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Australian Industrial Relations Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 12094-1
DEPUTY PRESIDENT HAMPTON
AG2005/2673
WOOLWORTHS (SA) PTY LTD
AND
SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION-SOUTH AUSTRALIAN BRANCH
s.170MD(6) - Variation of certified agreement to remove ambiguity
(AG2005/2673)
ADELAIDE
9.39AM, THURSDAY, 30 JUNE 2005
Continued from 4/4/2005
Reserved for Decision
PN163
MR MANUEL: I appear on behalf of MR VENNER for Woolworths.
PN164
MR D BLAIRS: I appear on behalf of the SDA. With me today is
MS A RISHWORTH.
PN165
THE DEPUTY PRESIDENT: Thank you. Yes, Mr Manuel.
PN166
MR MANUEL: Your Honour, we are in what is effectively the second phase of this matter. I don't propose to take you through as part of our opening the outline that we have filed, but just to confirm that you have it.
PN167
THE DEPUTY PRESIDENT: I have it and I have read it. I have also read
Mr Blair's.
PN168
MR MANUEL: And I apologise for any typographical errors, because I have found one or two after we filed it, so I couldn't do that.
PN169
THE DEPUTY PRESIDENT: I don't think it is a criminal offence.
PN170
MR MANUEL: Fortunately not. In terms of this matter, the ambiguity argument was one issue where your Honour had certain, if you like, set parameters and criteria established by case law and the like to consider what was and what was not an ambiguity. However, now your Honour has found an ambiguity, we would say that the discretion under section 170MD(6) is at large for your Honour.
PN171
You can obtain assistance from case law, but you should be extremely wary about being overly bound to it, because at the end of the day, the situation where a discretion is at large is that the Commission must have regard to all relevant matters and not have regard to any irrelevant matters. As a statement of administrative law, that is one of the least helpful things I can tell your Honour, but nevertheless that is the statement of the law and so your Honour is entitled to have regard to any permissible matters put before him and then to make up your own mind based upon your assessment of the evidence and the merits of the respective cases.
PN172
In some respects, any case law is a bit like putting forward case law in an unfair dismissal case, useful as a guide, but dangerous to follow slavishly and we would say the same applies here. Even though your Honour has found an ambiguity, that doesn't mean that the certified agreement no longer has a role to play in respect of these proceedings.
PN173
Firstly, it is important that any solution that your Honour puts forward to the matter, whatever that may be, does not actually harm if you like the fabric of the certified agreement. There is always I think for all parties a tendency to put forward a wisdom of Solomon type solution, but any solution nevertheless has to be tested against the fundamentals of the certified agreement to make sure that it is appropriate and does not overly damage the structure of the certified agreement.
PN174
Conversely, the structure of the certified agreement is still a matter which may assist your Honour in reaching a decision as to what is the appropriate exercise of the discretion. By way of example, the finding of your Honour was that there is an ambiguity, but could I suggest to your Honour that there are ambiguities and there are ambiguities?
PN175
It is always possible that your Honour holds a view that one side or the other had the slightly better argument, but nevertheless, because of the clash of those arguments, there was an ambiguity and so what we are saying is it is still appropriate to look at the whole of the certified agreement, as well as this particular clause, clause 40, in order to give yourself the structure by which you may then exercise your discretion.
PN176
The fundamental position of Woolworths, as you probably will have gathered, is this. There is no doubt that volunteers have been used to staff public holiday requirements, no doubt. What Woolworths says is that you can't give away a right by conduct unless you give it away clearly and overtly and so, in other words, using the example which is common in this Commission, a stand-down provision, that is the right to stand down an employee, would not be given away because on one occasion when there was industrial action you chose not to stand people down.
PN177
The right would still subsist and that is the case here. We say that the right to require people to work on public holidays has always existed. It doesn't matter whether people's perceptions of that are different. We say that on the wording of the certified agreement, that is the stronger argument. However, if you were then going to look at other issues, we say that the fundamental point is this, that the ability of Woolworths to continue to use volunteers exclusively and I should interpose there to say Woolworths is not saying what it seeks is a clause whereby it just directs people.
PN178
The volunteer process still exists in part, so long as there is a back-up mechanism whereby Woolworths, if it doesn't have enough people who volunteer or it doesn't have enough people who volunteer who have the correct skills, can then back-fill those requirements. The point Woolworths makes is this, that it would be without argument that the situation in retailing is dynamic and highly competitive.
PN179
Woolworths' distribution centres are in effect not only serving the public, they are serving their own internal customers and it is absolutely essential in the chain of supply that a distribution centre is able to supply the stores so that they can supply the customers, because if they don't supply the customers, there will be damage to Woolworths' business.
PN180
Woolworths sees because of changes that have not only occurred, but are continuing to evolve in things such as hours of work, opening hours of stores, the opening hours of their own stores as well as their competitors, that the volunteer system is now very much under strain and as a consequence, although it accepts that there is a genuine belief that volunteers will be sufficient from the union and its members, at the end of the day, it is the role of management to make sure that the work that can be done, that needs to be done and can be done and that is also consistent we say that the structure of the certified agreement which talks about removals of demarcations and the like and also the objects of the legislation here, in terms of flexibilities and efficiencies.
PN181
It is our intention to only call two witnesses. Mr Tzimokas will give evidence first and then Mr Holden. As a matter of housekeeping, your Honour, could I indicate that I won't personally be very long with any of the witnesses put forward or proposed by my learned friend. However, in accordance - you may recall a recent case where there was some debate about hearsay and relevance, rather than take issue and ask you to determine the matter at face value at the time the complaint is made, I wonder whether it might be a better process if, for both parties, when statements are put forward, there is an indication as to what paragraphs and what the nature of the objection is and then your Honour deals with that as part of the overall determination, in other words considers whether you can, in fact, have regard. I am mindful in this jurisdiction of section 110. However, even if the statements in their entirety were admissible, we would still raise the issue of weight to be given to the particular statement.
PN182
THE DEPUTY PRESIDENT: In terms of that approach, if that has the support of both counsel, then I would be happy to adopt that course. Mr Blairs.
PN183
MR BLAIRS: I have no objection to that approach, the most convenient way to conduct the proceedings.
PN184
MR MANUEL: Very well. I am grateful to my learned friend. If I could call
Mr Tzimokas, then, please.
THE DEPUTY PRESIDENT: Yes.
<KONSTANTINOS TZIMOKAS, SWORN [9.48AM]
<EXAMINATION-IN-CHIEF BY MR MANUEL
PN186
MR MANUEL: Your Honour, I have another apology to make. The copy of the statement that I have brought to hand to Mr Tzimokas I have written on.
PN187
THE DEPUTY PRESIDENT: I think we have a spare.
PN188
MR MANUEL: Thank you.
PN189
I will come to the statement in a moment, Mr Tzimokas. Where are you physically based in the job?---Gepps Cross distribution centre.
PN190
And what is the area of your responsibility, the physical area of your responsibility?---Looking after distribution and transport throughout South Australia and Northern Territory.
PN191
Now, you have before you a document headed witness statement for Konstantinos Tzimokas?---Yes.
PN192
Is this the statement that you prepared for this matter?---Yes, it is.
PN193
And is it true and correct to the best of your knowledge and belief?---Yes, it is.
PN194
And is it the evidence you will give in this matter?---Yes.
PN195
I tender the statement, your Honour.
PN196
THE DEPUTY PRESIDENT: Any objections?
MR BLAIRS: No objections.
EXHIBIT #A2 STATEMENT OF K TZIMOKAS
PN198
MR MANUEL: Thank you, your Honour. I have no further questions.
THE DEPUTY PRESIDENT: Thank you. Mr Blairs.
<CROSS-EXAMINATION BY MR BLAIRS [9.50AM]
PN200
MR BLAIRS: Good morning, Mr Tzimokas. Look, I wonder if you could start by just outlining the current custom and practice undertaken by Woolworths as far as you know specifically at Gepps Cross DC regarding when a public holiday is coming up?---We call for volunteers to volunteer their availability for a public holiday.
**** KONSTANTINOS TZIMOKAS XXN MR BLAIRS
PN201
And how do you call for the volunteers?---Just ask an expression of interest and names are placed on the noticeboard.
PN202
I think attached to your witness statement A2, there was a blank document that was marked KT01 on your witness statement?---Yes.
PN203
That is the type of thing that you would call for?---Yes.
PN204
I have obtained a copy which I would like to submit to you. Do you recognise that document at all, or have any idea what that document would be?---It is a form of document similar to the one attached.
PN205
This is the document that was used for Easter this year?---I thought it was 26/3.
PN206
Of this year?---03.
PN207
Your Honour, I would like to tender this document.
PN208
MR MANUEL: No objection. Your Honour, can I say that I agree that on the basis it is a business record, not on the basis that Mr Tzimokas has any obvious knowledge of the document itself.
MR BLAIRS: For the sake of clarity, I have obtained this document from Woolworths recently, after a request for discovery of it.
EXHIBIT #R1 EXPRESSION OF INTEREST DOCUMENT
PN210
MR BLAIRS: Could I hand another copy of that to Mr Tzimokas? I think the reference to 03 there is actually a reference to 26 March of this year, not the year 03, is it?---Yes.
PN211
Now, that document there is typical of an expression of interest document that would be put up on the noticeboard at Woolworths at the moment?---Yes, and, I mean, it basically records an expression of interest for the name and the badge number and basically on the other one, it is similar records. We just basically need an expression of interest.
PN212
Okay, and you need specific numbers in specific fields and that is why you have split them into different headings?---Yes.
**** KONSTANTINOS TZIMOKAS XXN MR BLAIRS
PN213
And once you have got this list you - well, obviously not yourself, somebody working underneath you goes through the list. Is that correct?---Yes, part of our planning is to firstly ascertain what the anticipated work load will be, allocate or put in a contingency there in case it is larger than what we expected and then hope that we have the day covered.
PN214
If you turn to I think it is about page 3 of the document. I have put them slightly out of order, but there should be some writing at the bottom of the page there, some computer typewriting?---To say:
PN215
This is an expression of interest only.
PN216
Is that the one?
PN217
That is correct. Just read that out?---Yes:
PN218
This is an expression of interest only. You will be notified if required in. Thank you.
PN219
Okay, so that it is stated in that document clearly that people who put their name forward are only volunteering, that it doesn't guarantee them the work and that Woolworths will then decide, I think the policy is up to two days before, you have mentioned in your statement, or at least two days before, exactly which employees are required from that list. That is correct?---Yes, and what we endeavour to do is give adequate notice, advising people that there may be a need for the work. As I said, our business is quite volatile in a way and it is not until the last few days that we actually in some cases can do more, need to analyse what the work load will be.
PN220
So you just determine, as is stated on the bottom there, the number of employees that are going to be required and then you inform those employees that they will be required on that particular day and they will come in to work?---Yes.
PN221
Okay. Now, you mention in your statement also at paragraph 15, or point 15, that the issue was first raised approximately one year ago, around Easter 2004, so it is probably a little over a year now, but I think it was about a year when you wrote the statement, that the issue was first raised. Can I ask what actually caused the issue to be raised at that time?---We needed basically, you know, we reviewed the EBA and the term required came out and it may have been raised earlier. I had commenced over in South Australia in July of 2003, looked at the EBA and required - I queried as to why do we go through the expression of interest process.
**** KONSTANTINOS TZIMOKAS XXN MR BLAIRS
PN222
And what was the response from the people who had been here before and who you asked that question to?---Through the people that we spoke to, they were basically in agreeance, said that that is how it was done.
PN223
So that you spoke to other people within Woolworths, or they had informed you the reason expressions of interest had been called for is because that is the way it had always been done within the company?---Yes, and the concern I had was really, you know, it was fairly open ended. If it was ambiguous or it wasn't clear, I needed to clarify it. EBAs that I have worked with, the term required actually meant required, whereby Woolworths or Safeway in Victoria - - -
PN224
By required, you mean compelled?---Required, required X amount of numbers to conduct their business and here I saw it as a risk to the business. What happens if insufficient volunteers are there and we had an instance in Easter of 2004 that we had some concerns about having the adequate numbers to complete our work load.
PN225
Okay, so you in your dealings with Woolworths and I think you have been with Woolworths since 1985, that is correct?---Yes.
PN226
And you have been dealing with Woolworths EBAs since about that time, or awards?---Yes, through management, yes.
PN227
And your personal understanding has always been that the company could compel employees to work on public holidays if they got insufficient volunteers?---Yes, the EBA that I last worked with at the Hume distribution centre basically had employees are required to work on public holidays and again it is a changing world, retail, and in Victoria a lot of the stores are open on public holidays and the distribution centre actually works a full day during that time, so whether we move towards that, I don't know, but again we just want clarity on that.
PN228
And when you worked at the Hume distribution centre, you had that ability and you used that ability, is that correct?---Yes, generally on public holidays, you do as little work as possible, (a) is cost and, (b) is labour availability and we had a process there that we ensured that we had the adequate staff members to conduct our work, but also had a process whereby we had a roster or some people that couldn't make it for whatever reason, we looked at that, but at the end of the day, what is important to us is we have the adequate numbers or had the adequate numbers to complete our work.
**** KONSTANTINOS TZIMOKAS XXN MR BLAIRS
PN229
You mentioned cost there as a factor and rightly so, running the distribution centre out there. You say that one of your primary objectives and concerns was you had a job that needs doing or something that needs doing, you would try and do it in the most cost effective way possible?---Yes. I mean, it would be irresponsible of me to say no.
PN230
Possibly could have put the Court on judicial notice that companies try and do things in the most cost effective way possible, but - - -
PN231
MR MANUEL: I am not sure if it is judicial notice, but I am not going to disagree.
PN232
MR BLAIRS: So you would say that if you could have set rosters up in two different ways and one way was more cost effective than another that you would do that?---Absolutely, and we have done a little bit of work like that, you know, advert stock that doesn't need to be picked on a public holiday, et cetera, we could adjust that, but again there is some work that you can't transfer and some responsibilities that need to be conducted on specific days and it is really about shoring up to ensure that we have got the adequate numbers.
PN233
You mention at paragraph 34, I think, you refer to:
PN234
The issue of Woolworths' ability to direct employees to work on a public holiday has not been addressed in the past because the warehouse has always had sufficient volunteers.
PN235
?---Yes.
PN236
So can we read into that or take from that that you have never had a situation where you have had an insufficient number of volunteers?---Yes, and as I said earlier, things change. Prior to that, prior to September 2003, our stores weren't open on a Sunday which didn't put as much impact on the Saturday or the following Monday. Probably two-thirds of the public holidays happen to be on a Monday, so trading on a Sunday then requires probably a larger order on Mondays. Who is to know what happens next year in terms of a full day Sunday, so in the past and probably one of the reasons why we hadn't been pursuing it in the past is because again we had that sufficient number. It is not to say that that will continue or it won't continue and again it is all about concluding the ambiguity and ensuring that we are not in a situation whereby we don't have the resources to meet our work load.
**** KONSTANTINOS TZIMOKAS XXN MR BLAIRS
PN237
So you haven't had a problem up to this point, but predominantly you are saying that in the future you just want - - -?---We got close Easter 2004. We had some concerns that we may or may not meet the work load. I think we were in the Commission here the Wednesday or Thursday prior to Easter and had some concerns there and the union delegates that were here at the time said that they would assist us and I think they went around and spoke to a few people, but again it is not where we want to be in terms of the day or two days, three days beforehand, trying to ascertain whether we have the adequate labour to meet our work load.
