to go down this path, and I suggested to them that I needed time at that stage to think about what they just dropped on us, because we had had no previous notice of this, apart from the fact that it had been written in the EBA that manning levels would be an ongoing concern and that we needed to think about what this meant to the members on the floor and find out what the members on the floor felt about that.

PN96

And did you conduct those consultations with members on the floor?---After that point we met with the members, I think it was the following Monday morning.

PN97

And what concerns did you hear from the members on the floor?---The members on the floor were very concerned that we have a current situation where we have got roughly 17 per cent of our work force injured and working under WorkCover status. They suggested that for years we have been trying to get the company to update and issue us with standard operating procedures. They were also concerned that risk assessments had not been provided with certain functions. I think that was as about as much as they got out at that time.

PN98

Right. And did you communicate these concerns to the company?---We did. We met the company - I am again unsure of the exact dates. It would have been somewhere around 15 or 17 December. I am not sure exactly when. We met with them on several occasions, we outlined the concerns of the floor, we explained that as we had only had a short amount of time to look at this issue at this stage that we weren't sure if they were all of the concerns, if there were more that we would bring them up as we found out about them.

**** MARK RAYMOND BRERETON XN MR WAINWRIGHT
PN99

And what company representatives were you meeting with?---We were meeting with Mr Pittle and Mr Stray foremost.

PN100

And did you attend a meeting with Mr Pittle on Friday, the 17th?---That was possibly the meeting I was referring to, yes.

PN101

And were Mr Frazina and Mr Bradford and Mr Flanagan with you at that meeting?---There was a meeting between us, yes.

PN102

Okay. And at that meeting was a list of concerns outlined to Mr Pittle that those union representatives were seeking that he address before the change was implemented?---It was verbally at that stage. There was the standard operating procedures, risk assessments amongst training schedules, rotation plans and a couple of other things.

PN103

And was there job descriptions?---Job descriptions was one of them, yes.

PN104

Who communicated that list of concerns to Mr Pittle?---I communicated that with Mr Pittle along with Mr Flanagan.

PN105

And what was his response?---Mr Pittle's response was basically that they didn't have to supply those to the guys on the floor. We suggested that they should. I also put that in writing to him at a later date.

PN106

You have written to Mr Pittle on the subject on two occasions, is that
correct?---Yes, I have.

PN107

If I can show the witness one document, Commissioner. Is that one of the documents that you forwarded to Mr Pittle?---Yes, it is. That is the first document I forwarded to Mr Pittle.

PN108

If I can just indicate, Commissioner, that is the document found at attachment six of D1. I apologise, Commissioner, attachment seven. And if I can show the witness another document, Commissioner.

PN109

Is that a document that you forwarded to Mr Pittle?---No. That one is the one that Mr Pittle and Mr Stray forwarded to the operators as an explanation as to why they were going to - this is - my document was actually a response to this document.

**** MARK RAYMOND BRERETON XN MR WAINWRIGHT
PN110

With regard to the first document that I showed you, the one at attachment seven, do you see there the paragraph on the third page below the two dot points?

PN111

THE COMMISSIONER: I have only got two pages.

PN112

MR WAINWRIGHT: Two pages. Sorry, the paragraph on the second page below the two dot points. Do you see that paragraph?---Do I see that? Yes.

PN113

Sorry. I am entirely responsible for the confusion. Does that paragraph indicate that it is your opinion - - -

PN114

MR DALTON: I object to that question.

PN115

THE COMMISSIONER: That is leading the witness, Mr Wainwright. You can put it to him, what does that paragraph say to you.

PN116

MR WAINWRIGHT: I will take your advice on that point.

PN117

THE COMMISSIONER: That might be another way of doing it.

PN118

MR WAINWRIGHT: What does that paragraph say to you?---Well, as I wrote that paragraph I have acknowledged that Mr Pittle has said to us on numerous occasions that he does not believe that the proposed changes introduce any additional health and safety risks. We didn't accept that, and we needed to raise the opinion that there are the issues that needed to be attended to, and again re-affirming that we needed to see the standard operating procedures, risk assessments and training plans.

PN119

So you have stated in writing that you have concerns about - - -

PN120

MR DALTON: I object to the question.

