C2005/3028, Transcript of Proceedings [2005] AIRCTrans 1510 (12 July 2005)

TRANSCRIPT OF PROCEEDINGS

---


Workplace Relations Act 1996 12089-1

COMMISSIONER RICHARDS

C2005/3028

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
AND
EDI RAIL PTY LTD THE AUSTRALIAN WORKERS' UNION COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION TRANSPORT WORKERS' UNION OF AUSTRALIA
s.170LW - Application for settlement of dispute (certification of agreement)
(C2005/3028)

BRISBANE

1.08PM, FRIDAY, 01 JULY 2005

Continued from 30/6/2005

PN720

THE COMMISSIONER: Good afternoon, everyone. Please take a seat. There are no changes in appearances? Any housekeeping matters?

PN721

MR MOORHEAD: Commissioner, before you entered the room, there was some discussion between the parties as to the cross-examination of respondent witnesses. As I understand, there was a general agreement that the four unions would be simply treated in a similar position in terms of cross, that they would all be entitled to cross-examination. That's the extent to examine those witnesses.

PN722

THE COMMISSIONER: Mr Murdoch, do you have any difficulty with that?

PN723

MR MURDOCH: No, sir.

PN724

THE COMMISSIONER: Good. Thanks very much. We're missing Mr Stein at the moment, are we? We will proceed regardless. Mr Moorhead?

PN725

MR MOORHEAD: Thank you, Commissioner. We would call Mr Tony Robinson.

<TONY IAN ROBINSON, SWORN [1.10PM]
<EXAMINATION-IN-CHIEF BY MR MOORHEAD

PN726

MR MOORHEAD: Can you state your full name for the record, please?---Tony Ian Robinson.

PN727

What's your address?---(Address supplied).

PN728

You're employed by EDI Rail Pty Ltd as a boilermaker?---That's correct.

PN729

Have you made a statement in these proceedings?---Yes, I have.

PN730

Can I hand the witness this document?

PN731

Is that a copy of the statement you have made?---Yes, it is.

PN732

At paragraph 21 of the statement, you mention a copy of a letter?---Yes.

PN733

Can you have a look at that document? Is that the letter that you referred to in paragraph 21 of your statement?---Yes, it is.

PN734

Are the contents of that statement true and correct to the best of your knowledge?
---Yes.

PN735

Mr Robinson, Mr Martin in his evidence has said that in respect of the afternoon shift on Thursday, 12 May, he says:

PN736

I waited to see what actions the employee would take. They left our part of the plant and went into the smoko room. I waited to see whether they would go home. I went home at about 5.30 pm, but I understand that some employees remained at work that afternoon and continued to engage in rolling stoppages throughout the afternoon shift.

PN737

Did you talk to employees on the afternoon shift?---Yes.

PN738

What happened in those conversations?

PN739

MR MURDOCH: Well, I object to this unless we're told who the conversations were with.

PN740

THE COMMISSIONER: Well, perhaps some specificity is called for?

**** TONY IAN ROBINSON XN MR MOORHEAD
PN741

MR MOORHEAD: On Thursday, 12 May, you attended a meeting with management about the end of shift?---That's correct.

PN742

What happened after that?---After that, we - after the meeting was finished, I then made a phone call to Rohan Webb, organiser. We discussed what had taken place in the meeting. We then approached management after that and asked for their position to be put in writing. After that, we - I then proceeded to go into the works and discuss EDIs position with the afternoon shift.

PN743

So who was at that meeting?---Who was at that meeting? All employees on afternoon shift.

PN744

What was the decision of that meeting?---The decision of that meeting was all employees would stay at work and continue with the rolling stoppages as per the day shift.

PN745

Are you aware of any employees leaving the workplace?---No.

PN746

Mr Mearing, in his statement, said that he was told that employees were clocking on for work, but not booking onto particular jobs on Thursday, 12 May. What is your understanding of what happened?---I can't comment for everyone, but the employees that I observed were clocking off and clocking on and job starting.

PN747

How does the clocking on and clocking off process usually occur?---There's a time clock, or several time clocks, located in each shop. Employees have a card, similar with a - a card with a photo and a barcode on it. It's an electronic timing system. You clock on and with each job has a barcode and you register that on the clock as well.