PN238
Would a way around that be to call for volunteers at an earlier stage so you would know a week or two weeks in advance?---Yes, and I think we do that. We do that a week or a fortnight, but it is not until as we approach closer to the Easter period or the holiday period that we start ascertaining what the work load will be and that is why there is that clause at the back there, saying that may or may not be required.
PN239
You also mention I think in the next paragraph that:
PN240
Woolworths' work load has increased by approximately four or five per cent over the past 18 months.
PN241
Is that referring to the amount of work load that the warehouse, the amount of cartons per day?---Yes, and when I wrote that, that was the case. Prior to that it was 10 or 15 per cent on the previous year. Again, we have been going through a transition period as a regional distribution centre and the Croydon and Dry Creek facilities have closed and moved into the regional distribution centre which is all part of the new EBA and certainly that has changed the processes. We are expanding in terms of bringing in new lines. The DSD or direct store deliveries are now going to come through the warehouse, four or five semi-trailer loads of milk which needs to be delivered on a day to day basis as well and also chicken are coming through the facility, whereas beforehand they didn't and that is some of the initiatives that we have started to introduce and certainly wasn't relevant back then, but certainly will be relevant moving forward and hence the ability to be able to man up our workforce.
PN242
But Woolworths as an expanding company and the distribution centre has always been growing in size to meet the new stores. I don't think a year has passed where Woolworths haven't opened new stores and that is always going to put extra pressure on the distribution centre, so what specifically is it that makes the four to five per cent growth in the past 18 months, given that the work force has grown along with it, you have just mentioned, to meet that extra demand? Are there any specific factors that mean that that particular 18 months' growth is different from the growth between 1979 and 1980 or any other 18 month period? I mean, the growth is always there and this is just consistent with it?---Yes, I think the growth is certainly skewed in a different - growth on a Saturday, for instance, had increased something like 30 to 40 per cent. Some of the days have quietened and Sunday trade obviously has impacted on that and also we have changed the processes in the facility, so the whole dynamics of operating the facility has changed.
**** KONSTANTINOS TZIMOKAS XXN MR BLAIRS
PN243
You mention also in paragraph 43 that you don't want future disputes and that is the primary reason that this has been raised is more looking towards the future than what has happened in the past, but is there any particular reason, given that the EBA expires I think around November of this year that this issue isn't being raised as part of the EBA negotiations and that you think it is being raised rather as an ambiguity that needs clarification?---When we first raised it, it was about a year and a half prior to the EBA obviously expiring and, really, it is a separate issue. It is really just something that needs to be clarified.
PN244
But if it is ambiguous, I mean, would you agree that a reasonably sensible approach would be for the parties to sit down and try and draft something that both parties understand clearly?---Yes, I would like the EBA to go through as an EBA. I mean, we have been here three, four occasions and we were close to a resolution last time, whereby the company put a proposal in regards to if we don't have sufficient volunteers, that we could call on the skills to assist us to get through the work load which we thought was a thought that wouldn't be an issue and be agreed upon and the fact that that wasn't agreed upon, discussing it in the EBA would really just extend that and would throw the EBA in another direction perhaps.
PN245
So effectively you want this clarified before the EBA is negotiated, so that the sides can go in and have a clear understanding of what the current is?---Yes.
PN246
I mean, it would still be negotiated. I would be very surprised if it wasn't raised as an issue in the EBA negotiations. Would you agree with that?---I would like it to be put to bed after this.
PN247
Now, you weren't involved in the EBA negotiations that took place last time, that is correct?---That is right.
PN248
So you have effectively just inherited this particular agreement?---Yes.
PN249
But you have dealt with numerous other agreements, well, Hume, for example. Is it fair to say that in your experience, going from different warehouses within Woolworths that different warehouse facilities have different customs and practices that they adopt? It is not uniform throughout Australia?---Yes.
PN250
And this is obviously just a peculiarity in your experience that it is to the South Australian or the Gepps Cross distribution centre?---Yes. As I said, when I read the agreement, I read it one way because I was used to reading similar agreements the same way in regards to that clause. Again, what is important to me is that come a public holiday, if we need X amount of people, we have got that X amount of people because if you can't deliver to stores, I mean, that is why we are there.
**** KONSTANTINOS TZIMOKAS XXN MR BLAIRS
PN251
But when you ask the people who had negotiated that previous EBA or dealt with the EBA previous, I think Wayne is a witness that will assist us on that front, but when you spoke to people like Wayne, was their response to you that, yes, we believe that we can compel people, we have just chosen not to previously?---Yes.
PN252
That was effectively what they had said to you?---Yes.
PN253
And did they mention or suggest why they hadn't previously?---Again, you know, without Sunday trade and if you have 40 volunteers and you need 20 people, it is never going to be an issue and who knows, it may not be an issue next year, but the year after the trading laws may change or whatever may change and it will be and it will be basically irresponsible for me not to pursue it.
PN254
Your Honour, I don't have any more questions.
PN255
THE DEPUTY PRESIDENT: Any re-examination?
PN256
MR MANUEL: Nothing in re-examination, your Honour. I would ask for the witness be released.
THE DEPUTY PRESIDENT: Yes, you can stand down. Thank you.
<THE WITNESS WITHDREW [10.13AM]
PN258
THE DEPUTY PRESIDENT: You are calling Mr Holden?
MR MANUEL: Yes, thank you.
<WAYNE ANTHONY HOLDEN, SWORN [10.13AM]
<EXAMINATION-IN-CHIEF BY MR MANUEL
PN260
MR MANUEL: Mr Holden, do you have a copy of your statement in front of you?---Yes, I do.
PN261
Now, that should be headed witness statement for Wayne Anthony Holden?
---Yes.
PN262
And can you satisfy yourself that that is the statement you have prepared for this proceedings?---Yes.
PN263
And is that the evidence you would give in this matter?---Yes.
PN264
And it is true and correct to the best of your knowledge and belief?---Yes.
PN265
And could I clarify one point? At point 3 you refer to having a qualification as a graduate certificate in corporate management from
Deakin. I was just wondering whether as a graduate certificate you have another qualification underneath that?
---No. I undertook that as a mature age student.
PN266
All the best people do. May I tender Mr Holden's statement, your Honour?
PN267
THE DEPUTY PRESIDENT: Any objection?
MR BLAIRS: No objection.
EXHIBIT #A3 STATEMENT OF W A HOLDEN
PN269
MR MANUEL: Thank you. Your Honour, I have no further questions.
THE DEPUTY PRESIDENT: Thank you. Mr Blairs.
<CROSS-EXAMINATION BY MR BLAIRS [10.15AM]
PN271
MR BLAIRS: Good morning, Mr Holden. Mr Holden, I wonder if you could perhaps to start with take us through your understanding of
the current custom and practice of what happens when a public holiday is coming up?---Current practice, my first-hand knowledge in
distribution operations, they probably ceased at
June 2003 when I since took on the role of the business analyst for the company. At the time I was operations manager of the DC
there, I commenced employment in February of 02, so during that time, a public holiday would come up and if the organisation deemed
it necessary to work based upon work volume, we would basically post an expression of interest on the noticeboard and have people
write their names down and their availability on that given day. The availability would usually be the amount of hours they were
prepared to work, whether it be four, six, whatever we were offering at the time and in addition to that, we may - I can recall on
the odd occasion we would have also approached people personally as well, not necessarily discriminately, just to filter numbers
out if there was a skill shortage as well.
**** WAYNE ANTHONY HOLDEN XXN MR BLAIRS
PN272
You wanted personal invitations then?---But not necessarily directed to individuals, more so related on their job function at the time. There would be probably about a week outside of the public holiday, we would then gather the list which would stretch across both the day shift and afternoon shift employees, gather those names and have a look at what sort of availability we had and then start allocating people to positions. Well, I suppose back then just saying yes or no to people. In probably all cases, we would get everybody in, unless we had a specific function on the day. If it was only going to be a dispatch day or something like that, we would only get people who were qualified in the dispatch area, but generally we would usually aim for a target of about 40,000 cartons to be picked back then, so we would aim for enough people to pick 40,000 and we would never get enough to be able to pick 40,000. On the average, it would be about 20,000 picks based upon the numbers we would get on the day.
PN273
But that would be sufficient to cover what you had to get?---The thing is with a public holiday, because you are losing a day's production in the facility and you have a fair percentage of stores that are trading on that public holiday, being the regional stores and the Darwin stores and so forth, the work load would - whatever you couldn't get picked on that public holiday would then subsequently roll over onto the following day which then had an adverse effect on the service level to the stores on the following day, so if we could get that extra 20,000 cartons picked on a public holiday, it is 20,000 less you have to pick on the Tuesday which then ensures that you are going to be delivering on time to your stores on the following day.
PN274
Okay, but if there was 40,000 for example that needed picking on a public holiday, but you only had the staffing to cover 20,000, is there any reason why you wouldn't have previously compelled the staff to come, to meet your requirements?---Previously compelled in what context?
PN275
Well, in terms of if you need to get 40,000 cartons out and you need, say, 200 employees to get that amount out, if you only got 100 volunteers, what you are suggesting is that you would employ the 100 volunteers and only get out 20,000 cartons as opposed to employ - - -?---We would identify that we had a shortage and that is what would then result on the personal approaching of people based upon the functions that were deficient after the initial expression on the noticeboard.
PN276
Okay, but have you ever had less people than you would have liked to work on public holidays?---Yes, fairly regularly.
**** WAYNE ANTHONY HOLDEN XXN MR BLAIRS
PN277
Fairly regularly?---Ultimately, as many people as you can get in, the more work you will get done. It is a question of not necessarily putting a target on a public holiday. What you are actually presenting to the operation is an optimal target. The optimal target has the impact on the following day which then has the impact on the service level at stores. The subsequent shortage of staff on a public holiday that the operation had been experiencing meant on the Tuesday, things were being pushed so far to the point where stores would have to be contacted, that their deliveries would be two, three hours late, which then rolls on into the sales products not on the shelf, their night fill staff need to be contacted not to come in, otherwise they are paying staff for doing nothing, basically.
PN278
So this has been a problem within the warehouse for how long?---In my time there which was between Feb 02 and June 03, running the warehouse there, yes.
PN279
Were you aware that it was happening before that?---I believe it was happening before that because the processes that were in place when I came on board seemed to be no different to what was the process prior to that. No changes were made.
PN280
So these problems were occurring before the most recent EBA was negotiated in 2002, the end of 2002?---Yes.
PN281
Is there any reason as the only Woolworths representative giving evidence that was in those negotiations, is there any reason why that wasn't raised by the company as a problem that it wanted to address in those negotiations?---At the end of 2002, when we negotiated the current agreement, the output volume, the requirement of the operation at that time was quite low compared to what it is today. For example, these are just arbitrary numbers, the 20 and 40,000, for example, but by losing a 20,000 pick output on a public holiday back then had an impact, but nowhere near as significant an impact as it has today. Back then it would just mean that you would work a bit of overtime and still manage to meet the delivery windows on the following day because I think in total the Tuesday volume after a public holiday back then was around the 100,000 carton mark, whereas now it is sort of creeping to the 150,000 mark, so not as significant an impact on the operation back when that agreement was negotiated.
PN282
Okay, but is it fair to say that - well, Woolworths as a company has been growing since its inception. I wouldn't know when that was, but 50 to 100 years ago, when it first opened as a corner store, it has been growing every year since then?---Yes. It is probably also fair to say that the time we negotiated the last agreement, the speculation about Sunday trade was still just speculation, had been speculation for a number of years, so to know that something was going to change within the period of this agreement was highly speculative, so that has since changed. We are now servicing stores who trade on Sunday.
**** WAYNE ANTHONY HOLDEN XXN MR BLAIRS
PN283
So had you known Sunday trading would have been or was about to be introduced, you probably would have addressed this as an issue?---Possibly.
PN284
I suppose it is conjecture?---Yes.
PN285
Okay, but from what you are saying, the issue of the public holiday clause was not discussed at all in those negotiations?---Not to my recollection.
PN286
Now, did anybody or especially yourself, did you ever actually read that clause and turn your mind to what that actually meant and
make an actual physical evaluation that this means that we can require people, but we choose not to?
---During the negotiation.
PN287
During or in the lead-up to?---I have never paid it much thought, to be honest.
PN288
You never paid it much attention in that time?---No, because the processes that we had in place were the processes that we had established.
PN289
At that point in time?---At that point in time and we had, yes, basically didn't really challenge it at the time.
PN290
So when the negotiation came across, I mean, you were I suppose happy at that stage at the way the public holidays were operating, the company was satisfied that that was adequate?---I don't think it would be right to say we were happy. I think it was something that just was never raised as an issue at the time.
PN291
And you assume that just by not touching the public holidays clause, then that was something that you didn't want to change, so it wasn't addressed or discussed?---It just wasn't highlighted as an issue at the time.
PN292
Now, if I can turn your attention to your statement, specifically on page 4 at paragraph - point 49 there, that you say that:
PN293
In 2005, production has increased by approximately 30 per cent than was the case in 2002.
PN294
That is the increase that you were discussing?---Yes, that is an arbitrary number, but it would be about that, yes.
**** WAYNE ANTHONY HOLDEN XXN MR BLAIRS
PN295
It would be around about 30 per cent mark?---Mm.
PN296
Okay, and has that growth all skewed towards one end or another end?---The growth, the significant growth happened around the beginning of 2003 calendar year, probably started to experience that around the time I actually stepped out of the operations manager role and, yes, the sales in South Australia started to escalate, thus impacting output volume in the DC operation.
PN297
Is there any particular reason for that, or is that just the growth of the stores?
---The reasons I am sure are understood by the people at the high levels, but we just saw the growth happen.
PN298
Has the size of the warehouse in terms of employee numbers increased to keep track of that increasing in output from the warehouse?---Head count has increased, yes.
PN299
So assuming employees are working at 100 per cent and I know that may be a contentious issue, but assuming employees are working at 100 per cent, that if growth has increased by 30 per cent, then you had to increase employee numbers by roughly the same amount?---That is a theoretical situation, I suppose, but with that you still have the mix of skilled, adequately skilled people that need to be there to facilitate the operational requirements as well.
PN300
Would it be fair to say that the company would be operating or setting rosters at the lowest cost to the company to get the job done?---Yes.
PN301
In terms of work on a public holiday, are you aware of the appropriate penalty rate for an employee who works on a public holiday?---Yes.
PN302
Can you tell us what that is?---I believe it is double time and a half.
PN303
And is that paid in addition to the employee's ordinary hourly rate or ordinary day's wage, so if I was an employee, employed to work on a Monday, would I get my Monday's rate plus if I then came into work, I would get two and a half times on top of that rate, or would I get - - -?---I am not really sure about how that is structured at the moment.
PN304
I would put it to you that if I was to come into work on that particular day, that I would be paid two and a half times my rate, in lieu of my one day's pay, so if I would normally get $100 for a Monday, it is a public holiday. If I don't or if I am not required by the company to work on that day, I would receive my $100. If I am required by the company, I would be paid $250?---Yes.
**** WAYNE ANTHONY HOLDEN XXN MR BLAIRS
PN305
So the cost to the company, the extra cost to the company to get me in to work that day would be an extra $150?---Yes.