PN121

MR WAINWRIGHT: Beyond the meeting on the 17th where you listed the concerns, what other discussions did you participate in?---We have had several discussions, and another document in writing where I suggested that because of the numbers of injured parties on the work force currently that we had very, very severe concerns regarding our safety were we to run with fewer parties. Other discussions revolved around how we could make this work. One suggestion that came out was an ex gratia payment, which was suggested on several occasions by management.

**** MARK RAYMOND BRERETON XN MR WAINWRIGHT
PN122

Who made that suggestion?---Mr Pittle made that suggestion on several occasions.

PN123

Did he make that suggestion to you?---He made it in a full meeting with myself, Mr Bradford and Mr Frazina. His exacts words, sorry, were not that there would be an ex gratia payment. His words were that Alan Evans is a man who likes to make deals.

PN124

Right. What did you ask him about that?---The conversation bantered backwards and forwards for quite some time. It was suggested that the company should give us a figure to take back to the floor so that we could ask the floor what they wanted to do.

PN125

Could you tell the Commissioner who Alan Evans is?---Alan Evans is Mr Pittle's two up support - two up report, sorry.

PN126

So he is Mr Pittle's boss?---He is Mr Pittle's boss, yes.

PN127

And during these meetings that followed the outlining of the concerns on the 17th was it ever indicated to the company that the dispute between the parties was resolved?---No, it was not. We actually affirmed that we were following the disputes resolution procedure as we were advised by our union member Collin Flanagan. He advised us to stick to that and make sure that we did everything in the correct manner, to which we tried to adhere to. We reminded Mr Pittle and Mr Stray on several occasions that we were in dispute and that while we were in dispute we wished to remain with the disputes resolution procedure. Their response to that was, we are not in dispute, which to me suggested that yes, we were, they're saying yes, well, I am saying no.

PN128

And what comments did you make to Mr Pittle about the meetings that were being conducted?---At the second last meeting I actually produced a document that defined the word consultation out of the Oxford Dictionary, and I suggested to Mr Pittle that he had been making these, or forcing us to attend these meetings to establish a pattern of consultation. He nodded his head and smiled at me and said yes, he was.

PN129

And what did you take that to mean?---I took it to mean that they weren't listening to us at all, they weren't ready to accept - that we felt we hadn't been consulted with. In fact, they stated openly that they had consulted enough and that they were ready to press forward with six plus two regardless of whether we had discussions or whether we had union representation.

**** MARK RAYMOND BRERETON XN MR WAINWRIGHT
PN130

THE COMMISSIONER: When do you say that occurred?---That happened on 23 December, sir.

PN131

MR WAINWRIGHT: And with regard to the concerns that you outlined on the 17th, what response if any have you received?---That is the written document?

PN132

That is the list of concerns which you have outlined at the meeting?---List of concerns, yes. I actually received a package on 29 December containing three folders, which I believe to have standard operating procedures, risk assessments, whatever documentation they sent to me. I initially thought it had come from somebody else, but I am told now that it came from Gavin Stray and Mr Pittle. I have not read that, have not had a chance to look at that. I was on annual leave, which I was forced to take at the time, and I have been stood down since.

PN133

To your knowledge has the company updated the standard operating procedures, the training plans and the other concerns that you raised?---To my knowledge they have not made any attempt whatsoever to update those documentation - documents.

PN134

And could you tell the Commission what occurred on 4 January?---On 4 January I returned to work. Sorry, no, I did not. I was not rostered to return to work until 5 January. On 4 January I was advised by my fellow employees that they had been stood down because they refused to work at the six plus two, which the company had already been advised that we believed we were in dispute and we are not prepared to move to six plus two at that stage. I returned to my first rostered shift at 6 pm on 5 January, to which I was the only able bodied man on site. I was asked the question of whether I was prepared to work at a level of six plus two even though the manning wasn't available. I was stood aside.

PN135

Were you prepared to work at the status quo level?---At the status quo level I was quite prepared to work, sir.

PN136

And are you aware of the ability of the other employees to work at the status quo level?---All employees have indicated to me that they are prepared to work at seven plus - - -

PN137

MR DALTON: I object to that evidence, your Honour. At best it would be hearsay. He is giving an answer that they have indicated. There is no reference to names, places, faces or anything. In my submission it is of no assistance to the Commission.

**** MARK RAYMOND BRERETON XN MR WAINWRIGHT
PN138

MR WAINWRIGHT: Well, Commissioner, this is an application that, as you have pointed out, you are required to hear speedily. You are not bound by the rules of evidence. You can give whatever weight you see fit to this witness's evidence.