PN748

What are those records used for?---For timekeeping, for hours booked for jobs.

PN749

At paragraph 44 of his statement, Mr Martin says that on the Friday employees gathered for a meeting at around 10.30 am. What do you say to that?---That was on the Friday?

PN750

Yes?---Yes, that - that time would be approximate, yes.

PN751

Mr Sabine, in his statement, says that employees were clocking on, but not clocking onto jobs. Why would employees not be clocking onto jobs?---I don't know. I don't know why.

**** TONY IAN ROBINSON XN MR MOORHEAD
PN752

Is that a regular occurrence?---Not to my knowledge.

PN753

At paragraph 20 of his statement, Mr Hazelwood says that employees were wandering all over the plant on Thursday, 12 May. What do you say to that?---I didn't observe any employees wandering, unless - the only time employees left their stations, to my knowledge, was to attend the stop work meetings.

PN754

Mr Hazelwood says that on the Friday morning, employees clocked on - employees arrived at 6 am, but little work, if any, was being performed. Is that correct?---After 6 am?

PN755

Yes?---I would say that employees went through their normal routine. They would come to work, they would clock on, they would find the router, they would job-start, they would unlock their tool cabinets, get their tools out and start work.

PN756

Now, Mr Martin in his evidence at paragraph 21 says:

PN757

When employees clock off a job and come back to it later, they need to conduct a safety check to ensure that it is safe to recommence work.

PN758

Is that correct?---I'm not sure what he means by that.

PN759

I have no further questions. Sorry, Commissioner, can I tender Mr Robinson's statement?

EXHIBIT #1 STATEMENT OF MR T I ROBINSON

PN760

MR BROANDA: No questions from the AWU, Commissioner.

PN761

MS INGLIS: No questions.

PN762

MR STEIN: I have no questions for the witness.

PN763

THE COMMISSIONER: Mr Murdoch?

<CROSS-EXAMINATION BY MR MURDOCH [1.22PM]

PN764

MR MURDOCH: Mr Robinson, your place of employment is in the fabrication shop, isn't it?---Yes.

PN765

Whereabouts in the works is the fabrication shop located?---It's located towards the corner of Gowarver and Alice Streets.

**** TONY IAN ROBINSON XXN MR MURDOCH
PN766

Do you know an area called "the bottom end" as applied to the geography of that sprawling EDI site at Maryborough?---The bottom end?

PN767

Yes?---I would say the bottom end would be referred to that - the corner which I just mentioned.

PN768

Where were the meetings held during the Thursday and the Friday, 12 and 13 May?---The stop work meetings?

PN769

Yes?---Some were held - some were held in bay 9, others were held in individual shops.

PN770

I wonder if you could take me through and tell me which meetings were held in bay 9, to start with?---On which day?

PN771

Well, we will start with the 12th?---The 12th? I believe the first meeting.

PN772

Starting at?---7.15.

PN773

Yes, 7.15, bay 9? Okay. Go on, please?---After that, I believe to my knowledge, that most other meetings were held in the individual shops.

PN774

Well, your use of the word "most" suggests that not all were held in the individual shops. Which ones weren't held in the individual shops?---I'm unsure.

PN775

Were you at the Maryborough works on Thursday, the 12th?---Yes.

PN776

What time did you get there that day?---Approximately 10 minutes before starting time.

PN777

About 10 to 7; I see. And what did you do when you got there?---I clocked on, I went and put my lunch and morning tea in the lunchroom, I sat down and waited until it was time to commence work and then I went through my normal procedure, every morning of commencing work.

PN778

Well, specifically, what did you do that morning?---To the best of my knowledge, I clocked on, I would have done a job start and commenced work.

PN779

All right. What time did you commence work?---Unsure.

**** TONY IAN ROBINSON XXN MR MURDOCH
PN780

At what time did you stop work?---I would be unsure of that. Are you referring to stop work or leave the site?

PN781

I am trying to take it through as the morning progresses, and as I understood, at 7.15 you attended a meeting in bay 9?---That's correct.