PN306
Are you aware of the penalty rates for overtime?---Yes.
PN307
And would that apply on a Saturday as well?---If a person was not normally rostered on a Saturday, yes.
PN308
So if I was a Monday to Friday employee, once again we will go back to the $100 a day, so if I was to come in and work overtime for my time on a Saturday, I would be paid at time and a half for the first two hours, is that right?---Yes.
PN309
And then double time after that?---Yes.
PN310
So effectively I would be paid at double time for a good portion of my shift and the extra cost to the company would be more than
$150 for the same?
---Depending on the amount of hours. As it was in 2003, most people brought in on a Saturday would be required for four hours,
so they would work two hours at time and a half, two hours at double time.
PN311
Okay, so if work was needed to be done regarding a public holiday, it would be cheaper for the company effectively for an employee, for an employee normally rostered to work on a Monday on that Monday, on the day they would otherwise have off, it would cost the company say $150 as opposed to bringing that employee in for the same length shift on a Saturday, where it would cost the company say $200. Would you agree that that was the case?---It would be cheaper on the Saturday, on the public holiday, yes.
PN312
Cheaper on the public holiday?---If they were rostered on on the Monday.
PN313
Okay, so given that you have just stated previously that the company would as a rule take the cheapest option in terms of operations, is there a reason why the company, if they could have previously or believe they could have previously compelled employees to work on a Monday, why they would have not taken that as the cheapest option, why they would have previously had employees work or call employees in to work extra hours on a Saturday rather than on the public holiday Monday?---It is about the operational requirement. The cost factor is one aspect, the operational requirement is the other, the capacity within the DC, flooding a Saturday as opposed to flooding a public holiday, it is about the capacity of the operation rather than - the argument for cost is a valid one, but primarily it is the service to the stores. The cost to the stores on a reduction in service level would have an impact there where the DC physically can't do the work is far more cost impact to the business than what would equate to a portion of a penalty loading on a public holiday.
**** WAYNE ANTHONY HOLDEN XXN MR BLAIRS
PN314
Now, you have also alluded to the fact, specifically in paragraph 55 and I think we have also touched on it, that Woolworths is in a position where it is struggling to get sufficient volunteers. I assume that is, given what we have discussed, in relation to their struggling to even get the minimum numbers that are coming in needs to operate on a public holiday. That is all that is referring to?---Yes, it comes down to the operational capacity, the 20,000 versus 40,000 issue and the mix of skill base, yes.
PN315
Okay, so you are struggling to even get the numbers to get your 20,000 cartons out?---As it stands now, I am not sure, but back in 03 there would be the odd public holiday, we wouldn't even make the 20,000, some public holidays between 16 and 18,000.
PN316
And so the application here today is effectively to deal with the future and issues that may arise in the future, but it is also to rectify problems that have been occurring in the past. Is that fair to say?---Yes, the problems in the past indicate a pattern of basically ensuring that we can offer that service to stores on any given day of the week, yes.
PN317
Your Honour, I have no further questions.
PN318
MR MANUEL: Nothing in re-examination, your Honour. I would ask that
Mr Holden be released, please.
THE DEPUTY PRESIDENT: Yes, Mr Holden, you can stand down. You are released. Thank you.
<THE WITNESS WITHDREW [10.35AM]
PN320
MR MANUEL: Your Honour, that is our case.
PN321
THE DEPUTY PRESIDENT: Thank you. Mr Blairs, are you ready to proceed or do you want five minutes?
PN322
MR BLAIRS: I am happy to proceed.
PN323
THE DEPUTY PRESIDENT: Very well.
PN324
MR BLAIRS: Like my learned friend, I won't go into regurgitating my entire outline of submissions, at least at this stage. I would, however, like to point out a few points that I think are of relevance and maybe that the Commission should be considering both after hearing the evidence that it has just heard and also in hearing the evidence that is about to be put forward on behalf of the SDA and I would also like to raise a point of - probably may even be considered ambiguity in terms of the position put forward by my friend and by Woolworths in its application. In the proposed variation that has been put forward by Woolworths, effectively at clause 40.9, the new application states that:
PN325
Permanent employees who are required to work on a public holiday shall be paid the rate of double time -
PN326
Sorry:
PN327
Permanent employees who are rostered to work on a public holiday are required to work the public holidays.
PN328
Now, in terms of that, I would assume that the term required there is definitely referring to the meaning compelled as has been put forward, but my friend in his opening submissions suggested that Woolworths' position was that their call for volunteers was to be used in conjunction with this right to compel employees to work and I would suggest that that is not evident from the clause that has been put forward by the company.
PN329
If it is indeed their intention that the rights of the company would be to compel employees to work once they have received insufficient numbers of volunteers, then that is certainly not evidence from the clause that has been suggested. Now, Woolworths' position is effectively that they can compel employees to work even as the award stands and that the intention of the award was that that be the case.
PN330
The position of the SDA asserts that the intention of the clause read as a whole was that employees were entitled to the public holiday as a day off or as a holiday. I think a holiday is defined in a number of cases as a day free of work and I think it is also in a number of the dictionaries which I won't go into in any great detail unless there is some contention as to what the term holiday actually refers to, but we would assert that that obligation that the company has to allow the employees a holiday on that particular day is the clear intention of the clause and has been the intention of the clause or similar clauses since they first applied to the warehouse and since the store workers and packers' award and its predecessors turned its attention to public holidays and the rights of employees on those particular days.
PN331
Now, the actual term required appears a considerable distance back in those awards and agreements and we can only assume that it has been imported from those agreements as wording is imported from agreement to agreement through time and that that is why it appears in this particular agreement and that there is no evidence that has been put forward or I think that anyone could put forward that we have been able to ascertain, that the drafters of particular awards and agreements have actually turned their minds to the question of what does the term required mean and does it mean compel and are we using it in this sense to mean compel and the SDAs position in regards to this is that the term required has life and has meaning from what is understood by the parties to be the meaning of the clause in the term where it is operating, not its actual dictionary meaning, which I think this Commission has already found to be ambiguous.
PN332
Now, in relation to that, the Commission has found that an ambiguity does exist in this matter previously and it would be the assertion of the SDA that that issue is now I suppose to an extent taken care of and that the Commission must now turn its mind to how to resolve that ambiguity effectively and that the Commission shouldn't be looking back and saying, well, one interpretation is more right than another on a strict dictionary definition or interpretation, but that the Commission's correct role now, once an ambiguity has been found, is to say, well, what was intended by the parties and we would assert that that is the role of the Commission in the proceedings here today.
PN333
Now, my learned friend has suggested that the Commission should have little regard to previous decisions and we would probably dispute
that assertion. There are a number of cases by the Full Bench of this Commission that has turned our mind to this exact issue in
great detail and I will refer to those in my closing submissions in some more detail, but they have set down the proper way for the
Commission to resolve issues of ambiguity and these decisions by the Commission actually also refer to a number of decisions which
date back to
pre-Commission days, I suppose.
PN334
And refer to the resolution of ambiguities in common law contracts and I think a leading case on that particular matter is the case
of Codelfa which actually then goes back and states, right back to Lord Wilberforce, I think, around 1800 and something, so it has
been an established line of cases which track back well over 100 years and I think that it would be appropriate to have full consideration
to those particular cases and not to just write them off as decisions by other
decision-makers, whether they be judges of Commissioners or laws, I think.
PN335
So we would suggest that these cases are extremely relevant and that these cases all point towards two steps or two considerations that the Court has to have here today and the Court has to firstly consider the mutual intentions of the parties. I think the terms objectively identifiable mutual intentions of the parties is mentioned in a number of cases and the Commission's role here today I think should be to effectively attempt to ascertain at the time that these words were entered into this particular agreement, what did the parties intend them to mean and if it was clear from either past practices or from statements made or for any other reason that one or another or both I think more importantly of the parties intended a particular definition or interpretation to be applied to the clause, then the role of the Commission here today is to attempt to vary the agreement to give proper effect to the intentions of the parties at the time that the agreement was made.
PN336
Now, if the Commission determines that there was no mutual understanding of the parties at the time, that one party believed that X was the case and another party believed Y was the case then we would assert that it would be inappropriate for the Commission to exercise its discretion and to vary the agreement to reflect the beliefs held by only one of the parties at the time that the agreement was made and that is the second component or second facet of the Commission's role here today is that it does have a discretion.
PN337
And even if the Commission can determine that there were mutual intentions of the parties at the time, it may still choose to exercise its discretion not to vary the award or it may choose to exercise its discretion to vary the award to reflect what has been ascertained through the evidence here today and not necessarily limit itself to just the application that is in front of them.
PN338
So that is the second I suppose role of the Commission is if the Commission determines that what has been put forward by Woolworths here today was not the objectively ascertained mutual intentions of the party at the time, but there were other objectively attained mutual intentions of the parties, then the Commission should be turning its mind to what were those intentions at that time and be considering varying the agreement to reflect those particular intentions. Now, in determining what the Commission should consider, I think my learned friend has mentioned that perhaps it is best to hear or allow all of the evidence at this stage and maybe have the argument or discussions or put our cases at the end as to what should correctly be considered by the Commission and what shouldn't be.
PN339
So I won't go into any particular detail in regards to that, but I will just highlight in my conclusion that the Commission does have to be very careful in exercising this discretion and in this role, that it is not changing the meaning of the clause or the agreement so that it is distorted in a way that it is no longer what was agreed to between the parties at the time and I will come back to that in more detail in my closing submissions. But that is a cornerstone here of the Commission's discretion is that at the back of the Commission's mind, they should always be considering is this an attempt to vary the agreement to insert something into the agreement that wasn't inherent at the time the agreement was made and in determining what should be varied, if anything, in the agreement, the Commission should be considering from both perspectives is this varying what was agreed to between the parties at the time. If the answer to that question is yes, there is variance from what was agreed to at the time, then the Commission we would assert should not be exercising its discretion under section 170MD(6) and I think we would call our first witness.
PN340
THE DEPUTY PRESIDENT: Very well.
PN341
MR BLAIRS: Another housekeeping matter in terms of statements. It might be easiest to tender the statement of Mr Donald Edward
Farrell as the first statement. Now, it is understood by the SDA that there is no intention to cross-examine
Mr Farrell. We have no intention to call him to ask any further questions, so unless there's any objections from my learned friend,
we would tender that as a first thing.
PN342
THE DEPUTY PRESIDENT: Yes, Mr Manuel.
PN343
MR MANUEL: As I raised earlier, your Honour, perhaps the best approach is for me just to briefly note the objections within the statement and then the Commission accept it on the basis that those objections have been made and deal with them at a later point.
PN344
THE DEPUTY PRESIDENT: Very well.
PN345
MR MANUEL: We object to paragraphs 3 and 4 on the basis of relevance, paragraph 5 on the grounds of opinion, paragraph 6 on the grounds of hearsay, paragraph 7 on the grounds of opinion, paragraph 10 on the grounds of opinion, paragraphs 11 to 14 inclusive on the grounds of relevance and paragraphs 18 and 19 on the grounds of opinion.
PN346
THE DEPUTY PRESIDENT: There is not much left.
PN347
MR MANUEL: Not a lot left, no. May it please the Commission.
THE DEPUTY PRESIDENT: Then with the consent of both parties, the approach I propose to adopt is to note the objections, to admit the evidence and deal with admissibility and weight in due course, having taken submissions. In that context, I will admit Mr Farrell's witness statement.
EXHIBIT #R2 STATEMENT OF DE FARRELL
MR BLAIRS: If it please the Commission, I would like to call our first witness, Mr Roger Nicholls.
<ROGER ALLAN NICHOLLS, SWORN [10.52AM]
<EXAMINATION-IN-CHIEF BY MR BLAIRS
PN350
MR BLAIRS: Your Honour, I would seek to tender the witness statement of
Mr Roger Nicholls.
PN351
MR MANUEL: Can I do the same exercise, if you wouldn't mind?
PN352
THE DEPUTY PRESIDENT: Indeed. Look, I take it - - -
PN353
MR MANUEL: I am not suggesting that my learned friend has to go through the more structured approach for that.
PN354
THE DEPUTY PRESIDENT: Very well.
PN355
MR MANUEL: Paragraphs 5 and 6 on the grounds they are opinion, paragraph 10 on the grounds of hearsay and opinion, paragraph 11 to 16 inclusive on the grounds of relevance and also hearsay insofar as it includes a petition, paragraph 17 to 18 as opinion, paragraph 20 and 21 as opinion, paragraph 22 and 23 as hearsay, paragraph 24 and 25 as opinion.
THE DEPUTY PRESIDENT: Very well. On the same basis I will admit the witness statement of Mr Nicholls.
EXHIBIT #R3 STATEMENT OF R A NICHOLLS
PN357
MR BLAIRS: I have no questions.
THE DEPUTY PRESIDENT: Yes, Mr Manuel.
<CROSS-EXAMINATION BY MR MANUEL [10.54AM]
PN359
MR MANUEL: Thank you, your Honour.
PN360
Mr Nicholls, when was the last time you worked on a public holiday?---Easter Saturday.
PN361
The one just gone?---Yes, this year.
PN362
Now, you are a forklift driver, is that correct?---Yes.
PN363
And that requires a particular licence, doesn't it, to operate the forklift?---That is right.
**** ROGER ALLAN NICHOLLS XXN MR MANUEL
PN364
In terms of volunteers, not everyone could volunteer to do your job, for instance, could they?---No, not everyone could volunteer to do my job.
PN365
And there would also be I think they are called high lift operators, they have to have a special licence?---High rise operators. They no longer exist there now, but that previously would have been the case, yes.
PN366
Who does the work that the high rise operator would have done?---The high rise area has been taken out of the warehouse now. It has gone altogether.
PN367
Reach truck operators?---Reach truck operators, that is right, yes.
PN368
And that requires a special skill?---Yes.
PN369
Do you require a licence for that?---You do.
PN370
And grade 4 employees are at a particular level and they are trained on computers?---They are trained on the computers, yes.
PN371
And so could I come back to this volunteer system as I understand it? The company makes a decision as to whether it wants to work
on a public holiday?
---That is correct.
PN372
It then puts out an expression of interest?---Yes.
PN373
And people put their names down as to whether or not they wish to work on a - well, they put their name down if they wish to work on the public holiday?---That is correct.
PN374
And to work on the public holiday requires a particular skills mix?---Yes, to run the warehouse, yes, that is correct.
PN375
And for there to be an effective working, there has to be enough volunteers for each particular skill?---That would be fair to say, yes.
PN376
And from your perspective, the company sets what they want to do on the public holiday, don't they?---Yes, the amount of work.
PN377
Yes, and also perhaps the type of picking they want to do?---Yes, that is right.
**** ROGER ALLAN NICHOLLS XXN MR MANUEL
PN378
And they also obviously set the number of employees that they need as well?
---Yes.
PN379
Now, what is the situation and I am not saying this is you, but you see the expression of interest, you decide, yes, I wouldn't mind working this public holiday, you go and write your name. Are you committed at that stage?---Am I committed to?
PN380
Working on the public holiday, or is it just an expression of interest?---Well, it is an expression of interest yet to be confirmed. It is confirmed at a later time by the company.