PN139

THE COMMISSIONER: That is right. Yes, keep going.

PN140

MR WAINWRIGHT: I was asking you about your knowledge of other employees attitudes towards working at the seven/one level?---Last Friday morning we held a meeting off site with the employees. All employees were informed - all board plant employees, sorry, I will correct myself. It was not all CFMEU members, as we have decided not to take action against the other areas of the business, although we are not taking action in any area of the business. More than half of those operators attended. Considering some of those are on annual leave that wasn't to be unexpected. From those members that were present at that meeting I told them that we had four options to work with regarding this situation. I gave them those four options, the vote was unanimously to remain with the status quo at seven plus one whilst we were in dispute.

PN141

And do you remain able to hold discussions with the company about the implementation of different manning levels?---We have never hindered any attempt to have discussions with the company. We have, in fact, made ourselves available on days off, we have, in fact - the company has, in fact, changed our shifts around so that we can attend meetings. Prior to Christmas, as I said, they pushed for meetings day after day to try and establish a pattern of consultation. They even asked me if I would be available over my Christmas break. Unfortunately that was an area that I did say no.

PN142

No further questions, Commissioner.

PN143

THE COMMISSIONER: Thank you. Mr Dalton?

<CROSS-EXAMINATION BY MR DALTON [4.50PM]

PN144

MR DALTON: Mr Brereton, you said that you are senior shop steward on
site?---Yes, sir.

PN145

And you have been in that role for some time?---Approximately 12 months.

PN146

Okay. So you understand your role in terms of representing the members and having discussions with the company?---Yes, I do.

PN147

And if the company proposes some change or an employee has a particular issue, you are familiar with who you are to progress that with the company?---To some degree, yes.

PN148

Yes. And you understand that the disputes procedure provides the capacity for an employee to raise a particular grievance with the company?---All employees are entitled to raise a grievance, yes.

PN149

Yes. And that that particular grievance or dispute can be registered through you with the company?---Yes.

PN150

Yes. And there is a process for elevated discussions if the matter is not
resolved?---Yes.

PN151

And ultimately if you are not satisfied with what the company is doing you can bring the matter into the Commission, that is right isn't it?---Correct.

PN152

Yes. Now, in relation to consultation you accept don't you that consultation doesn't necessarily require the company to reach an agreement with you about its proposed change?---I don't agree with that statement, no.

PN153

Sorry. So you say consultation means that the company has to reach an agreement with you?---I believe so, yes.

PN154

Right. Are you able to point anywhere in the certified agreement, for example, that covers the work that says that consultation requires agreement?---No. But I could point to the Oxford Dictionary to get it.

PN155

Right. So you are relying on a dictionary?---I am relying on a definition of a word I have understood since I was very young, sir.

PN156

All right. Now, in relation to the initial communications that the company had regarding this proposal to reduce the manning from seven to six, that was first raised on 9 December in the consultative committee?---Yes, sir. It was the last item of business.

**** MARK RAYMOND BRERETON XXN MR DALTON
PN157

Yes. And you were present at that meeting?---I sure was.

PN158

All right. And Mr Pittle explained in general terms the reasons why the company wanted to go down that path?---He described the economic reasons and the fact that the company was finding it hard to compete in the marketplace and was losing money to a competitor.

PN159

Okay. Now, the next day there was another site consultative committee meeting, do you remember that, on Friday the 10th?---There was no site consultative committee meeting that day. It was a general meeting, it wasn't a site consultative meeting.

PN160

All right. But there were shop stewards, including yourself, meeting with Mr Pittle?---Yes.

PN161

Yes. And it was at that point that you said that the union wouldn't discuss the issue with Boral until the union returned from Christmas break on 10 January, do you remember saying that?---I don't remember saying that. I attended very many meetings as that document shows.

PN162

No. I am just asking you about 10 December, and I am saying to you that you said that the union wasn't prepared to discuss the issue until 10 January, is that right, is that what you said?

PN163

MR WAINWRIGHT: Commissioner, the witness has been asked that question, he has answered it. He says he doesn't remember making that comment.

PN164

MR DALTON: No, he didn't answer the question?---I don't recall making that statement.

PN165

All right. Now, you will know that employees were informed by way of a letter which attached an explanatory document, so that was the first formal communication to them about their company's proposed change?---That went out - - -

PN166

On 10 December?---On 10 December, no, it did not.