PN782

Well, what time did you finish work in the fabrication shop, if you'd started work in the fabrication shop, to enable you to be in bay 9 for the 7.15 meeting?---7.15.

PN783

So you say you were in the fabrication shop right up until 7.15?---That's correct.

PN784

Then you left and walked to bay 9, did you?---That's correct.

PN785

What happened when you got to bay 9?---I convened a meeting.

PN786

All right. How many attended?---To my knowledge, all employees on site.

PN787

A number, approximately?---Approximately 200.

PN788

Were there speakers at that meeting?---There were.

PN789

Who were they?---I know I spoke at that meeting.

PN790

Yes?---I'm unsure as to who else spoke.

PN791

Did we have two speakers or six speakers or 10 speakers?---I'm unsure as to who else spoke.

PN792

Did you take minutes or notes of that meeting?---No.

PN793

Was there any business conducted at that meeting?---As in?

PN794

Well, did you talk about the upcoming State or Origin or the races that weekend or - you must have spoken about something?---What was mentioned at the meeting was the - the reason we were there, which was for a stop work meeting.

PN795

But they knew that because they were there. I mean, it's like saying, we're here because we're here?---Mm.

**** TONY IAN ROBINSON XXN MR MURDOCH
PN796

Is that what you said? "We're here because we've stopped work and we've stopped work because we've stopped work"? I mean, surely there was something more than that?---Not to my knowledge.

PN797

Well, what time did that meeting conclude?---7.30.

PN798

All right. The employees then, at 7.30, set off to return to their various shops, is that right?---That's correct.

PN799

You'd agree with me that some of them were 200 metres and more from their shops?---Yes.

PN800

It was the case also, wasn't it, that even when your meetings broke up, employees milled around, talking, chatting?---Not to my knowledge, at 7.30, at the conclusion of the first meeting, no.

PN801

No? But didn't you speak to employees at the conclusion of that meeting?---I don't recall that.

PN802

What did you do at the conclusion of that meeting?---I went back to the time clock, I clocked on, I did a job start.

PN803

What time do you say that you spent in the fabrication shop doing real, productive work on Thursday, the 12th?---Most business on that day - most of my time on that day was taken up with union business.

PN804

I see. Did you spend any time in the fabrication shop, doing productive work that day?---Yes.

PN805

How much?---I don't recall.

PN806

I just hand up to you a sheet with the various clock-on times extracted, at the foot of the page, marked. Do you see at the far right-hand side there's a total there?
---Yes.

PN807

Can you just read the total out?---2.73.

PN808

Being the total of the times indicated for jobs that you clocked-off to that day?
---Well, I'm unsure of that. That's obviously what the printout says.

**** TONY IAN ROBINSON XXN MR MURDOCH
PN809

But you see, it is consistent with what you have said, that a substantial part of your time that day was spent doing union business? Isn't it?---Yes.

PN810

Thanks. Can I take you to your statement and to paragraph 9, please? That Wednesday stop work meeting, and when I say Wednesday, I mean 11 May 2005, when was that meeting held?---I would say approximately 1.45 pm.

PN811

Do you say that the meeting voted in favour of the stop work meetings lasting 15 minutes every hour, to commence at the start of shift the following day? Do you see that?---Yes.

PN812

Did someone move a motion to that effect, did they?---I believe so.

PN813

Someone seconded it?---Yes.

PN814

It was put to a vote, wasn't it?---That's correct.

PN815

A show of hands?---That's correct.

PN816

Are there minutes of that meeting?---No.

PN817

Why not?---Why?

PN818

Pardon?---Why? Why have minutes of the meeting?

PN819

Well, you know tell us what happened at the meeting, and I wonder how you're able to tell us, if there were no minutes kept?---I can remember.

PN820

I see. Okay. Do you remember who moved it?---No.

PN821

Who seconded it?---No.

PN822

I thought you could remember?---That's what I said.

PN823

What was the actual wording of the motion that was moved?---Unsure.

PN824

I thought you could remember?---That's what I said.

PN825

Wouldn't it be better if you kept minutes?