PN381
By the store manager or whoever comes out and says to you, yes, we would like you to work on the public holiday and you agree to that?---You confirm at that stage. It is usually closer to the actual date.
PN382
And how far before the actual date, just roughly?---That could be the last ordinary working day before the public holiday. It can actually be that late, but you have got your name down, so the company may decide at that later stage because they won't know how much work they need to get out before that.
PN383
The ability of the company to confirm with you is affected by those late changes in what they have to actually get out on that day?---To a certain extent that could be true. I mean, they can have an estimate.
PN384
Let's say someone comes out to you and says on the Wednesday, yes, we need you on the public holiday and you agree to that. Are you committed to then working on the public holiday?---I would. I don't think there is any - as far as commitment goes, I don't know. In my position, if somebody didn't turn up, I have never known anyone to be disciplined for not doing that without providing evidence. That hasn't happened before, as it would on a normal day.
PN385
When you say commitment from your point, you are talking about in effect a moral commitment?---Yes, that is right.
PN386
You have given your word?---Yes, but you are saying is there consequences to me not turning up? Is that what you are saying?
PN387
Yes, effectively?---Well, no, I don't think there is at the moment, because it is not part of your ordinary shift.
**** ROGER ALLAN NICHOLLS XXN MR MANUEL
PN388
And the situation as I understand it is that there are persons who volunteer, give their commitment and then don't turn up on the day, aren't there?---Well, I would say that happens any day of the week because of whatever reasons that they have committed to come in, but they don't on that day. Yes, that is probably fair to say on any day, yes.
PN389
I want to put a scenario to you. There's three forklift drivers required on a public holiday to enable the rest of the people to work efficiently. Two forklift drivers commit, but you can't get a third. What is the resolution to that from your perspective?---From my perspective, if I was running the place, I think, and which can happen as well, what you might find in a situation like that is if they need three forklift drivers for six hours or something like that, you could actually get four in, finish the work quicker and on a public holiday, as with overtime, you can actually send - if the work is finished early, you can send people home. After four hours, you can send them home and that is what does happen on some occasions on public holidays or any overtime day. It is not like a normal day. If the work gets finished quick, then the company then has the right to send people home early and sometimes that will happen.
PN390
That requires you finding, however, another two forklift drivers to work a shorter day, doesn't it?---It can do, but I guess the company has covered itself and probably on any normal day, it is a similar case, because people are multi-skilled, so they may only require three forklift drivers, but two or three of their order pullers could also be licensed as a reach truck driver which can then step into the role if need be.
PN391
Let's just assume and I am not saying this is the circumstance, I am saying this is the scenario I am putting to you, let's assume
that you need three, but you can only get two, so come the public holiday, there's only two volunteer forklift drivers,
no-one else is either prepared or able to drive the forklift. How is that fixed by the volunteer system?---How is that fixed by
the volunteer system? Well, I guess in that case if not enough people have volunteered and there's not enough people there, then
there wouldn't be enough people to do the job. Logically, that would be the case.
PN392
Thank you very much. I have no further questions.
THE DEPUTY PRESIDENT: Any re-examination?
<RE-EXAMINATION BY MR BLAIRS [11.01AM]
PN394
MR BLAIRS: Just expanding on from that last example, Roger, that there is required, say, three forklift drivers on a day and only two volunteer, that there would be a shortage of one forklift driver and you said that the volunteer system wouldn't be able to I suppose accommodate or deal with that situation. What would be the situation if on a normal working day, you had three forklift drivers required and one of them called in sick, they were ill or too ill to come to work, what would be the situation?---Well, it would be exactly the same. If you haven't got them there, obviously fairly logically you can't use them. As I said previously, at our place the company has done a fair bit of multi-skilling there now and so people - if somebody is away on a certain day in another area, you can actually transfer people around generally, but in the instance that was described before, obviously if there is absolutely no-one available, then obviously you wouldn't be able to do it, but it has never been a problem.
**** ROGER ALLAN NICHOLLS RXN MR BLAIRS
PN395
So there's multi-skilling going on?---A lot of multi-skilling as far as people that are grade 4s that do receiving are now trained on reach trucks and that happens, they may be on grade 4 all day, but if you need two hours back on a reach truck and you don't get enough volunteers on a normal day, then a lot of people that do receiving all day would come on to overtime for the last few hours of a day on a reach truck, although they don't do that job any other time during the week and I think it is obviously a good thing for the company to have and that is just one. A lot of people are actually trained on reach trucks now and the company had an extensive program over the last year or two where they made a big investment in it, probably a wise investment.
PN396
So on that scenario, if there was three reach truck drivers and only two volunteer, you could possibly pull a reach truck driver from another area who is also trained as a reach truck driver?---Yes, that is correct.
PN397
Due to the multi-skilling that is going on?---Correct.
PN398
I don't have any further questions.
THE DEPUTY PRESIDENT: Mr Holden, you can stand down. You are released. Thank you.
<THE WITNESS WITHDREW [11.04AM]
PN400
THE DEPUTY PRESIDENT: I take it you are calling Mr Ogden.
PN401
MR BLAIRS: Mr Wayne Ogden.
THE DEPUTY PRESIDENT: Very well, let's have Mr Ogden sworn.
<RAYMOND WAYNE OGDEN, SWORN [11.05AM]
<EXAMINATION-IN-CHIEF BY MR BLAIRS
PN403
MR BLAIRS: Mr Ogden, have you brought a copy of your witness statement with you today?---I have just given it to Roger Nicholls.
PN404
Is that a copy of it just there?---That is it, yes.
PN405
Now, your Honour, as an administrative matter, I am not sure if the copy you have got in front of you is two pages in length. Is that correct?
PN406
THE DEPUTY PRESIDENT: It is, yes.
PN407
MR BLAIRS: I think you will notice in point 6 that there is actually a reference to attachment 1.
PN408
THE DEPUTY PRESIDENT: Yes.
PN409
MR BLAIRS: Which if you look at the end obviously isn't attached there. I believe that attachment was mistakenly attached to the witness statement of Jeff Berryman and so the attachment 1 referred to in point 6 is actually attached to the end of the witness statement of Jeff Berryman.
PN410
THE DEPUTY PRESIDENT: It starts with schedule A?
PN411
MR BLAIRS: That is correct.
PN412
THE DEPUTY PRESIDENT: It is like an agreement under the former State Act?
PN413
MR BLAIRS: That is correct. Now, that is actually attachment 1 from
Mr Ogden's statement and we would seek to tender the statement of Mr Ogden and attachment 1.
PN414
MR MANUEL: I have no objection to attachment 1. Perhaps if I could just outline on the same basis?
PN415
THE DEPUTY PRESIDENT: Yes.
PN416
MR MANUEL: Paragraphs 7 and 9 as opinion, paragraphs 12, 13 and 14 as opinion, paragraph 16 as opinion, paragraphs 18 and 19 as opinion and paragraphs 20 and 21 on the basis of relevance.
**** RAYMOND WAYNE OGDEN XN MR BLAIRS
PN417
THE DEPUTY PRESIDENT: Very well. Knowing those objections, the witness statement is amended to add what is now attachment 1.
EXHIBIT #R4 STATEMENT OF R W OGDEN
PN418
MR BLAIRS: Although it is actually outlined in the witness statement, just for the sake of the Commission's clarity, if you would have a look at point 10 on your witness statement there. I think that it actually extends out to 10 and 11. Could you just expand for the Commission's benefit on the events that actually occurred around that time?---Sure. Well, back then we had a warehouse manager, Richard Krosowski and back then I think they had a problem with their staffing, so what they would do is they would try to force people to do the overtime and what he instructed some people to do was to work on an Easter Monday and when they rejected this, you know, all overtime is voluntary, when they rejected it, he basically said to them, well, you won't have a job on the Tuesday when you come back, so this went to a head and obviously it went through discussions and in the end, he actually backed down on it, saying, well, we can't force people to work and it was going to cost them jobs. It was obviously going to bring the union into it, in which case then he backed down and that used to come up on certain occasions. I would say on two or three times I had known Richard to do that. He used to try and beg people to do overtime, then I guess it went from there to demanding and, as I say, it was overtime which people knew was overtime.
PN419
Now, could I turn you to paragraph 12 on the next page? You mention there that it is more cost effective for Woolworths to compel employees to work on public holidays than it would be to get them to work overtime on Saturday. Could you just explain that?
PN420
MR MANUEL: Objection.
PN421
THE DEPUTY PRESIDENT: Yes, Mr Manuel.
PN422
MR MANUEL: I object to this paragraph on the grounds that it is opinion. If my learned friend wishes to pursue this line, he really needs to establish the expertise or experience of this witness, to make comments in respect to the costings of Woolworths for its undertakings. Now, with no disrespect intended to him, as he is employed as a storeman, not as a person with any involvement at all in finance and nor has he put forward any qualifications in finance, we would object.
PN423
MR BLAIRS: Your Honour, the statement is made on the basis that Mr Ogden has put forward his qualifications as an SDA union rep between 1987 and 1996, for a period of nine years and the statement is intended not to cost Woolworths' entire operation, but just to interpret the EBA and perhaps give some insight into the terms of the EBA and whether according to the terms of the EBA, it would be more cost effective for an employee to work on a Saturday as overtime than it would to work on a public holiday for the company. We are not intending that he would be able to put forward any evidence regarding the entire operations of the company and what numbers would be required, but just in terms of interpretation of the agreement.
**** RAYMOND WAYNE OGDEN XN MR BLAIRS
PN424
MR MANUEL: Sir, he can't interpret the certified agreement. That is a role for the Court. That is a second objection.
PN425
THE DEPUTY PRESIDENT: Mr Blairs, I take it that this evidence is about the direct employment costs arising from differential penalty rates on Saturdays and weekends. Is that the nature of the - - -
PN426
MR BLAIRS: That is correct.
PN427
THE DEPUTY PRESIDENT: Based on the similar approach to
cross-examination you made to I think Mr Holden?
PN428
MR BLAIRS: That is correct, to put an interpretation forward to the Commission and if that interpretation is then - or would be argued to be incorrect or deemed by the Commission to be incorrect, then that would be a matter for the Commission to consider, but I think there are nuances in the agreement that I think it is appropriate to highlight to the Commission and I think this is a particular nuance that Mr Ogden as an SDA delegate for a period of time is able to explain.
PN429
THE DEPUTY PRESIDENT: Yes, but is the evidence you are going to lead precisely what you put to Mr Holden in cross-examination, or are there other elements?
PN430
MR BLAIRS: Look, the evidence I think would be up to Mr Ogden as to what he would put forward. That would be the intent of what I would expect to come from that evidence.
PN431
THE DEPUTY PRESIDENT: Because it just strikes me that if it is about the interpretation of the agreement, that is a matter, to the extent to which it is relevant, it is a matter for the Commission to resolve in light of submissions. If it is about costs generally, then certainly there is no foundation yet given to indicate how Mr Ogden could talk about costs more generally. I suspect this is a matter of submissions, rather than evidence, if there is going to be an objection about it.
PN432
MR BLAIRS: Your Honour, the intent was just to highlight the particular differences and if the Commission has deemed that is more appropriately dealt with in submissions, then we will be happy to deal with it in submissions.
PN433
THE DEPUTY PRESIDENT: I have not heard anything that would not be best left to submissions. If there is some evidence here that is not obvious, it is not clear to me that there would be any purpose there, given the objection that has been raised.
**** RAYMOND WAYNE OGDEN XN MR BLAIRS
PN434
MR BLAIRS: I will move on, then. I only have one more question or point of highlighting which is with regards to clause 15. In terms of that statement there in paragraph 15, could you just quickly expand on that particular point?---Well, basically, yes, the company have called on - over Christmas time of 2004, they called on volunteers. They have what they call expressions of interest, for people to put down for overtime on the days where required to work, where they would like them to work as a voluntary basis. What happens is they put the expressions of interest in. I put my name down on one of those occasions to work over the Christmas period and then they have come along on the day before or two days prior and said we don't require you to work on those days, we don't have any overtime available. That is on more than one occasion that that has happened in regard to Christmas and also in regard to public holidays. I am actually going through it again this Sunday, so the same thing.
PN435
I have no further questions.
THE DEPUTY PRESIDENT: Thank you.
<CROSS-EXAMINATION BY MR MANUEL [11.15AM]
PN437
MR MANUEL: Mr Ogden, do you have your statement before you? Do you have the annexure?---Pardon?
PN438
Do you have the annexure? There should be an annexure, schedule A?---Yes.
PN439
In paragraph 6 of your statement you say:
PN440
I recall that the wording of the 1984 agreement clearly showed that work on public holidays was voluntary.
PN441
Now, is schedule A the agreement you are referring to in there?---In what part of schedule A are we talking about? At the very top?
PN442
Well, it is your statement. It says:
PN443
I recall that the wording of the 1984 agreement clearly showed -
PN444
?---Yes.
PN445
Is schedule A the agreement you are referring to?---I am referring to the one that comes under public holidays which is clause 15, paragraph 2.
**** RAYMOND WAYNE OGDEN XXN MR MANUEL
PN446
Right, so if I can just get this clear. As I understand your evidence, schedule A is in fact the agreement you are referring to and when you are talking about the particular public holidays issue, you are referring to clause 15 of that agreement, is that correct?---That is correct, because I don't see anything that says if required in schedule A in the other clauses, so I am talking about the clause that does say that and that is referring to the public holidays.
PN447
Now, you are referring to clause 15, Sundays and public holidays. Now, that covers, as it says, both Sunday and public holiday work, doesn't it?---I don't see where it mentions - - -
PN448
Clause 15, heading Sundays and public holidays, subparagraph 1:
PN449
All time worked on a Sunday should be at the rate of double time.
PN450
And you agree that covers Sunday work?---Yes.
PN451
And in terms of public holidays, you say that work on public holidays was voluntary and what provision do you rely upon for that view?---Because - - -
PN452
Just tell me the clause first?---Sorry?
PN453
You said here that the 1984 agreement clearly shows that work on public holidays was voluntary?---Correct.
PN454
I just want you to take me to the clause?---Because what does holiday mean, public holiday?
PN455
No, it is a very simple task. I ask the questions, you answer them. You don't make debates with me. Now, where in this document, anywhere in this document, does it say that public holidays are voluntary?---It says it in the whole thing. If you read the whole statement, it says:
PN456
The days on which New Year's Day, Australia Day, Good Friday, the day after Good Friday, Easter Monday, Anzac Day, Adelaide Cup Day, Queen's Birthday, Christmas Day and 26 December, Commemoration Day, are observed and any other day which by Act of Parliament may be created a public holiday.
**** RAYMOND WAYNE OGDEN XXN MR MANUEL
PN457
Well, I have only ever known a public holiday to mean one thing.
PN458
Does it say voluntary anywhere in here?---It would be overtime, which is voluntary, yes.
PN459
Where?---Every - - -
PN460
No, take me to the clause. You say it says voluntary for overtime. Please take me there?---Well, that is specific in the fact of the rates of pay. Surely my normal hours do not count time and a half and double time as rates of pay.
PN461
I have asked you, you have said - - -?---Well, I am explaining - - -
PN462
Listen. You have said overtime is stated to be voluntary in this agreement. Where?---Because of the rates of pay they are charging for that.
PN463
What clause?---It tells you what the rates of pay are there.
PN464
What clause?---It should be paid at the rate of double time and a half within - it is in the same clause.