PN167

From the 10th through to the 12th as the shifts rolled through, is that right?---That document was sent to the union on the 10th. The employees did not receive it until the following Tuesday with their pay slips.

**** MARK RAYMOND BRERETON XXN MR DALTON
PN168

Right. So you're saying by the Tuesday the 14th?---Roughly, yes.

PN169

But employees were sent a letter with an attached document which explained in further detail the reasons for the change?---Mm.

PN170

Yes?---Yes.

PN171

Yes, all right. Now, on 13 December you sat in another meeting with the company to discuss the proposed changes, and you asked the company to detail the technological changes that enabled this move from seven to six, do you remember that?---Yes, I do.

PN172

Yes, all right. And the company subsequently provided you with that information, I think the next day?---Yes.

PN173

Yes, all right. Now, on the 13th and 14th there was a stoppage of work following overtime bans, do you remember that?---That was regarding, yes, our position, yes.

PN174

Right, okay. Now, on 14 December there was another meeting that you sat in, that was with the shop stewards and the health and safety representative and Mr Pittle and Mr Stray. Do you remember that meeting on 14 December?---I will have all these meetings documented in last year's diary, which I don't have with me today, sir. Yes, I attended a lot of meetings.

PN175

Okay. Well, perhaps I will refresh your memory. Do you remember stating that the shop stewards had given a green light to the union to negotiate a financial settlement in return for employees accepting this reduction in manning?---No.

PN176

Do you remember saying that?---The only time we have been given any indication of an ex gratia payment, it was brought up by Mr Pittle, we did discuss the matter, the possibility.

PN177

Right. So my question is, that on 14 December you told the company that you had given the union the green light to negotiate that type of settlement. Now, do you remember saying that or not?---I had given the union the green light?

PN178

That the shop stewards had given the green light to the union?---That statement does not even make sense to me now, let alone having made it at any other stage.

**** MARK RAYMOND BRERETON XXN MR DALTON
PN179

You don't remember saying anything about a possibility of a financial settlement?---We did discuss, management discussed the possibility of a financial settlement with us, yes.

PN180

You didn't mention it?---No, we did not.

PN181

So is that your evidence?---Yes.

PN182

You made no mention of a financial settlement?---We discussed it, yes, I did mention it, but I did not raise the issue.

PN183

THE COMMISSIONER: Just so as I am straight with this. Are you saying that you didn't raise it, but when it was raised you did participate in the
discussion?---Correct, sir.

PN184

Good. And I think that is all that Mr Dalton is putting to you?---Okay.

PN185

MR DALTON: All right. Now, on 16 December the company issued a question and answers document, and they gave that to employees and the shop stewards, including yourself, that is right isn't it?---That was the document that outlined their technological changes, yes.

PN186

Yes, all right. Well, that had various questions and answers which dealt with technological changes and other aspects of the proposed change?---Mm.

PN187

Yes?---I have that here.

PN188

Okay. So you had had an opportunity to read that once you received it, didn't you?---Yes, I did. I also responded to it.

PN189

Yes. Well, we will deal with that in a second?---Okay.

PN190

Now, the next day is 17 December. Now, you sat in a meeting with Mr Flanagan, who is the union organiser, along with other delegates and Mr Pittle, do you remember that?---Yes, I do.

PN191

Okay. And again the issue of moving from seven to six was discussed, wasn't
it?---Yes.

PN192

Yes, all right. Now, we can go ahead to 20 December, which is the Monday. You prepared a document, which I think you have got in front of you, which is that six plus two staffing re-allocation document?---Yes.

**** MARK RAYMOND BRERETON XXN MR DALTON
PN193

Now, that is a document that you prepared in light of the discussions that you had had with the company and the documentation that they provided, that is
right?---Only in response to the documentation they provided and nothing - they had little to do with the discussions we had had at that stage.

PN194

Sorry. Well, did the documentation deal with everything, or were you deliberately ignoring anything that was said verbally to you?---No. I was dealing with the issues that the members had on the floor.

PN195

Yes. I am saying that it was prepared in light of the discussions that you had had with the company and the documentation that they had provided. Are you also saying that you also took into account what your members were telling you?---It was a direct response to the staffing re-allocation question and answer sheet.