**** TONY IAN ROBINSON XXN MR MURDOCH
PN826

MR MOORHEAD: Commissioner, I am just concerned about the relevance of this questioning, about minute-taking at a meeting on 11 May.

PN827

THE COMMISSIONER: Well, we have had the like questions in relation to other witnesses as well.

PN828

MR MURDOCH: Yes. Thank you, Commissioner.

PN829

You see, in the paragraph, you go on and deal with protected action issues, don't you? You see the paragraph:

PN830

The stop work meetings planned were subject to protected industrial action notices filed by the AMWU and the other unions on site on behalf of their members at EDI.

PN831

So obviously that meeting on the Wednesday had a bearing on the protected action notices? Is that a fair summary of what you're saying in paragraph 9?
---The meeting on Wednesday was to - was to invoke the stoppages.

PN832

When you say - - -?---That was the result of the meeting.

PN833

When you say "invoke the stoppages", what do you mean by that?---To have a vote on whether to start the stoppages.

PN834

So that you were aware that there was protected action notice in covering the Thursday, the 12th, in relation to the 15-minute rolling stoppages?---I believe there was notices in - covering that action prior to the - prior to Wednesday.

PN835

Yes. Well, notice has to be given in advance, doesn't it? Is that what you're saying?---What I said was, I believe that there was noticing prior to that day.

PN836

Yes, that's what I thought you said?---Yes.

PN837

Okay. So, a vote was taken - what - that the rolling stoppages as notified not be called off?---Could you please repeat the question?

PN838

You see, notice had already been given to the company that on Thursday, the 12th, there were going to be these 15-minute rolling stoppages?---I'm unsure of that.

**** TONY IAN ROBINSON XXN MR MURDOCH
PN839

But isn't that what you say in your statement, paragraph 9?---It doesn't say there that the - the company had been given notice.

PN840

Well, what do you mean, then, when you say:

PN841

The stop work meetings planned were subject to protected industrial action notices filed by the AMWU.

PN842

?---That's - that's exactly what I mean. Protected industrial action notices filed by the AMWU.

PN843

But filed where?---Unsure.

PN844

You're the convenor for all the unions on the site, is that right? You were at the time?---That's correct.

PN845

Paragraph 10, do you see in the second sentence you say:

PN846

The membership had decided not to invoke the stop work meeting action until 12 May.

PN847

What do you mean by that?---Exactly what it says.

PN848

Well, had there been a series of meetings prior to 11 May, at which members had decided not to invoke stop work action that had been the subject of protected action notices?---There were meetings prior to that day, yes.

PN849

But you see, you say, "membership had decided". I am interested in when membership decided and how?---Where membership decided to what?

PN850

Well, paragraph 10, "The membership had decided not to invoke", when did they decide?---Through the course of the previous meetings.

PN851

Which were held when?---Prior to 12 May.

PN852

Well, there are dates in the calendar?---I'm aware of that.

PN853

You're the convenor, aren't you?---That's correct.

**** TONY IAN ROBINSON XXN MR MURDOCH
PN854

Well, can you tell us when these meetings were held?---No, I'm unsure of dates.

PN855

Don't you keep records?---No, I don't.

PN856

Why not?---I don't feel the need.

PN857

Now, you go on and say:

PN858

Prior to this, protected industrial action in the form of overtime bans, refusal to work on new shifts and refusal to work with new employees had been undertaken by union members at EDI.

PN859

Now, you say "had been undertaken", but in fact, that was still being undertaken as at 12 May, wasn't it?---That's correct.

PN860

It continued to be undertaken through 12 and 13 May, didn't it?---That's correct.

PN861

You have seen, I am sure, this document ACN1?---Yes, I have.

PN862

What part, if any, did you play in authoring that document?---I didn't play any part in that document.

PN863

Well, who did draw it up?---Not me.

PN864

You are the convenor, aren't you?---That's correct.

PN865

Did you play a part in circulating this document?---No, I didn't.

PN866

Is it the system that things just happen simultaneously without the involvement of the convenor?---It seems that way.

PN867

I see. Well, is it a mystery to you as to where this document came from, is it?
---As to who constructed the document, I don't know.