PN465
THE DEPUTY PRESIDENT: It is reasonable for the witness to indicate how he takes that view. I must say there will be a question of what weight to be attached to any of this.
PN466
MR MANUEL: With the greatest of respect, the fact is that it is not for the witness in cross-examination, when he has had an opportunity to be examined in chief and will have an opportunity in re-examination to embark on his own frolic as to how he wants to answer the question. I have asked him a very direct question and that is what - because he refers to the agreement himself - what clause shows that overtime is voluntary? He can answer on as to how he gets to it later, but I just want to know the clause. If he can't tell me the clause, that is fine.
PN467
THE DEPUTY PRESIDENT: I suspect this will be the long way around, but perhaps in that context, listen carefully to Mr Manuel's questions and answer them as precisely as you can.
PN468
MR MANUEL: Perhaps I will put it in a different way. You have obviously been referring to something within the agreement in answering my questions. What provision are you referring to?---I am going to clause 15 and paragraph 2.
**** RAYMOND WAYNE OGDEN XXN MR MANUEL
PN469
All right. You then said to me that overtime was voluntary. I am asking you to undertake the same exercise. Go to the clause where you say it says overtime is voluntary and tell the Commission what clause that is?---It has always been the understanding in this clause here, the way that it has been read - - -
PN470
Which clause?---In clause 15, paragraph 2, that all overtime - it says:
PN471
The rate of pay within the minimum payment for a rate of four hours -
PN472
And it gives you those rates of pay. Now, all our overtime is voluntary, all overtime is voluntary.
PN473
Could I take you to clause 12, subclause 2, where it says:
PN474
An employer may require any employee to work reasonable overtime at overtime rates and such employees shall work overtime in accordance with such requirements.
PN475
That is not voluntary, is it?---I believe it is. I believe it is the two parties.
PN476
Do you know what the word require means?---I know what the word requirement means. I know what if required means.
PN477
The word shall?---Shall means will.
PN478
The employee then - your interpretation, the employee will work overtime and you say that is voluntary, do you?---Mm, reasonable.
PN479
Now, in terms of public holidays, you are not responsible for organising the work, are you?---I beg your pardon?
PN480
You are not responsible for organising the work?---No, I am not responsible.
PN481
It is a matter for the company to decide that they want to work on public holidays and such?---Mm.
PN482
And when the company makes that decision, they put out some sort of expression of interest form, is that right?---That is correct.
**** RAYMOND WAYNE OGDEN XXN MR MANUEL
PN483
And then if you wish to express interest, you fill it out?---Mm.
PN484
And it might for instance have some limitations on it as to the number of hours or whatever is required?---Yes, sometimes.
PN485
Some time before the public holiday and I think the evidence is usually a few days before the public holiday, someone will come out and say to you, for instance, we need you to work on the public holiday, is that right?---No, no, they will have expressions of interest, then if it has been okayed, they will then let the people know over the PA that the overtime is available if your name is written on that piece of paper, then you are available for overtime.
PN486
All right, so is there another piece of paper put out other than the expression of interest?---No.
PN487
So then is there something noted on it to show whether or not you are working?
---No, I don't believe so.
PN488
Well, let's come back to the PA, then. They call out on the PA. How do they identify who is required for the public holiday?---Who is required?
PN489
Yes. Well, how do you know if you are required on the public holiday?---They usually let you know. They usually got to the PA. I mean, I work in an area where we don't get this PA, if you like, because it is out in the warehouse. I work in the inventory area, so they would notify me, the person doing the attendance would notify me.
PN490
Right, so as I said to you before, someone would come up to you and say
- - -?---Well, they would phone me.
PN491
In terms of the other areas, would they call the names out over the PA?---I don't work in that area all the time. It is only from the times when our area was in the warehouse, we would hear the PA and back then they used to. They used to say it has been confirmed, please note, all overtime is confirmed or if not, then they would obviously let you know who was and who wasn't, I guess.
PN492
Now, at the point of time that you are confirmed, are you obliged to work on the public holiday?---If it has been confirmed. If your name is down there, then I would expect you to be working, yes. If you put your name down to work and then they say it is confirmed, I would think you would, yes.
**** RAYMOND WAYNE OGDEN XXN MR MANUEL
PN493
Not only you. I mean, if your name is accepted or you are accepted to work for the public holiday, do you believe you have an obligation
to turn up at that time?
---If I put my name down, I think I have an obligation, if it has been confirmed.
PN494
Yes, that is all I am asking. Now, in terms of volunteers, there are specific skills requirements, aren't there?---Yes, do you mean reach truck? Do you mean order picking?
PN495
Yes, for work on a public holiday, there is going to have to be a mix of people with different skills, is that right?---Yes, I suppose. I mean, I don't run the warehouse, but I would imagine so, yes.
PN496
When you say you are a storeman, are you a grade 4?---I am grade 4, but I also do reach truck and I also do receiving and I have also done floor picking.
PN497
Right, so as a grade 4, for instance, you have particular computer skills?---Yes, I do use the computer daily, yes.
PN498
And there will be a range of people within the organisation who couldn't do your job, wouldn't there?---I would imagine there could be, yes. We don't do overtime in our area, though, I might add.
PN499
All right. When you do overtime on a public holiday, what role do you fulfil then?---Reach truck work normally.
PN500
The reach truck requires a particular licence, is that right?---Yes, yes.
PN501
And the same applies then, the person who doesn't have a licence couldn't possibly use the reach truck, could they?---I wouldn't think so.
PN502
Not lawfully?---Not lawfully, no.
PN503
If there was a need for four people with a reach truck licence and only two volunteers, what would happen in your understanding?---Are you talking in a very small scale here, because obviously we have got about 40 or 50 reach truck drivers, so I don't think it would get to that extent, but basically if they had four reach truck drivers availability for it and only two did it, then I would imagine then they would have to review the way they have got the overtime. It may be that they put it over eight hours, a full day, so maybe they might need people to come in for four hours and perhaps do it that way. They might be able to get them that way. I don't know, but I have never known it to happen. Generally we run out of machines before we run out of forklift operators or reach truck operators. You know what I mean? There's more people than there is machines.
**** RAYMOND WAYNE OGDEN XXN MR MANUEL
PN504
Yes. Thank you, Mr Ogden.
PN505
THE DEPUTY PRESIDENT: Any re-examination?
PN506
MR BLAIRS: No re-examination.
THE DEPUTY PRESIDENT: Very well, Mr Ogden, you can stand down and you are released. Thank you.
<THE WITNESS WITHDREW [11.26AM]
MR BLAIRS: Your Honour, I wish to call Mr Christopher McGrath.
<CHRISTOPHER HENRY MCGRATH, SWORN [11.27AM]
<EXAMINATION-IN-CHIEF BY MR BLAIRS
PN509
MR BLAIRS: Mr McGrath, have you got a copy of your witness statement there?---Yes.
PN510
You identify that that is your statement?---Yes.
PN511
Your Honour, I wish to tender the statement of Mr McGrath.
PN512
THE DEPUTY PRESIDENT: Mr Manuel.
PN513
MR MANUEL: The same process again if I may, your Honour. Paragraphs 5 to 7 inclusive as opinion, 8 on the basis of relevance, paragraphs 9 to 10 inclusive on the basis of hearsay, paragraph 11 on the basis of opinion and paragraphs 13 to 16 inclusive on the basis of opinion.
THE DEPUTY PRESIDENT: Very well, noting the objections, the witness statement of Mr McGrath will be admitted and marked.
EXHIBIT #R5 STATEMENT OF C H MCGRATH
PN515
MR BLAIRS: I have no questions.
THE DEPUTY PRESIDENT: Thank you.
<CROSS-EXAMINATION BY MR MANUEL [11.28AM]
PN517
MR MANUEL: I think on this occasion I might even be reasonably brief.
PN518
Mr McGrath, when was the last time you worked on a public holiday?---I couldn't recall.
PN519
Perhaps if I could just lead you through it. In the last 12 months, have you worked on a public holiday?---Not to my knowledge, no.
PN520
What is your role at Woolworths? What do you do?---I am a storeman, but I do have a WorkCover injury, so I am under restrictions.
PN521
Do you have training in for instance forklift or reach truck?---That is how I injured myself, on the reach truck, but I did used to drive a reach truck, yes.
PN522
And the reach truck requires a special licence, doesn't it?---Yes, yes.
**** CHRISTOPHER HENRY MCGRATH XXN MR MANUEL
PN523
And although there has been a degree of multi-skilling within Woolworths, not everyone has that licence, do they?---No.
PN524
If we are talking about working on public holidays, we would need a mix of people, wouldn't we?---Yes.
PN525
It would be for Woolworths to say how much work was to be done on any given day, is that right?---Yes.
PN526
And for Woolworths to say we need this number of people made up of these skills, that would be right, wouldn't it?---Yes.
PN527
If you can't get all of the necessary skills, that will reduce the efficiency of the work, won't it?---If you want a yes/no answer, yes.
PN528
I don't want to hold you to that. I realise the permutations could be quite complex, depending on what skill you are missing and who is not there, but putting it another way, the ability to have the reach trucks working at maximum capacity is very important to the efficiency of the work, isn't it?---It does go hand in hand, because if the order pickers are working too fast, then the reach trucks can't keep up, anyway, so it does change from day to day.
PN529
It would be worse if you didn't have enough reach trucks, wouldn't it?---Yes, I would agree with that.
PN530
In terms of - and I appreciate your answer to this might be I don't know, but I would like to ask you, anyway. As we understand from the evidence, the process for volunteering is that the company makes a decision as to a public holiday to be worked and there is an expression of interest form put out?---Yes.
PN531
People then go and fill their names in if they are interested?---Yes.
PN532
And then some time, two or three days, maybe a bit longer, before the actual public holiday, there is some confirmation given to people who want to work?---It is not that quite far out.
PN533
All right, I am talking about the time frame?---I would say if the public holiday is on the Monday, they would tell us on the Friday.
**** CHRISTOPHER HENRY MCGRATH XXN MR MANUEL
PN534
Invariably or usually or most of the time?---Usually, most of the time, yes.
PN535
Yes, so occasionally it might be earlier, but generally it would be on the Friday?
---Yes.
PN536
From your perspective, and this might one you can't answer, from your perspective, once you make a commitment on the Friday, you put up your expression of interest, they have said yes, we need you, you say, right, I am in, are you then in your view obligated to carry the work out? I mean, for instance, could you change your mind and not turn up on the Monday?---The times that I may have worked - I have been there for six years, the times that I may have worked overtime, I would do it because I made that commitment. I can't necessarily answer for what other people do.
PN537
Certainly no sanctions for not working, are there?---Again, I would ring up if I couldn't make it, but as far as I know, there doesn't appear to be - if people don't turn up, they are not necessarily refrained from maybe doing another public holiday, no.
PN538
I may be taking you beyond your breadth of knowledge?---Okay.
I have no further questions. Thank you.
<RE-EXAMINATION BY MR BLAIRS [11.33AM]
PN540
MR BLAIRS: You mentioned that you could do a number of jobs out there and there's a lot of people that could do a number of jobs out there. Are there a number of people effectively, say, over-qualified or that could drive reach trucks, for example, using the example that is put forward that aren't doing that or that don't do that?---I would say there are more reach truck operators than reach trucks, so there's a large pool.
PN541
So what would be the likelihood of - you suggested or put forward that it hasn't happened so far, but what would be the likelihood of there being sufficient numbers, given that the number of reach truck drivers or operators to actual reach trucks?---Could I have that again?
PN542
Just given that the number of reach truck operators to reach trucks and there's a call for volunteers that goes out, I mean, what would be the likelihood of there being insufficient numbers of people qualified to drive or operate reach trucks, volunteering?---To my knowledge, reach truck work has always been classed as sort of an easier job at the warehouse, so therefore if people are going to get paid more money for doing a slightly easier task, they jump at it.
**** CHRISTOPHER HENRY MCGRATH RXN MR BLAIRS
PN543
And if there were, for example, insufficient volunteers on a Monday, to take you as an example, if you volunteered as a reach truck driver on a Monday, but there were insufficient numbers, would you consider working on the Sunday as well, as overtime on a Sunday, if that was put forward as an option?---I would say so, but obviously in my incapacity, I can't do that, but in the past, yes.
PN544
No further questions.
THE DEPUTY PRESIDENT: Very well. Thank you, Mr McGrath, you are concluded and you can stand down. Thank you.
<THE WITNESS WITHDREW [11.35AM]
<JEFF JAMES BERRYMAN, SWORN [11.35AM]
<EXAMINATION-IN-CHIEF BY MR BLAIRS
PN546
MR BLAIRS: Mr Berryman, you have just been handed a document. Is that document the witness statement that you tendered?---Yes, it is.
PN547
Your Honour, I would like to tender this document as an SDA exhibit.
PN548
THE DEPUTY PRESIDENT: Yes, Mr Manuel.
PN549
MR MANUEL: Paragraphs 5 to 7 inclusive as opinion. I might add there is a general objection to this as to relevance insofar as it relates to matters occurring between 1983 and 1997 and paragraphs 12, 13 and 15 as opinion.
THE DEPUTY PRESIDENT: Noting the objections, Mr Berryman's statement will be admitted and marked.
EXHIBIT #R6 STATEMENT OF J J BERRYMAN
PN551
MR BLAIRS: Mr Berryman, at paragraph or point 4 of your statement, you stated that you were assistant manager and that as assistant manager, you were the most senior person at the site. Could you just expand on what types of duties or duties you had specifically regarding rostering?---Responsible for all staff, rostering, we co-ordinated that through Salisbury and responsible for moving stock in and out of the site.
PN552
Okay. Now, you were the senior person at that site until 1997, according to the statement here?---Yes.
PN553
Were you familiar with the enterprise agreements that were in place right through that time?---Yes.
PN554
And was there an agreement in place at the Gepps Cross warehouse site prior to you leaving in 97 or stepping down in your role?---Yes.
PN555
And can you recall what the public holiday clause was - - -
PN556
MR MANUEL: Objection. He can't give evidence. That is hearsay. If there is a document that exists, it needs to be put forward. It can't be given from the memory of the witness.
PN557
MR BLAIRS: I withdraw the question. You state at paragraphs 8 and 9 that you were never informed throughout that period that you were able to compel employees to work. Can you just let us know, or inform the Commission who it would have been above you, or who was above you at that time that would have had these discussions?---It would have been John Piper, the warehouse manager at Salisbury.
**** JEFF JAMES BERRYMAN XN MR BLAIRS
PN558
And so effectively, he would have been the person, if anyone, who would have instructed you that you could compel employees to work,
if that was the case?
---Yes.
PN559
I have no further questions.
PN560
THE DEPUTY PRESIDENT: Mr Manuel.
PN561
MR MANUEL: Your Honour, I apologise for this, but I have decided I don't need to ask any questions of this witness.
THE DEPUTY PRESIDENT: Very well. Mr Berryman, you are finished. You can stand down and you are released. Thank you.
PN563
THE DEPUTY PRESIDENT: Mr Blairs, does that conclude the evidence in your case?
PN564
MR BLAIRS: It does conclude the evidence.
PN565
THE DEPUTY PRESIDENT: It might be appropriate if we take a 10 minute break and hear submissions.
PN566
MR MANUEL: Before we do, your Honour, who do you wish to hear from first?