PN196

All right. So you had sent that in. Now, the company responded to that document the following day in a meeting with you and Mr Flanagan along with some other people there. Do you remember that meeting?---You are quoting Mr Flanagan being there quite a lot. I only remember him being at the site on two occasions.

PN197

All right. Do you remember him being there on Tuesday, 21 December at about 20 past 10 in the morning, a meeting between yourself, Mr Flanagan, Mr Frazina, Mr Pittle and Mr Stray?---It could have been, yes.

PN198

And Mr Pittle responded verbally to the issues that you had raised in your document, that is right isn't it?---Quite possibly. He rejected everything.

PN199

Okay. But he responded to the issues that you raised, not to your satisfaction, but he responded to them, correct?---Yes.

PN200

Yes, all right. Now, do you remember that there was another meeting with you, Mr Frazina, Mr Stray and Mr Pittle sometime after that earlier meeting, and the meeting went, I think it was about an hour later, and you advised the company of a stop work meeting, and that Gerry Ayres would visit the site. Do you remember that meeting?---That Gerry Ayres would visit the site?

PN201

That you said that there was a stop work meeting and Gerry Ayres would visit the site. You can't recall?---No, I can't recall that.

PN202

Okay. Do you remember that the company asked you that the employees and yourself had to identify any specific issues that you had in relation to moving from seven to six?---Yes, they did. They also told us to identify specific documents that we required.

**** MARK RAYMOND BRERETON XXN MR DALTON
PN203

All right. Now, I think that you had said that in one of the meetings, it may have been the meeting on the 21st when Mr Flanagan was there, or was it the 17th, where various documents were asked for I think, or you said that there were a list of issues that were raised?---We have put that list of documents to Mr Pittle several times.

PN204

Okay. And that was the standard operating procedures, risk assessments, job descriptions, rotation plans and training schedule, is that right?---That sounds about right, yes.

PN205

SOPs and risk assessments, those are matters that need to be addressed regardless of whether it is being worked on seven or six, that is right isn't it?---That is correct.

PN206

Yes. And the company has agreed that there will be a process for addressing those matters and updating documentation, correct?---The company has been agreeing to that for the last four years, yes, and done nothing.

PN207

All right. And so it is important isn't it that both the company and the employees involved in this process turn their minds to developing that documentation and getting it up to date, that would be your position?---But everybody should be involved in that, not only the management and employees, but engineers, accountants, whoever needs to be part of any specific standard operating procedure.

PN208

Yes. And that has to occur whether seven or six people are working in the board line?---Yes.

PN209

Yes. Now, job descriptions I think you asked for, that is another thing that needs to be updated, correct?---Correct.

PN210

Yes. And then the issue of rotation plans, was that an issue about rotation plants in the context of moving to six and two?---Yes. We wanted to know what their plan was.

PN211

Yes. Now, they responded to the issue that you raised on that didn't they?---No.

PN212

The company told you that they proposed that all people would rotate into the reclaim area and training didn't they?---Yes. And we responded back to that saying that they had not been able to show us rotation with seven plus one, how were they going to do it with six plus two, to show us in detail please.

**** MARK RAYMOND BRERETON XXN MR DALTON
PN213

Okay. So you wanted more detail on how the rotation process would work?
---Yes. We want it documented.

PN214

And the company told you that they were happy to look at the way in which the rotation could operate and hear from you as to suggestions as to how that be done?---Possibly, yes.

PN215

Yes, okay. And I think you also asked for information relating to the training schedule. Again, training schedule in the context of six and two, so if there is two people to be available for training you wanted to know what the schedule for training would be, is that right?---Correct.

PN216

And again the company said that it would be developing the training
schedule?---Mm.

PN217

Yes?---Yes.

PN218

I think we were at 21 December. If I could move ahead to 22 December. Do you remember that there was another meeting? It seems that there were meetings on virtually every day during this period, is that right?---Yes. I said earlier that the company forced us to come into these meetings on the grounds of showing a pattern.

PN219

So you didn't want to attend any meetings on this?---I didn't want to attend the meetings every day to be told the same thing over and over again and exchange a bit of paper every day.

PN220

All right. But you would accept that you had had an opportunity to raise issues that you had in relation to this proposed change?---We had already raised issues, and they had not been addressed sufficiently.

PN221

All right. So by this stage you didn't have any new issues to raise?---I think we raised - look, these things were raised over the period of December, everything was raised over the period of December. I am not sure exactly when everything was raised.