PN868

And as to who distributed the document?---I would be unsure of names. I did see - I did see the document on the day, but I didn't see anyone put it up.

PN869

When the meeting occurred on Wednesday, the 11th, and this is the one you refer to in paragraph 9 of your statement, it must have been obvious from the conclusion of that meeting that there were going to be rolling stoppages on 12 and 13 May, correct?---That's correct.

**** TONY IAN ROBINSON XXN MR MURDOCH
PN870

Well, did the meeting on the 11th determine when the stoppages would occur?
---Yes, I believe it did.

PN871

How was that done, given that it was a mass meeting?---The question was asked, there was discussion, and a decision was made.

PN872

What was the decision that was made?---The decision that was made was the stoppages would start quarter past the hour and cease at half past the hour.

PN873

How was that decision made by the meeting?---By a majority consensus.

PN874

Was there a motion put and a vote?---No.

PN875

Did anybody turn their attention to the actual notice that had been given to the company for rolling stoppages on 12 May?---Not to my knowledge.

PN876

Well, you do say in paragraph 9 that the stop work meetings planned were subject to protected industrial action notices. Were you given copies of those notices as they were served by the union on the company?---No, I wasn't.

PN877

Did you see the notices?---No.

PN878

Did you know what was in the notices?---Only from what I was told.

PN879

By whom?---By Rohan Webb.

PN880

Well, what did Rohan Webb tell you was in the protected action notice for Thursday, 12 May 2005?---He told me the protected action notice contained 15-minute stoppages every hour.

PN881

Did he ever tell you that it was every hour on the hour?---I don't believe so.

PN882

You know now, don't you, that the notices said every hour on the hour?---I still haven't seen that notice.

PN883

Even after all this time and all this controversy, you haven't seen the notice?
---That's correct.

PN884

But you talk about it in paragraph 9 - - -?---That's right.

**** TONY IAN ROBINSON XXN MR MURDOCH
PN885

- - - of your statement?---That's right.

PN886

What, you talked about it in paragraph 9 blind, never having seen it?---I talked about it in paragraph 9 from the information I was told.

PN887

I will ask you again, because it just seems so extraordinary. You were the convenor for this site and you say you were never given copies of the protected action notices that your union was serving on your employer?---That's correct.

PN888

Don't you have access to a fax machine?---Yes.

PN889

At work?---Yes.

PN890

There's a great deal of material that comes to you from the union office in Brisbane, isn't there?---No, I wouldn't say a great deal.

PN891

Well, there's regular material that comes via fax from the union office?---No.

PN892

No?---From time to time.

PN893

From time to time? Are you on email?---Privately, yes.

PN894

Does the union use your private email to send things to you?---No.

PN895

No? All right. Well, you were kept in the dark in relation to the terms of the protected action notice? That's what you're telling us?---No. That's not what I'm telling you.

PN896

Well, it was pretty significant, wasn't it, that the notice said the stoppages were to be every hour on the hour, and unfortunately, you've proceeded and made them 15 minutes past the hour, haven't you?---That's correct.

PN897

You know the consequence of that, don't you?---No, I don't.

PN898

You know the term, "Unprotected industrial action"?---Yes.

PN899

When you saw this schedule, this ACN1, was it posted up somewhere at the works, or did someone give you a copy of it?---No. There was one on a time clock.

**** TONY IAN ROBINSON XXN MR MURDOCH
PN900

A loose copy?---Yes, sticky-taped there, I believe.

PN901

Again, by a mysterious person unknown?---Person unknown to me.

PN902

But in any event, you approved of what it said?---That's correct.

PN903

I bring you to Friday, the 13th. What was your normal starting time on Friday, the 13th?---6 am.

PN904

What time did you get there on Friday, the 13th?---I would say approximately 10 minutes prior to start.

PN905

What time did you meet Rohan Webb?---Approximately 6 am.

PN906

Where did you meet him?---Front of the works.

PN907

And what did the two of you do then?---We discussed what had happened yesterday - the day previous.

PN908

Where did you do that?---In front of the works.

PN909

When you finished that discussion, what did you do then?---I believe we went to the first of the 15-minute stoppages.