PN567
THE DEPUTY PRESIDENT: Well, if that can't be resolved between counsel, then I will determine that. Generally speaking, if a respondent leads evidence, then they make submissions first, but there is no hard and fast rules here, gentlemen. There is no strategic advantage in my view. Whoever goes first will have a right of reply.
PN568
MR MANUEL: Yes, thank you, sir.
PN569
THE DEPUTY PRESIDENT: So if you can't sort it out in the break, then I will make a decision.
<SHORT ADJOURNMENT [11.40AM]
<RESUMED [11.56AM]
PN570
THE DEPUTY PRESIDENT: Mr Manuel, have you drawn the short straw or the long straw?
PN571
MR MANUEL: It would appear so. Your Honour, you have heard a brief opening. I don't propose to go back either over that material, or for that matter, the outline that we filed.
PN572
THE DEPUTY PRESIDENT: That's fine.
PN573
MR MANUEL: Rather, just to highlight certain point which we consider are important. Can I make one observation in terms of the law, and that is the position of Woolworths isn't that the Commission should ignore full Commission authority; rather, it is that it should be extremely careful about following factual structures or factual circumstances. That's the analogy we drew with the unfair dismissal jurisdiction. Insofar as the full Commission decisions suggest that the discretion of the Commission is anything other than at large, then we would respectfully disagree with those findings.
PN574
In any event, we say from our perspective, it won't make any difference to the final determination of this matter, so it may well be a moot point. That gives rise to another issue, which is the onus of proof. Onus of proof is always somewhat problematic when dealing with arbitral powers, particularly with a Commission such as this, that if it was minded to, could inform itself. Therefore, we'd suggest that there isn't really an onus of proof. However, the situation may well be as follows, that if you have an ambiguity and no way to resolve it, whether it be from the words of the document itself or from the evidence that is put before you, that it may be that the appropriate response to do nothing, that is not one which we obviously put forward, but that may be, if you like, an onus of proof in the sense that someone has to put before you evidentiary material - - -
PN575
THE DEPUTY PRESIDENT: To persuade me to do something.
PN576
MR MANUEL: Correct, and we put it no higher than that. It's certainly not necessarily a matter of saying the union is right or Woolworths is right. It's a question of the Commission correcting an ambiguity that is consistent with the agreement that was originally struck, or as consistent as it can be with the agreement that was originally struck between the parties. I am minded that in respect of evidence, there will be a comment made, "Well, the volunteer system has worked till now, therefore don't worry about the future", there's a couple of observations on that.
PN577
Firstly, a certified agreement does not operate at a point of time; it operates over anything up to 3 years, and obviously if it goes beyond its nominal expiry date, quite a bit longer than that. As a consequence it is, if you like, a living instrument that continues to govern the obligations of the parties from each moment to the next, and so therefore to ignore the future. Even if its legal application might finish in October, the fact is, if agreement is not reached between the parties, it could operate for some time after that. So it's not a matter of just saying, well, we can afford to let this just slide away from now and hopefully the parties might be able to resolve it.
PN578
There's certainly no indication on the evidence that's been put before you that there is any particular common ground between the parties. In terms of the order that we have put forward, I should explain that that order was on the basis of an absolute, and that is, that Woolworths asserts that it has an absolute right. There are two comments to make on that. One is the practical comment, and that is that it may well be, as a matter of management prerogative that even with an absolute right, Woolworths would not choose to do anything other than use the volunteer system, and only top up by using its authority to do so.
PN579
The second is, it may well be the Commission's view that some sort of hybrid - not trying to exercise the wisdom of Solomon - but some sort of hybrid between the views of the SDA and the views of Woolworths actually represents the true intention of the parties, and that is along these lines; that in so far as possible, volunteers should be used, but it could never have been the intention of the parties to deny Woolworths the ability to run its business. So, insofar as that is concerned, an obligation or a right to direct persons, if you like, to top up the pool could well be what the Commission finds to exist.
PN580
In terms of the evidence before you, the evidence from Woolworths is bluntly unchallenged. It makes it fairly clear as to the changing
circumstances faced by Woolworths. It also makes it clear that in the past it has taken the path of what might be described as least
resistance. As a general proposition, they can't be criticised for that. It doesn't become a custom and practice. As I gave you
the example before of a stand-down, an agreement could well include a stand-down provision which is not exercised - or an award could,
which is not exercised for
20 or 30 years. It may be that the employer decides it would rather pay its employees than stand them down, even though it has
the right to do so.
PN581
That does not abrogate the right of the employer to exercise that power when it chooses to do so. In terms of the evidence put forward by the union, there's no doubt it's honestly put forward, it's honestly felt. Perhaps in some circumstances, too strongly felt, and to the point of becoming barracking. In terms of Mr Farrell's evidence, and this is a complaint that can be made, as you should see, across the range of statements, a lot of it is hearsay. A lot of it is not relevant because it relates to circumstances that do not actually pertain to the matter before the Commission. I would say that Woolworths cannot be held for the conduct of others at different times, in any event.
PN582
Now, much of the statement is opinion and it could be said, well, Mr Farrell's well-known, he's been around in the industrial game for an extended period of time, he's a senior union official. However, being a senior union official does not make you an expert. It may make you an expert on certain industrial matters, but not necessarily on the meanings of certified agreements. I might add that he wasn't really put forward on that basis, in any event. Mr Nicholls' evidence; again, clearly given honestly. Must of the statement, though, is recording his own opinions and his own views. He also tries to give evidence as to what other employees think, which of course is hearsay, and the petition is clearly hearsay.
PN583
So as impressive as it might seem, it really doesn't advance the interests very far. I should add that having regard to the nature of the petition, it's probably evidence that the petitioners couldn't have given either, having regard to the rules against hearsay. Likewise, the observations as to usual practice in savings clauses are basically irrelevant to the interpretation of this particular matter. Now, Mr Ogden clearly had a strong belief; I think that's well-demonstrated if you look at appendix A. Despite what Mr Ogden asserted was actually said within the agreement, in nowhere was the agreement actually supportive of what he was putting.
PN584
In fact, the provision in respect of overtime was directly in contradiction with the matter that he put, because sub-clause (2) of clause 12 provides:
PN585
An employer may require any employee to work reasonable overtime at overtime rates and such employees shall work overtime in accordance with such requirements.
PN586
That's clearly a mandatory provision, enabling the employer to direct reasonable overtime, and the only area of debate would be if the employer made a demand that was unreasonable, yet somehow that was put forward as indicating that it was all voluntary. Now, clearly what has happened, as Mr Ogden has assimilated his own perceptions as to what the situation was, and then interpreted the agreement; on either basis, it's of little help. Likewise, the claims in respect of the 1987 dispute are really basically irrelevant. My recollection is that that's actually before certified agreements started, whether under the Industrial Relations Act 1988, which I think was the first tier, or the subsequent Workplace Relations Act 1996. Likewise, it contains evidence as to the view of others.
PN587
Now, Mr Berryman, again we have the objections that we have already advised to you and I would say that his reliance upon matters was late, most recently 1997, is going to be of little assistance. He also seeks to draw inferences from what is not told. That's a very difficult task. There would need to be a lot more surrounding that information to enable any such inference to be drawn, and those general comments in respect of the SDA witnesses really mean that there is very little evidence before you from the SDA which will assist you in this matter. In terms of the resolution of ambiguity, I don't propose, with respect, to take you through those matters other than to note the certified agreement itself is still the best indicator.
PN588
There's no doubt that the words of the certified agreement, although your Honour has considered them to be ambiguous in respect of clause 40, they nevertheless give the structure and the intention of the parties far better than either party coming before you and saying, well, we believed it was this and the other party saying, we believed it was that. So, the plain meaning of these words will be the best indicator to assist this Commission. In terms of the certified agreement itself, if I could take you to that? I know I have taken you previously, your Honour, to clause 40 in some detail. Perhaps if I can do it backwards, if I may, and take you to some of the surrounding provisions?
PN589
However, before I do that, I should deal with the matter of a decision in the Supreme Court of South Australia. This is the case of Tempo Services Ltd v Roberts and Anor. This is an appeal to the Full Court of the Supreme Court. The circumstances of this was that an award which had the phrase:
PN590
Required to work permanently -
PN591
And that is what was actually interpreted by the Supreme Court, and on our view, it turns very much on its own facts within that particular award. However, it caused me sufficient concern, I thought I should at least bring it to your Honour's attention as a potentially relevant document, but we would say that it doesn't actually impact; it very much turns on the detailed structure of the particular award in question, and in particular, on the phrase rather than on the word required. However, what I should point out is that it talks about an employee being required to work permanently in a circumstance where the employer says, do you want to work afternoon shift? And then the acceptance of the employee and their compliance with that acceptance becomes - falls within the word required.
PN592
So I am not sure I can help much further with that particular decision, but I thought it was appropriate that it be before the Commission because of some superficial similarities.
PN593
THE DEPUTY PRESIDENT: Yes. Well, certainly White J, I think, if I have that correct in terms of who wrote it?
PN594
MR MANUEL: That is correct, sir. Yes.
PN595
THE DEPUTY PRESIDENT: Yes, he wrote the leading judgment. He does, as I recall, deal with what required might mean in the particular context.
PN596
MR MANUEL: My recollection is, and this is probably why it becomes unhelpful for this matter, he also recognises that the term required has an essence of compulsion about it, but then seems - and I mean no disrespect to his Honour - to find that it doesn't. Now, I know that's very much perhaps being a little unfair, but it turns very much within the meaning - or the wording of that particular clause, and so we certainly do not say that it has any particular ramifications here, but as a matter of caution.
PN597
THE DEPUTY PRESIDENT: I understand.
PN598
MR MANUEL: Could I take your Honour to the agreement now, if I may?
PN599
THE DEPUTY PRESIDENT: Yes.
PN600
MR MANUEL: As I said, you may recall that we went through clause 40 on the last occasion and I don't seek to re-make those submissions unless your Honour particularly wishes me to?
PN601
THE DEPUTY PRESIDENT: No, that's not necessary.
PN602
MR MANUEL: What I would like, however, is to take you to some of the surrounding provisions within the certified agreement that may cast some light on this matter. If I could first take you to clause 15 which is headed, "Casual Employment". In particular, 15.3(a) under the heading, "Saturday Work". It says:
PN603
Casual dayshift workers engaged prior to 25 November 1996 who volunteer to work a Saturday shift shall not receive the Saturday shift loading.
PN604
Now, the point we make about that is that the usual rule of construction - well, there's two levels. One is if a word is used in one spot, you would expect it to be used consistently in another. However, the flow-on from that is the fact that the agreement specifically uses the word volunteer in this context, but in the context of clause 40, does not, would tend to the view that that is an intentional omission. Now, I do say that in light of the notion which is well-stated, that certified agreements are invariably not drafted by draftspersons, and therefore a certain fluidity is required and we're not for a moment suggesting that that single clause would cause your Honour to make a decision one way or the other, but it is a matter of getting a flavour of the document as a whole and how words are used within it.
PN605
If I could take you over to clause 22.2.3, which is under the heading, "Redundancy". At 22.2.3, you will see:
PN606
For the purposes of a discussion, the company shall, as soon as practicable, provide in writing to the employees concerned, and the union to which they belong, all relevant information about the proposed terminations provided that the company shall not be required to disclose confidential information, the disclosure of which would adversely affect the company.
PN607
Now again, the word required is clearly used in that context as not being able to direct. In other words, not be required, shall not be required, so it's a mandatory, shall, not be required. Again, the same word that's used in clause 40 is used in this clause as an imperative, not as a suggestion. If I can take your Honour to clause 28? I don't actually think this advances our position, but I put it to your Honour because it's a reference that I saw to the word required, and it's 28.1:
PN608
An employee who is required to work overtime for 2 hours or more shall be paid the following amount.
PN609
That still begs the question, if you like, the Tempo question, as to whether required is they did it or they were required as they told they had to do it, and so I don't think that takes our case any further. If I take you to paragraph 33, which is headed, "Maximum Hours, Weekend Work and Rosters", and under 33.4(c), and this is interesting:
PN610
All employees hired on or after January 2000 can be required to work every Saturday in ordinary time.
PN611
Now that, as we understand it, it is the power of the employer to roster persons hired after that date so that their ordinary hours are on Saturdays, but it is interesting, the use of the word required again is an imperative. Likewise, in 33.5, or the converse in 33.5 under the heading, Sunday Work:
PN612
Employment on Sundays will be voluntary for current employees as at 24 November who are not already working Sundays.
PN613
Now, clearly that phrase, or that sentence, could easily have been used in respect of public holidays. It's clearly been used specifically here to protect the interests of a particular group of employees. There's absolutely no structural reason why that couldn't have been used in clause 40, if the parties genuinely wanted the work to be voluntary. Your Honour, could I just interpose here to make an observation? We have been arguing on two levels. The first level has been that Woolworths says it has the right to require people. The converse of that is the unions say public holiday work is voluntary.
PN614
The middle ground, which we haven't really debated, is that neither party cast its mind to the issue. Now, if that was the case, then it might be necessary to look at, well, what are the ordinary standards of employment in terms of the ability under a contract of employment to direct someone to work? And what we would then say is having regard to the structure of this agreement, that the more likely than not response is that it wasn't intended that public holidays be voluntary. Because if it was, you would expect the parties to put a similar clause in, as in 33.5. At 36.6, under the heading, "Overtime", you will see:
PN615
Afternoon shift employees who are interested in working Saturday overtime are to advise of their availability for Saturday overtime by the completion of their shift on Thursday evening as per the system nominated by the distribution manager.
PN616
Now, the reason we raise that, your Honour, is because there is a criticism to say, well, there's no process in place for requiring people to work, but here there is a process in place for volunteering, yet there's nothing similar in clause 40 which would tend to negate the argument that there should be a procedure in there, if it was intended. At 42.2(b), this is the sick leave requirement, you will see it says:
PN617
If so required by the company, the employee shall produce to the company a medical certificate.
PN618
Now, that is clearly an imperative. It's a directory provision. It enables the employer to make a demand to require an employee to provide a medical certificate. What we say is that wherever required appears - with perhaps the possible exception of 28.1 with respect to meal allowance - elsewhere in the certified agreement, it is directory. It is a mandatory provision. It provides a right to be exercised. And it would be an unusual interpretation, then, to find that there's a right to be exercised everywhere else but in respect to public holidays, there's something about it's voluntary, in circumstances where the word voluntary has been used elsewhere within the agreement, but is not used within this clause.
PN619
We say, your Honour, that that is enough to justify the qualification of the ambiguity in favour of Woolworths. We also, however, rely on the wider issues. You have heard the issues about the needs of Woolworths. There's no doubt that they're in a dynamic industry. It's probably, if not the most competitive industry in the country, then certainly one of the most competitive. They must supply goods, as you've heard, such as milk and chickens so they don't go off, they need to be provided within an appropriate time. They have to provide out of jets across to Darwin. This is a major logistic operation.
PN620
If they don't meet the needs of their customers, being the supermarkets, then the supermarkets have empty shelves. If the supermarkets have empty shelves, they're losing sales. And so it is a very significant matter. That came up, I think, very clearly in Mr Holden's evidence when he was being cross-examined by my learned friend about the cost of working a public holiday. There's no doubt, if you compare the cost for ordinary time work or even, if you like, ordinary overtime work, with public holiday work, a public holiday, in terms of the wages bill, is more expensive. But that's not the equation, as Mr Holden made quite clear.