PN222

All right. Well, on 22 December I think you produced another document, which was a statement I think by you. I am not sure whether you have got that in front of you. If you don't I can hand you a copy.

**** MARK RAYMOND BRERETON XXN MR DALTON
PN223

THE COMMISSIONER: It is attachment 11, is it?

PN224

MR DALTON: Is that the second document that you provided to the company on 22 December?---No. It was written on the 22nd, I think it was actually supplied on the 23rd.

PN225

Okay. So you have got both the first document that you provided and the second document in front of you?---Yes.

PN226

Could I take you to the first document?---Yes.

PN227

As you said, this was a document that you prepared to respond to the questions and answer document that the company had distributed on 16 December?---Mm.

PN228

And you will see that you go through the list of technological changes and you say you don't think that there has been a sufficient reduction in the workload to justify a move from seven to six, that is in essence what you are getting at with those dot points, is that right?---Correct.

PN229

Yes, all right. And then after those dot points you have got this paragraph where you say:

PN230

As you have stated this change does not introduce any additional health and safety risks, but we do not accept that this re-allocation does anything to address the current issues that are yet to be attended to.

PN231

And then you refer to these SOPs, risk assessments or training plans?---Yes.

PN232

So my question to you is this. You wanted the SOPs, risk assessments, training plans, rotation plans, you wanted all those things to be tidied up before there was a move from seven to six, is that right, or before there would be consideration of move from seven to six?---The feeling of the floor was that that was the case because the company has a history of not producing those documents when requested to.

PN233

Okay. Now, the next document, that second document, you will see on the first page you set out the information that you want, and again it is SOPs and risk assessments, training plans and things of that nature, and then you go on to say there are genuine safety concerns. Now, remember in your first document you accepted that there weren't additional safety concerns raised.

**** MARK RAYMOND BRERETON XXN MR DALTON
PN234

MR WAINWRIGHT: Well, Commissioner, that is not correct. This witness was asked that question about the first document, and he said he was merely stating Mr Pittle's opinion as to the safety risks, and he had a separate and different opinion himself.

PN235

MR DALTON: Well, my learned friend is making a submission, he can do that, but I am entitled to cross-examination the witness.

PN236

MR WAINWRIGHT: Yes. But his questions can't contain assertions that are incorrect. The witness has stated earlier that his phrasing in the first document was to reflect Mr Pittle's opinion, and he has then expressed his own separate and different opinion.

PN237

THE COMMISSIONER: Yes, all right.

PN238

MR DALTON: Well, I think that is ultimately going to be a matter for submissions. That is not how I recalled the evidence.

PN239

So you have pointed to the safety concerns that you think arise from a proposed move from seven to six, and you set that out in that paragraph at the bottom of the first page. That is your safety concern, correct?---That bottom paragraph in that first page of that second document, that was well after that first document.

PN240

No. Listen to my question, which is really just a yes or no answer. That is your safety concern about a move from seven to six isn't it, it's encapsulated in that paragraph there?---Yes. That was part of our safety concerns.

PN241

Sorry, part of it?---Well, yes.

PN242

Sorry, my question was that those were your safety concerns. Are there other safety concerns that you haven't expressed in this second document?---Yes. For the last three years we have an unanswered WorkCover claim against the company where all jam ups have needed a standard operating procedure. The last time we had a jam up we asked Mr Stray for the procedure, he produced the one prior to the WorkCover visit and told us we didn't need SOPs any more. We have got a lot of safety concerns in the place, sir, to answer your question.

PN243

Yes. And they are existing safety concerns?---Yes, they are existing safety concerns.

**** MARK RAYMOND BRERETON XXN MR DALTON
PN244

Yes, that existed back in December?---Yes.

PN245

And some of which have been in place, or concerns that may have been in place for some time?---Yes.

PN246

Okay. They are not additional safety concerns as a result of moving from seven to six?---No.

PN247

No. Now, there is a shutdown between Christmas and 4 January?---Yes.

PN248

Yes. So no production or distribution workers were working over that time?---I believe distribution workers were working, but production workers were not.

PN249

Production workers were not, okay. And Tuesday the 4th comes around, and that is the day on which the company said that it would implement the move from seven to six, and it asked employees to work the board line with six people, correct?---I believe so. I was not present on the 4th.