PN910

Being the stoppage that commenced at what time?---6.15.

PN911

What did you do then?---We discussed further what had happened the day previous.

PN912

Yes. Where did you do that?---I'm unsure.

PN913

Who was a party to that discussion, besides you and Rohan Webb?---There would be other members of the EBA committee present.

PN914

Who were they?---I believe some of the people present would have been Darren Genrich.

PN915

And where did this happen, this discussion, between you, Rohan and the persons such as Darren Genrich?---In one of the lunchrooms, I believe.

**** TONY IAN ROBINSON XXN MR MURDOCH
PN916

What time did you finish the discussion in the lunchroom?---I'm unsure.

PN917

What did you do after that discussion?---I believe some time in the morning, we approached - we approached management for a meeting to discuss the goings-on of that day and the day previous.

PN918

Wasn't there a mass meeting during the course of the morning?---Yes, there was.

PN919

What time was that?---I'm unsure. There were several mass meetings that day.

PN920

Where were they conducted?---Bay 9.

PN921

So far as the first one, you're unsure when that was held?---It was am, I know it was am. The time, I'm unsure.

PN922

The second one? Do you know when that was held?---I believe it was approximately 11 o'clock.

PN923

Now, you said several mass meetings that day. Does that suggest there were more than two?---There were stop work meetings as well.

PN924

Stop work meetings as well? But in terms of the whole site, there were two?
---Yes.

PN925

So far as the first one went, even though you can't remember when it started, do you remember how long it went on for?---I would approximate half an hour.

PN926

After that meeting, did individual persons and small groups mill around conversing?---After that meeting, employees were told to return to work as normal.

PN927

Well, who told them that?---That was discussed at the mass meeting.

PN928

What did you do after the first meeting? The first mass meeting?---I would have continued discussions with Rohan Webb.

PN929

What happened - sorry. Where did you have those discussions with Rohan Webb?---I couldn't be sure.

**** TONY IAN ROBINSON XXN MR MURDOCH
PN930

Who else was party to them, if anyone?---Darren Genrich would have been party to those discussions.

PN931

How long did they go on for?---Unsure.

PN932

What happened next?---Some time during the course of the morning, we approached management for a meeting, and we did meet that morning.

PN933

How long did that go on for?---Unsure.

PN934

What happened after that meeting?---All employees were working as normal, I believe, during these meetings.

PN935

Well, I'm asking in relation to you. What did you do after that meeting with management?---I would have continued discussions.

PN936

All right. They were discussions with Darren and with Rohan Webb - - -?
---That's correct.

PN937

- - - and other - - -?---And other members of the EBA committee.

PN938

After those discussions, what did you do next?---Approximately 11 o'clock, we convened a mass meeting.

PN939

Would it be fair to say on the Friday, you did no work on the tools?---That'd be correct.

PN940

Would it be fair to say that during the Friday, from when you got to work until the 11 o'clock meeting, that Darren Genrich was with you the whole time?---I couldn't guarantee he was there the whole time, no.

PN941

Well, your recollection is that it was most of the time, if not all?---Most of the time, I would say.

PN942

In paragraph 31 of your statement, you talk about the 11 am mass meeting, and that of course is the mass meeting on Friday the 13th, isn't it?---That's correct.

PN943

Now, that meeting had been notified by the union in a letter dated 9 May 2005, hadn't it? I'll show you a copy to refresh your memory?---I'm familiar with some of the content of that document.

**** TONY IAN ROBINSON XXN MR MURDOCH
PN944

Well, what content of that document are you familiar with?---I'm familiar with the 11 am mass meeting and the - and the stoppage.

PN945

So you see the letter is dated the Monday of that week. Were you made aware of that notification on the Monday?---I couldn't answer with any certainty.

PN946

Well, can you say with certainty when you did know that the union had given notification of an 11 am Friday, 13th mass meeting?---No, I couldn't give a date.

PN947

Prior to going to that meeting on Wednesday the 12th, the mass meeting that called on the rolling stoppage - - -

PN948

MR MOORHEAD: Sorry, Commissioner, Wednesday the 12th is - I just wanted to clarify.

PN949

MR MURDOCH: Wednesday, the 11th, thank you.