PN621
It's a logistical issue as to the cost to the business if they don't manage to get those products out to the stores to be sold. That's why this public holiday work must happen. You can understand, Woolworths are quite clear about it, it should happen as little as possible, but with the expanding and changing nature of the marketplace and with expected regulatory changes which have occurred elsewhere, they have to be in a position to meet their obligations. Very simply, they can't take a laissez faire approach to the notion of, well, hopefully we'll get enough volunteers. That just won't work for them any further.
PN622
The fact that it's worked for them before, if you like, is just an accommodation. Woolworths has had no need to call for or to direct people, other than a very small example back in - many years ago. If, in that circumstance, there's absolutely no reason why Woolworths would want to rock the boat. People volunteer, they're there, they want to earn the money, Woolworths gets the job done. There's no basis for saying Woolworths would be sensible to reject people who volunteered and then replace them with people who are obliged to attend. It doesn't make sense; it doesn't make industrial sense. But the fact that you make accommodations does not give away your rights.
PN623
At the end of the day, if a right exists and it may be exercised, the only time that that ceases to be the case is almost in an estoppel-like situation where you give someone an undertaking and then you decide to back away from that undertaking, to their detriment. Now, in that case, there could easily be a loss of right. But not in this case. And that brings us to the idea of a custom and practice. Custom and practice can either be used in the, if you like, common language term, just as something that is regularly done, or it can be used in the term of art that sometimes appears in an industrial context; that is, almost an enshrined right or an enshrined obligation over and above anything else.
PN624
Firstly, you can't have a custom and practice that's inconsistent with an industrial instrument. Secondly, for the reasons I've already put, there is no evidence before you at all, other than that it's been done for a long time, to say that it's a custom and practice. Because Woolworths has an explanation as to why they haven't taken the issue and because there's no evidence to indicate any direct discussions on the matter, they're simply lost in the mists of time, that is not a custom and practice.
PN625
In terms of the suggestion that, well, hold on, we haven't been given anything for giving away this benefit of voluntariness, with respect, that presupposes that there is voluntariness as a right, as opposed to voluntariness as a sensible piece of industrial relations. So, this notion of somehow you should be able to identify within a certified agreement an amount that would be paid for giving away this voluntariness ignores the history of the matter. The fact is, amounts paid in certified agreements sometimes are split, a per cent for this, 2 per cent for that, but invariably, it's a look and feel approach.
PN626
That is, what will be sufficient to get the deal done and to obtain the benefits, whatever they may be. In many agreements these days, benefits are not obtained. They are just paid for for industrial peace and just to keep the business ticking over. There's nothing wrong with that, but it doesn't mean that there has to have been some change. The fact is, no one can point to any agreement where there's been a change from compulsory to voluntary. It's just been the practice. In terms of the assertion that the 1984 agreement had a voluntary component, if that was true, then in fact that would be against the argument of the SDA because it would indicate that that notion was taken out at some stage after 1987, which would tend to indicate that it's compulsory.
PN627
But bluntly, on the reading of the particular agreement, I can see nothing in there that would assist or indicate that the term "voluntary" is in fact a feature of that particular document. There can be no doubt that there is a genuinely-held view by members of the SDA that this is a voluntary system. Unless that view is also held by Woolworths, however, that carries no weight. It may be that their attachment to the voluntary system would be sufficiently or severely affected if the Commission was to find that it was in fact compulsory, but your Honour, there could either be something within the decision itself to deal with the issue on the basis that I've raised, or there could be a recommendation by the Commission.
PN628
In other words, I find that the appropriate way to resolve the ambiguity is to find compulsion, the right of compulsion, but I recommend that it be implemented having regard to the following structural issues. There would be nothing, we say, inherently wrong with that. May it please the Commission, those are our submissions.
PN629
THE DEPUTY PRESIDENT: As I understand the SDAs proposition, it's that, well look, this is what was operating at the time the agreement was renegotiated, I think on the evidence it wasn't raised or considered by either party. During the course of the agreement, it may be that on the company's view at least, that circumstances have changed, and as I understand the proposition that's advanced by the union, it's that, well, this is the sort of matter you should raise during the fresh round of negotiations which are about to commence. What weight should be afforded, in your view, to the fact that this is the end of the life of a 3-year agreement and about to be renegotiated?
PN630
MR MANUEL: I have given it some thought, your Honour. I'm not sure I have come up with anything particularly satisfactory to assist you. We would not deny that that is potentially a relevant consideration because, as we say, your discretion is at large and industrial impact might well be a factor. The difficulty with the proposition is that it presupposes that there will be a satisfactory agreement reached. I mean, in a circumstance where you have Woolworths saying, well, we've already got the right so why would we give anything for what we already have?
PN631
The SDA is saying, well, no, you haven't got the right. Our members are very attached to the voluntary system and you're going to have to pay if you want to get rid of it. The prospects of a settlement on that basis, although not out of the question, would seem to be difficult. Now, that means that rather than dealing with a matter which might resolve in - you know, if it was agreed between the parties, it might resolve in 3 months; who knows how long it might take? The other benefit of a clarification of the ambiguity is that at least then both parties know exactly where they stand within the negotiations.
PN632
Whether that be Woolworths on the basis of saying, we're entitled to direct, whether that be the SDA on the basis of saying, well, you're not entitled to direct because that's what the Commission has told us, or alternatively, whether it be on the basis of, we have this system which the Commission has assisted us with during this 170MD process, which we can assess and live with and perhaps tinker with. So we would say although it is a relevant consideration, it is not one which should distract you from actually dealing with the issue. May it please the Commission.
PN633
THE DEPUTY PRESIDENT: Mr Blairs?
PN634
MR BLAIRS: Perhaps it might be most appropriate to deal with the admissibility of the witness statements that have been put forward so far, insomuch as the objections raised by my friend regarding specific statements made in certain witness statements, but I think in resolving that question, that the same critical eye has to be cast over the statements of Mr Tzimokas and Mr Holden, in terms of whether there are certain statements in there that would be considered as opinion or as hearsay evidence, that whatever the Commission determines as an appropriate level of evidence to raise, that the same test should be applied to those two statements. The fact that I hadn't specifically - - -
PN635
MR MANUEL: We take no issue with them.
PN636
MR BLAIRS: You take no issue?
PN637
MR MANUEL: No.
PN638
MR BLAIRS: So, I just want to highlight that, as the fact that we haven't - - -
PN639
THE DEPUTY PRESIDENT: The same rules should apply to both parties?
PN640
MR BLAIRS: Yes. The fact that we haven't specifically stated paragraphs by no means means that we don't take issue or don't have the same concerns with them. I have taken - to an extent that the statements provided by both parties, that - and I think it's clear that they are what the parties have wanted to say and wanted to put forward in front of the Commission here today as issues that they believe were relevant, and I think that's a factor that should be considered by the Commission. I don't think that the statements of Mr Tzimokas or Mr Holden were actually - although some assistance may have been given, they're not doctored statements or drafted by Mr Manuel or EMA Legal.
PN641
They are honestly-given statements and they are statements regarding what these two people believe are relevant considerations, and I think the statements put forward by the SDAs witnesses likewise are reflective of what the witnesses believed should be considered by the Commission, and it is now up to the Commission how much weight they should place on those.
PN642
THE DEPUTY PRESIDENT: Look, I must say, in my experience it's more common than not for evidence in this jurisdiction to be replete with hearsay and opinion, and without ruling on the particular objections that have been made, generally speaking it comes down to weight and utility, given the nature of the Commission's charter.
PN643
MR BLAIRS: I would agree with that approach and refer to section 110 of the Workplace Relations Act which I think actually specifically allows the Commission to put some weight, or give some weight, to the statements being put forward, even though they might in another jurisdiction be struck out wholly on the basis that they're opinion or that they're hearsay, that the Commission is not bound by the strict rules of evidence and should consider the evidence put in front of it and give the appropriate weight to such evidence, and I think the Commission, as rightly pointed out, does this on a regular basis and is not a stranger to that particular process. We would assert that that would be the appropriate action to take in this matter also.
PN644
THE DEPUTY PRESIDENT: Yes. Having said that, of course, I think it's fair to say that the Commission always, or at least should always, in my view, look at what are the natural justice considerations behind the rules of evidence, because they're often well-founded on natural justice principles, not the technicality of evidence law, and in that context, obviously there's hearsay and there's hearsay. It is a question of the context and what it is that's being alluded to and what the fairness is to the other side in terms of the capacity for that evidence to be tested. So I just thought I should complete the general view.
PN645
MR BLAIRS: That's entirely correct, and we would support that statement. Now, that said, I agree with a number of propositions put forward by my learned friend, in that the onus of proof, I don't think, falls on any one particular party in this matter, but we would suggest that if no party could discharge that onus of proof, that there was a clear agreement at the time, then it would be inappropriate for the Commission to step in and to vary an agreement if they can't determine what was intended by the parties at the time and what the agreement should be varied to read.
PN646
That at the time an agreement was made, that if the two parties believed they were agreeing to something and that something has changed or is capable of being changed down the track, I think it could potentially open a Pandora's Box of cases where business needs have changed, for example, and companies come back, or for that matter, unions come back to the Commission and ask for the terms of the agreement to be varied based on changes that are outside the control of both parties, or probably more specifically, were outside of the contemplation of both parties at the time that the agreement was made.
PN647
That, I think, is precisely the case in Codelfa, which is a leading case regarding interpretation of awards, where both parties made an agreement and in fact events outside of their control varied the effect of that agreement and as a result, one party sought to vary the terms of the agreement, effectively, or for the court in that instance to find that the terms of the agreement meant something different to what was agreed to at the time. I think the court was very wary at that stage, as should this Commission be, to actually make changes to an agreement once the words have been agreed by the parties, and only in, we would suggest, an extreme case should the Commission take such action.
PN648
By extreme case, I mean a case where it is clearly obvious to the Commission what the intentions were of the parties at the time.
PN649
THE DEPUTY PRESIDENT: Of course, the difficulty with that is that the Commission's power to do that is only enlivened where it's
already found there is an ambiguity or an uncertainty, which not always, but generally speaking, would be where there was no objectively
determined intent declared. Now, I accept there will be occasions where the intention is strictly not reflected into the agreement,
but putting that aside - because generally speaking, those matters don't come here by way of dispute - but in most circumstances,
there is, because you found an ambiguity or uncertainty, at the very least it's not clear what the objectively determined intent
of the parties was as reflected in the agreement.
If the section has any work to do, there must be occasions where the Commission will be persuaded, notwithstanding that lack of
common intent, to say well look, it's appropriate to remove the ambiguity or uncertainty, which is what the provision of the Act
says.
PN650
MR BLAIRS: My, albeit the SDAs assertion with regard to that, is that the ambiguity refers more to the fact that there could be two arguments for a particular turn of phrase or clause, but the role of the Commission is to then determine what was intended by that clause at the time. So while, yes, I agree if there is an ambiguity, then that obviously does enliven the Commission and it probably wouldn't be here if there wasn't an ambiguity, but I wouldn't agree that just because there is an ambiguity that is being raised now in the words, that doesn't mean that that ambiguity existed at the time that the agreement was made.
PN651
And that there could have been a clearly-understood position by both parties at that point in time, but only over time has the ambiguity arisen, and we would assert that that would be the case in this particular matter.
PN652
THE DEPUTY PRESIDENT: So that's a matter going to discretion?
PN653
MR BLAIRS: That's correct, and that's where the Commission should look at exercising its discretion. As I mentioned in my opening statements, there are two steps to the process here where the Commission should determine the objectively ascertainable mutual intentions of the parties, but should then also turn its mind to whether it is appropriate or otherwise to actually exercise its discretion to vary the agreement, and that the discretion then is where it would come in to effect, where there was at the time an agreement that this was the case and now there is no agreement, the Commission should be determining if that discretion should be exercised at this point in time.
PN654
Now, perhaps I will turn now to the SDAs outline of submissions and highlight a few points that we have made in the submissions that we understand that the Commission has now determined that there is an ambiguity and that that has previously been discussed and that the Commission's appropriate next step is to turn its mind to if it can determine what were the mutual intentions of the party at that particular point in time that the agreement was made. Now, how the Commission should do that was considered in a decision of the Full Bench on 9 May 2002, the decision of Tenex Defence Systems, Certified Agreement.
PN655
In that case, it was determined that once an ambiguity or uncertainty is identified:
PN656
It is now a matter of discretion as to whether or not the agreement should be varied to remove the ambiguity or uncertainty. In exercising such discretion, the Commission is to have regard to the mutual intention of the parties at the time the agreement was made.
PN657
The Commission also refers to the Linfox Transport decision at paragraph 55:
PN658
Were the Commission to be faced with an exercise of its discretion and to adopt either the applicant's primary or its alternative variation proposals would be to, in my view, not remove an ambiguity or uncertainty, but to instil something that was not inherent into the agreement when it was made.
PN659
So the Commission in that particular decision, the Tenex decision, once again warns against inserting clauses or words into the agreement that were not agreed to by both parties at the time the agreement was made. Now, another case, or I suggest a most recent case from the Full Bench that I could find on this matter, was Telstra v CPSU case, PR954989. It was handed down in Melbourne in January of this year. In this case, the Full Bench actually went into some detail in determining or outlining what the Commission should take into consideration in trying to, or attempting to ascertain the mutual intention of the parties at the time the agreement was made.
PN660
The Commission in this regard actually considers the previous cases on this matter from contractual law and from outside the Commission, being the cases of Codelfa and also of BP Australia v Nyran. The Commission, at paragraph 46, summarised the principles relevant to ascertaining the mutual intention of the parties and actually suggests that - have you got a copy of that decision?
PN661
THE DEPUTY PRESIDENT: No, I don't.
PN662
MR BLAIRS: I can provide the Commission with a copy, if that helps?
PN663
THE DEPUTY PRESIDENT: Thank you.
PN664
MR BLAIRS: It's on page 11.
PN665
THE DEPUTY PRESIDENT: Good. Thank you. Page 11?
PN666
MR BLAIRS: Well, paragraph 46 is on page 10, and it talks at first regarding the establishment of the ambiguity and that:
PN667
If the certified agreement has a plain meaning, evidence of surrounding circumstances will not be admissible.
PN668
We would assert in this matter that an ambiguity has been found and that therefore the evidence of surrounding circumstances would be admissible, which is backed up by the next statement:
PN669
If the language of the certified agreement is ambiguous or susceptible of more than one meaning, evidence of surrounding ...(reads)... in common contemplation and consistent and common assumption.
PN670
Now, we would assert that a lot of the evidence that has been put forward today that has been questioned on the grounds of relevance regarding previous negotiations and especially the evidence put forward by Mr Berryman regarding his understanding of the voluntary or otherwise nature of work on public holidays would be very relevant under these particular headings. That the background knowledge of Mr Berryman would suggest that at the time he was in charge of setting rosters and specifically setting the rosters that employees would work on public holidays, when he was acting on behalf of the company in that role, it was his understanding that he could not compel employees to work, and that that understanding spanned a period of a number of years, up until 1997.