PN250

You weren't present on the 4th, okay. Were you aware that there was a stop work meeting by employees at 6 am on the 4th?---Yes, I was. I was in attendance at that meeting.

PN251

You were in attendance at that meeting, but you weren't rostered to work that day?---That is correct.

PN252

Okay. Well, what was the result of the meeting? Was there any resolution passed at that meeting?---The meeting was called. Mr Pittle was advised prior to Christmas that that meeting would be occurring. The meeting was called to give the employees an update on the site visit by WorkCover on the day before Christmas, which was done, and the employees stipulated that they wished to retain the status quo at seven plus one until our dispute with the company was resolved.

PN253

Right, okay. And that is those who were not on leave?---Most of those were not on - well, in fact, all of the attendees at that - that wasn't the meeting last Friday, that was the meeting last Monday.

PN254

And how many employees attended that stop work meeting on 4 January?---I don't do a head count at all of our meetings.

**** MARK RAYMOND BRERETON XXN MR DALTON
PN255

Well, roughly how many people?---We have 70 employees in the whole place, probably a third. I am not sure. I really couldn't give you a number.

PN256

So a third of the total production areas?---The total for - - -

PN257

And distribution?---Total membership.

PN258

Right, okay. So you're not able to tell us who was there from board line specifically?---No.

PN259

No?---I can tell you that the shift that was rostered on, all of those persons who were not on annual leave were in attendance on that day.

PN260

Who were rostered to work that day?---Correct.

PN261

Yes, okay. Now, by this stage you had raised all the issues that you wanted to raise with the company, and in these meetings you were getting the same answers, that is right?---We had raised some of the issues. Can I just make a point here that we - - -

PN262

No. Just answer my question?---All right.

PN263

THE COMMISSIONER: You're being cross-examined, Mr Brereton?---All right.

PN264

Do you want me to ask the question again?---In one of my documents I actually stipulated that these were not all of our issues, we would be bringing them up as they came to the fore.

PN265

That was earlier in the piece, yes. And then you had produced two documents, and there had been several meetings. What I am saying to you is, by the end of December you had got to the point where you had raised the issues that you wanted to raise, and the company had responded not to your satisfaction, and you didn't think there was much point in having further meetings. That is a fair characterisation isn't it?---Well, in a nutshell, yes, I suppose.

PN266

Yes. No more questions, Commissioner.

PN267

THE COMMISSIONER: Thank you. Mr Wainwright?

PN268

MR WAINWRIGHT: Thank you, Commissioner.

<RE-EXAMINATION BY MR WAINWRIGHT [5.18PM]

PN269

MR WAINWRIGHT: Mr Brereton, you were asked about the disputes resolution procedure in the EBA and about disputes being referred to the Commission. Are you aware that the dispute in relation to the manning levels had been referred to the Commission?---Yes. We were advised by the company that they had already served a section 99 upon us and that we were to appear here on 12 January.

PN270

And were employees at the site planning to participate in that process in the Commission?---We believe so, yes.

PN271

And were you of the view that the status quo would remain until that hearing was concluded?---We had stipulated to the company that that was our desire, that the status quo remained in play until the disputes resolution procedure had been exhausted.

PN272

And what was that view based on?---That view was based on (a) our knowledge of the enterprise bargaining agreement, and the advice from Mr Flanagan.

PN273

If I can show the witness D1, Commissioner. Can I get you to turn to page two of that document, and do you see the listing there under Tuesday,
14 December?---Several of them, yes.

PN274

The third?---The third one at 1 pm, yes.

PN275

No, at 11.25?---Sorry, 11.25, yes.

PN276

Do you see the third paragraph there?---Yes.

PN277

Could you read that for me:

PN278

Brereton states the shop - - -

PN279

No, you don't need to read it out loud?---Sorry. Yes.

PN280

Did you say that?---No, I did not say that. On that day Mr Pittle had phoned Mr Flanagan prior to our meeting and suggested to Mr Flanagan that he and Mr Flanagan that he and Mr Flanagan meet in private because there might be a deal on the table. And when Collin met with him Collin advised us that Mr Pittle had told him, yes, I have met with you but there won't be any deal. Then Collin asked him why he was wasting his time.

**** MARK RAYMOND BRERETON RXN MR WAINWRIGHT
PN281

And that was consistent with what Mr Pittle had said to you about Mr Evans being a deal monger?---Yes.