PN950

Prior to going to that meeting on Wednesday the 11th, did you know that the union had notified that on Friday the 13th there was to be an 11 am stop work and then a cessation of work after that meeting?---Yes, I believe so.

PN951

So that it was always from the Wednesday on, the plan of you and your fellow unionists at EDI Maryborough, that Thursday there would be the rolling stoppages, Friday morning rolling stoppages, 11 am mass meeting on the Friday and then no work for the rest of the day?---No, that's not correct.

PN952

Well, what is correct?---There was 15-minute stoppages starting from Thursday morning and there would be a mass meeting held at 11 o'clock Friday. Employees would be notified of a notice for a stoppage and they would then take a vote as to whether to invoke that or not.

PN953

Well, that was the plan at least as early as Wednesday the 11th?---That's correct.

PN954

You knew as early as Wednesday the 11th that there were notices in as well for strike action on the Saturday and the Sunday?---No, I was unaware of that.

PN955

In paragraph 34, you say:

PN956

At no time did I refuse to do work asked of me during 12 May and 13 May 2005.

**** TONY IAN ROBINSON XXN MR MURDOCH
PN957

If we take 13 May, during the 13th, you weren't present at your workplace in the fabrication shop at all, were you?---During the course of the day, I would have been in that shop.

PN958

Yes, on the course of union duties?---That's correct.

PN959

But as a worker, with tools out ready to go, you weren't in the fabrication shop at all during that day, were you?---That's correct.

PN960

Where you say that at no time did you refuse to do work asked of you, so far as the 12th went, that only applied to the time that you were in the fabrication shop, didn't it?---No.

PN961

If you weren't in the fabrication shop, you couldn't be asked, could you?---I could be asked to perform duties by a supervisor if I wasn't in the shop.

PN962

That's a joke, isn't it, sir?---Is it?

PN963

What, the supervisors are supposed to chase you around the works, to ask you to do work?---That's not what I said.

PN964

The truth is that you can be asked to do work if you're there at your workplace in the fabrication shop, correct?---You can be, yes.

PN965

But if you're not there, there's no practical opportunity for a supervisor to ask you to do any work, is there?---No, I disagree.

PN966

I see. You disagree. So that while you and Darren and Rohan were in the tearoom discussing the strike, your supervisor could have come up from the fabrication shop and knocked on the door and said, "Look, Tony, I just want you slip back to the fabrication shop and do some work for me"? Is that what you're suggesting?---I'm not ruling it out.

PN967

I see. Okay. Do you see in paragraph 35 that you're claiming payment of wages for 10 hours of work carried out on 12 and 13 May 2005?---That's correct.

PN968

Can you break the 10 hours up for me, please, between the two days?---I believe there was 6 hours Thursday and 4, Friday.

**** TONY IAN ROBINSON XXN MR MURDOCH
PN969

Four on Friday? How do we get 4 hours of work carried out by you for EDI Rail on Friday the 13th?---Well, I was there at 6 o'clock in the morning and I ceased work at 11 o'clock.

PN970

Mr Robinson, I'm looking at your paragraph 35 and I'm seeing the phrase, "Work carried out", and I'm asking you where you say there's a basis for payment for 4 hours' work carried out by you on Friday the 13th?---Performing union duties.

PN971

Sorry? That's not work carried out for EDI Rail, is it?---It's never been challenged previously. I've always been allowed to carry out union duties.

PN972

But - - -?---With full payment.

PN973

- - - I thought you said in your statement that you had been frequently queried about the time you take for union duties?---No, I don't believe I said that.

PN974

Okay. Well, let me find it. What you're saying is that as a concession, you may from time to time be paid for when you're out on union business, is that right?
---What I'm saying is that I've performed union business in the past and I've always been paid.

PN975

As a concession? Silence? I'll go onto the next question. There's nothing in the EBA that you can point to that says that union business entitles you to be paid, is there?---That's correct.

PN976

Let me just cover it again, then, in relation to Friday the 13th. You say the 4 hours are from 6 am to 11 am, less the bare 15 minutes per hour, is that right?
---That's correct.