PN671
As recently as 1997, his understanding of the wording of the particular clause in the EBA was that he could not compel employees to work. To that extent, we assert that Mr Berryman's evidence is extremely relevant to this particular case. There was some suggestion made by my learned friend that the evidence of one particular party or manager could not be taken as the evidence of the company, and I would say that to an extent that is true, but the company, although is a legal entity could not appear here and give evidence of itself, an evidence of the company's intentions has to be given by its managers and representatives.
PN672
At that time, Mr Berryman was the manager of that particular warehouse and his assertions were that at that time, his understanding and therefore the understanding of the company was that he could not compel employees to work. Now, in terms of whether this forms a custom and practice, which is another point which was raised by my learned friend, which is that there was no evidence of custom and practice, that we would assert that there is clear evidence that the custom and practice in this workplace was that work on public holidays was voluntary, and to say anything otherwise, I think there is no grounding of.
PN673
That there were situations, as was raised by Mr Ogden, where the company did attempt to compel employees to work and determined that, no, that that was incorrect, that they could not in fact compel employees to work. Now, that is evidence, we would assert, of a belief held by the company at a point in time in the past. So, given that we would assert the company has at least, at some stage in the past, believed that it could not compel employees to work as was evidenced by Mr Berryman and Mr Ogden, that these facts, we would assume, would be very relevant and almost to the extent of so notorious that they would be presumed.
PN674
That is a very relevant consideration for the Commission to have in this matter. Now, I would agree, and I think all of the evidence has pointed towards the fact that in the 2002 negotiations, that neither party particularly turned their mind to the particular question of what those words meant and it is the assertion of the SDA that by not turning their minds to that particular intent, it can be assumed by the Commission that both parties intended the previous operation to continue unchanged.
PN675
Now, we would assert that the reasons for that would be that there were numerous changes, and I think the statement of Mr Holden actually attached a summary document produced by the SDA which outlined the changes that were intended to be made, so the party clearly intended certain issues and raised certain issues which it intended to act differently in the future. However, public holidays was not one of those such issues. So we assert that the Commission, from that, can draw the conclusion that both parties, or neither party, intended the current operation to be varied.
PN676
If there was an intention for the current operation to be varied, then it would have been turned to by one party or the other. Now, there was also evidence given by Mr Holden relating to the fact that this was an issue, or that the lack of employees was potentially an issue, at the time the negotiations took place. Now, in regards to that, we would assert that if that was in fact the case, it would be highly unusual for the company not to have raised that as an issue at that time. That evidence was, I think, directly at odds with the evidence of Mr Tzimokas, which was that he believed that there wasn't difficulties in the past, but that he envisaged there may be difficulties in the future.
PN677
I don't know how much the Commission can draw into any of that evidence because I think it clearly contradicted itself. But that said, the evidence of Mr Holden was that it wasn't raised at that particular point in time and that the Commission can assume therefore that neither party wished the operation of that particular clause to be varied. Now, we would assert that in terms of determining the mutual subjective intention of the parties, that shows some mutuality in the intentions of the parties, in that neither party raised the issue. Now, it is also a relevant consideration, we would believe, that - and I don't think my learned friend got it entirely accurate when he stated that public holidays, or work on public holidays, was more expensive.
PN678
The assertions that we put forward and I think were backed up by Mr Holden, was that work on public holidays was in fact less expensive for the company in terms of actual dollar figures for a per employee or per head, or on a per head basis. Now, he stated that there were other logistics that had to be taken into consideration, and while we accept that this is only part of the picture and that - I mean, no evidence has been put forward regarding how it would affect stores, it is clearly obvious from the agreement and from Mr Holden's statements, that there is at least some cost saving to the company to have employees work on public holidays as opposed to working overtime on a Saturday or a Sunday.
PN679
THE DEPUTY PRESIDENT: It depends whether employees that are being used on the public holidays were otherwise entitled to be paid for the public holiday not worked. I think that may be the difference between the positions that you have put - - -
PN680
MR BLAIRS: That is correct, and the situation occurs where an employee is rostered to work on a public holiday and then does in fact - or their normal roster would be to work on that public holiday, they would be paid if they didn't work, at their normal day's pay. However, the company has compelled them or requested them to come in and work, or required them to come in and work, and they have come into work. The extra cost to the company is time and a half of their wages, whereas the extra cost to such an employee who wouldn't be rostered to work on a Saturday of that week, would be paid at time and a half only for the first 2 hours, I believe, and then double time after that.
PN681
So given that there is some cost saving to the company in terms of rostering certain employees, if not all employees, there would be certainly some employees that would fall into that category. It would be very unusual, given once again the evidence of Mr Holden and Mr Tzimokas, that the company would always generally operate at the lowest cost that it could operate at, then it would be extremely unusual that they would, out of the goodness and kindness of their hearts, however choose not to exercise the compulsion or the right they had to compel employees to work, if it was costing them money to do so.
PN682
We would suggest that that previous behaviour would certainly back up the view, that we believe that this was the objective belief or mutual belief of Woolworths at the time, or previous to this agreement, was that they couldn't, because if they believed that they could compel employees to work, that would be at odds with the statements put forward by Mr Holden, that he would always, or that the company would always, do things the most cost-effective way possible. So we would certainly assert that that fact alone is some evidence that that was also the view held by Woolworths, that they could not in fact compel employees to work.
PN683
Now, in terms of the Commission's option, if it cannot objectively determine the intentions of the parties at the time the agreement was made, if it finds that the two parties were effectively at cross-purposes and one party had agreed to X, the other party agreed to Y and that neither party had actually agreed that a certain interpretation of that particular clause - that the appropriate step for the Commission to take in that instance would not be to vary the agreement, but would be to direct the parties to clarify the clause through the EBA or upcoming EBA negotiations.
PN684
Now, that approach was adopted by the Commission in the case of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Nestlé, PR940046. The Commission actually, at paragraph 68, determined in the circumstances of that particular case:
PN685
The appropriate way to rectify the problem is to reach agreement on how the Nestlé Confectionery Framework Enterprise Agreement should be varied, or to ensure that the next agreement, which is currently being negotiated, does not replicate a provision with which one party now finds it no longer agrees.
PN686
So in that situation, the Commission has determined that there are negations ongoing, and that the appropriate action would be to actually find what the parties do agree to. Now, I recognise the potential put forward by my learned friend, that there is no guarantee that the negotiations would conclude, but similarly, I would suggest there is no evidence from the past that these negotiations wouldn't conclude and I think to the contrary, that there's been numerous agreements struck between the parties over the years and I think that would more evidence the fact that, in all likelihood, an agreement would be reached.
PN687
Now, it's also important I think for the Commission to have some consideration to, is what it should be considering is the views of the party at the time that the agreement was reached. To that extent, I think the evidence put forward by Mr Tzimokas is possibly or probably of very little assistance to the Commission. He was not at the negotiations at that particular point in time. He is a person who has come into the company since those negotiations took place and has taken what has appeared to be a different view than the company had taken previously in regards to the interpretation of that clause.
PN688
We would assert that the fact that Mr Tzimokas has a specific view on how the clause should operate is probably of very little assistance to the Commission in determining what did the parties who actually sat down at the negotiating table intend when they put that clause into the agreement. I think the Commission should consider that, in considering how much weight should be applied to specific statements, or indeed, witnesses. There was also considerable evidence put forward by both Mr Holden and Mr Tzimokas that there has been an increasing business, or increase in the amount of output.
PN689
While that, once again, was not consistent between the two witnesses as to the extent of the increase in trade, ranging between, I think, 4 to 5 per cent, up to a rough figure of 30 per cent of increased trade, that what was evident from both parties is that the business is growing and it has been growing and that there is nothing specific that either party could point to that was different from the usual growth of the business. We do not think it is appropriate, firstly, for the Commission to consider a change in the business needs of the business, and I think more than anything, that supports an argument that this case has been put forward on the basis that they would like to vary what was agreed to at that particular point in time the agreement was made.
PN690
But also, that there's no evidence that the growth of the business is abnormal and wasn't within the contemplation of the parties at the time that the agreement took place. I mean, parties make enterprise agreements with the knowledge that they're operating for 3 years and will make assumptions as to what their demands will be over those next 3 years, and would surely negotiate on that basis, and there was no evidence that anything abnormal or anything that was not within the reasonable contemplation of the parties at the time has occurred.
PN691
THE DEPUTY PRESIDENT: Well, I would need to consider the evidence about the Sunday trading.
PN692
MR BLAIRS: That would be one possible variation, but I think to say that that was not at least within the contemplation of the parties that that might occur in the next period of time I think would be probably negligence on behalf of Woolworths, that I would think they wouldn't be guilty of. I think Woolworths said it was well within their contemplation that that might happen in the future, or in the very near future.
PN693
THE DEPUTY PRESIDENT: They have been lobbying for it for 30 years, probably. But the SDA have been lobbying against it for 50, if not longer.
PN694
MR BLAIRS: Now, we would also highlight that once again the Commission is not bound by the strict application put in front of it, but should appropriately turn its mind to what the evidence put before it today has shown the intention of the parties was at the time the agreement was made, and if the Commission is mindful that there was clear intention at that point in time, can either draft words of its own word; I would understand could ask the parties to draft words to reflect the particular point or meaning or could, alternatively, state that no words or no changes would be appropriate, and that that is entirely at the discretion of the Commission.
PN695
We would assert that in terms of the Commission having those three options available to it, that the Commission has an option of either adopting or - well, adopting the position as put forward by Woolworths in this matter, adopting the position as put forward by SDA in this matter, if it determines that either the SDAs assertions or Woolworths assertions were correct, or it could put no option forward, or put forward the finding that no change has been made. Now, that would be appropriate if the parties were effectively at cross-purposes at the time that the agreement was made.
PN696
We would assert that the evidence here today, at the very least, shows that the intentions of the SDA at the time that this specific agreement was made was that the agreement, or that particular clause and the operation of that clause as a whole, meant that work on public holidays for Woolworths employees at the Gepps Cross warehouse was voluntary, and that they had very good reason to believe that, as that had been the case over the past, I think, 40 years, is as far back as Mr Berryman's evidence went, and that there had been no serious attack on that belief over the past 40 years.
PN697
So at the very least, we would assert that the Commission should find that that is the intention of at least one of the parties. Now, we would assert that the Commission's task here today is to determine if Woolworths had a genuinely-held belief at that particular point in time that they could compel employees to work on public holidays. If that is the case and if the Commission finds that that is the case, we would assert that the best the Commission could do was determine that the parties were at cross-purposes at the time that the agreement was made, and to deem that it's not appropriate for the Commission to vary the agreement as no mutual intentions can be ascertained by the Commission.
PN698
The other alternative left to the Commission, we would assert, would be they find, yes, at the time based on the evidence in front of the Commission, on the balance of probabilities, Woolworths did probably believe they could not compel employees to work, and the evidence in support of that would be the evidence put forward by Mr Berryman, and also the evidence put forward by Mr Holden and Mr Tzimokas, that they would take the path of least cost, as it were, over the path of least resistance, and that they have not done that in the past and up until, I think, Easter 2004, had chosen not to avail themselves of that option.
PN699
So if the Commission found that that was in fact the case, then the appropriate action for the Commission would be to remove the ambiguity by finding in favour of the SDA in this particular matter, and finding that the work is in fact inherently voluntary in the words of the agreement, or drafting or requesting the parties draft words that does in fact spell that out in a clearer fashion. If there no more questions, your Honour, that is the case for the SDA.
PN700
THE DEPUTY PRESIDENT: Thank you, Mr Blairs.
PN701
MR MANUEL: Very briefly, your Honour.
PN702
THE DEPUTY PRESIDENT: Yes.
PN703
MR MANUEL: My learned friend kept referring to the costs. I have to say I don't think either the evidence of Mr Holden or the actual certified agreement supports the motion that public holidays is cheaper than some other notion within the agreement. We suggest that public holidays are the most expensive, and in fact, the evidence of Mr Holden was, despite that, there were logistical issues which were required for him to organise work on a public holiday, in any event. The decision in Telstra does talk about mutual intention, but it also specifically recognises that there are other considerations. Unfortunately, it doesn't tell anyone what they are because it ascertained it was able to deal with it without getting there.
PN704
Paragraphs 47 and 48, basically what they say is, "Look, mutual intention is a relevant consideration", and if you establish mutual intention, it would be a rare thing to then have another consideration override it. But of course, in this case, we say there isn't a mutual intention to be ascertained so Telstra is not particularly helpful in that regard. In terms of the one event that's relied upon in 1987, firstly, we'd note that that is prior to the current legislative structure, in fact, two back. It's prior to certified agreements. There's very limited evidence put before you as to the circumstances. For instance, it's not even apparent whether it's direct evidence. It's not apparent what the basis of the agreement is.
PN705
For instance, it could be an industrial rather than a legal agreement, and all that needs to be done is to compare the industrial instrument at that time with the current industrial instrument to see that they have absolutely nothing in common. In particular, clause 15 is fundamentally different to clause 40 of the current agreement. May it please the Commission.
PN706
THE DEPUTY PRESIDENT: Thank you. Yes, gentlemen, I will reserve a decision in this matter and give it to you in writing at the earliest opportunity, and I should also indicate that I found the presentation of both parties to be useful.
<ADJOURNED INDEFINITELY [1.10PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
KONSTANTINOS TZIMOKAS, SWORN PN185
EXAMINATION-IN-CHIEF BY MR MANUEL PN185
EXHIBIT #A2 STATEMENT OF K TZIMOKAS PN197
CROSS-EXAMINATION BY MR BLAIRS PN199
EXHIBIT #R1 EXPRESSION OF INTEREST DOCUMENT PN209
THE WITNESS WITHDREW PN257
WAYNE ANTHONY HOLDEN, SWORN PN259
EXAMINATION-IN-CHIEF BY MR MANUEL PN259
EXHIBIT #A3 STATEMENT OF W A HOLDEN PN268
CROSS-EXAMINATION BY MR BLAIRS PN270
THE WITNESS WITHDREW PN319
EXHIBIT #R2 STATEMENT OF D E FARRELL PN348
ROGER ALLAN NICHOLLS, SWORN PN349
EXAMINATION-IN-CHIEF BY MR BLAIRS PN349
EXHIBIT #R3 STATEMENT OF R A NICHOLLS PN356
CROSS-EXAMINATION BY MR MANUEL PN358
RE-EXAMINATION BY MR BLAIRS PN393
THE WITNESS WITHDREW PN399
RAYMOND WAYNE OGDEN, SWORN PN402
EXAMINATION-IN-CHIEF BY MR BLAIRS PN402
EXHIBIT #R4 STATEMENT OF R W OGDEN PN417
CROSS-EXAMINATION BY MR MANUEL PN436
THE WITNESS WITHDREW PN507
CHRISTOPHER HENRY MCGRATH, SWORN PN508
EXAMINATION-IN-CHIEF BY MR BLAIRS PN508
EXHIBIT #R5 STATEMENT OF C H MCGRATH PN514
CROSS-EXAMINATION BY MR MANUEL PN516
RE-EXAMINATION BY MR BLAIRS PN539
THE WITNESS WITHDREW PN545
JEFF JAMES BERRYMAN, SWORN PN545
EXAMINATION-IN-CHIEF BY MR BLAIRS PN545
EXHIBIT #R6 STATEMENT OF J J BERRYMAN PN550
THE WITNESS WITHDREW PN562
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