PN282

You have confirmed that you asked the company for the standard operating procedures and risk assessments and so forth?---Yes.

PN283

And the work force had asked you to pursue those matters?---Yes, they had.

PN284

In the circumstances of the company trying to produce the manning from seven to six, why is it that you were pursuing those documents?---Why we were pursuing those documents is because of the current status in the workplace is that we do have some long term injuries, we do have quite a number of injured employees. We have been asking repeatedly for several years that we require these standard operating procedures to ensure that we are participating in the workplace in a correct manner to what is expected of us, to review them for safety purposes, also to, in relation to the move from seven to six we wanted to ensure that there was nothing in the procedures after review that might hinder us or put us in a more risky situation.

PN285

And you have not received those?---Not to my knowledge, no.

PN286

If you turn to your first document that you forwarded to Mr Pittle. There has been some discussion about the paragraph on the second page that begins, as you have stated?---Yes.

PN287

Could you tell the Commissioner what that paragraph means?---As I said earlier - - -

PN288

MR DALTON: I am not sure this arises from cross-examination.

PN289

THE COMMISSIONER: I am happy for the question to be asked because I was going to ask a question about it as well to get this clarified.

PN290

MR WAINWRIGHT: Well, I objected to a question in cross-examination on this paragraph, so it is obviously - - -

PN291

THE COMMISSIONER: Well, you would have got one out of me anyway, so keep going.

PN292

MR WAINWRIGHT: Thank you, Commissioner.

**** MARK RAYMOND BRERETON RXN MR WAINWRIGHT
PN293

So you are free now to explain what you meant in that paragraph?---Okay. As I have written there, Mr Pittle had stated previously that the move from seven to six didn't in his opinion produce any additional health and safety risks, and I am acknowledging his statement of the fact. I have also said after that that we do not accept that re-allocation does anything to address the current issues, and we have current issues as were before the Commission just before Christmas.

PN294

THE COMMISSIONER: Are you saying that that is different or the same as the occupational health and safety issues? Are they different issues you are talking about there? Because that is the part that isn't clear to me.

PN295

MR WAINWRIGHT: Different issues because of the change from seven to six?

PN296

THE COMMISSIONER: You see, the way that read, it is reasonable to infer that you agree that the change doesn't introduce any health and safety issues. However, there are other issues that you do have concerns about, but you're putting a different spin on that in your evidence now. You say that isn't the inference I should take?---Okay. The key word in there, sir, the way I - or to the manner in which I wrote it is the word additional. No, it does not introduce any additional health and safety risks. There are health and safety risks currently in the place that we need to look at and need to be addressed.

PN297

Yes. Well, Mr Dalton asked you a question about that and you clarified it for him.

PN298

MR WAINWRIGHT: You said that you attended the meeting on 4 January this year, is that correct?---Yes.

PN299

Did Mr Pittle approve that meeting being held?---The company never approves of us holding meetings with our members.

PN300

Was he aware of the meeting being held?---He was very much aware of the meeting.

PN301

Had he objected to the meeting being held?---I don't recall. I think he may have.

PN302

Thank you.

**** MARK RAYMOND BRERETON RXN MR WAINWRIGHT
PN303

THE COMMISSIONER: No, I have got no further questions, thank you. You're excused.

<THE WITNESS WITHDREW [5.26PM]

PN304

THE COMMISSIONER: Mr Wainwright?

PN305

MR WAINWRIGHT: Well, Commissioner, it is my intention to call Mr Flanagan and deal with his evidence next.

PN306

THE COMMISSIONER: All right. Well, if that is the case I guess we resume at 3.30 tomorrow. Is that convenient to everyone? We will adjourn on that basis and resume at 3.30 tomorrow.

<ADJOURNED ACCORDINGLY [5.27PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #W1 LETTER FROM MR PITTLE PN7
EXHIBIT #W2 LETTER FROM CFMEU PN7
EXHIBIT #W3 CERTIFIED AGREEMENT PN8
EXHIBIT #D1 CHRONOLOGY WITH ATTACHMENTS PN27
MARK RAYMOND BRERETON, AFFIRMED PN90
EXAMINATION-IN-CHIEF BY MR WAINWRIGHT PN90
CROSS-EXAMINATION BY MR DALTON PN143
RE-EXAMINATION BY MR WAINWRIGHT PN268
THE WITNESS WITHDREW PN303