PN977

In respect to the 12th, what's the basis for the 6 hours?---The 8 hours less the 15-minute stoppages.

PN978

On the assumption that you worked on union business or otherwise for all the time other than the 15 minutes, is that correct?---That's correct.

PN979

Can you tell me what the purpose of the ban on overtime was in relation to that period, 12 and 13 May?---That was in support of our EBA claim.

PN980

Can you tell me, the ban on working with new labour in that period 12 and 13 May, what was the purpose of that?---That was in support of our EBA claim.

**** TONY IAN ROBINSON XXN MR MURDOCH
PN981

The ban on shifts that was prevailing on 12 and 13 May, what was the reason there?---It was also in support of our EBA claim.

PN982

I will just get you to go to paragraph 25 of your statement, please? You deal in there with - you say:

PN983

The only workers who were aware of EDIs refusal to pay us for work done on 12 May '05 were the afternoon shift workers. This was because EDI had communicated their position to us just before the day workers went home and after the dayshift workers had finished work.

PN984

Then you go on and say:

PN985

As a consequence, all day workers and dayshift workers presented for work as normal on Friday, 13 May.

PN986

?---That's correct.

PN987

But I thought you'd told us earlier that at the meeting on Wednesday the 11th, the decision had been taken to invoke the rolling stoppages from then on?---That's correct.

PN988

So wasn't the plan already in place for the day workers and the dayshift workers, that on Friday the 13th they were going to have more rolling stoppages?---That's correct.

PN989

Wasn't there also in place a notification to the company that there was going to be a mass meeting at 11 am, a stop work meeting?---Yes, I believe so.

PN990

And wasn't there also in place a notification that after that 11 am mass meeting, there was going to be a stoppage for the rest of the day?---Yes.

PN991

Well, how can you say that day workers and dayshift workers presented for work as normal on Friday the 13th, because they didn't, did they?---Yes, they did.

PN992

When they came to work on Friday the 13th, you and your co-workers brought various paraphernalia with you to set up tents, banners and a strike base, didn't you?---No.

**** TONY IAN ROBINSON XXN MR MURDOCH
PN993

Well, how was it that when workers attended the 11 am mass meeting, that they were able to produce tents, banners, the full kit, to set up a union base over the road from the works?---I don't believe seeing any of that at the 11 o'clock meeting.

PN994

Don't you? When did that go up?---My recollection, that didn't go up until the Monday, but I was absent from the works after Friday.

PN995

I see. Why was that?---I was away on union business.

PN996

Paid by the union?---Paid by the company. Well, actually, no. It wasn't paid by the company.

PN997

Paid by anyone?---Paid by no one.

PN998

How long were you away on union business?---A week.

PN999

Where was that?---Melbourne.

PN1000

I take you down to paragraph 30, please? Now, you say:

PN1001

Workers were working in accordance with the bans and limitations notified by Metalworkers Unions protected industrial action notices.

PN1002

Then you go on and you talk about the 15 minutes in every hour, but the other bans were in place as well, weren't they, the overtime, new labour, shiftwork bans were in place, too?---That's correct.

PN1003

The limitation is limitation on the amount of hours that the company was able to obtain in the form of work from employees in each hour of the working day, is that correct?---15-minute stoppages, that's correct.

PN1004

Well, the company was entitled to 60 minutes' work in each hour and the employees were limiting that to 45 minutes in each hour?---That's correct.

PN1005

Well, that is the limitation that you're speaking of there, isn't it?---That's correct.

PN1006

Nothing further, thank you.

<RE-EXAMINATION BY MR MOORHEAD [2.23PM]

PN1007

MR MOORHEAD: Mr Robinson, what does your role as a union convenor involve?---Several things. I get involved with most union matters, redundancies, consultation, EBAs.

**** TONY IAN ROBINSON RXN MR MOORHEAD
PN1008

Does that involve taking time away from the workplace?---It can do.

PN1009

Are you authorised to do those duties during working hours?---Yes.

PN1010

Are you paid to do those duties during working hours?---Yes.

PN1011

Who would you say, at the workplace, is authorised to undertake those duties, other than yourself?---Which duties in particular are you - - -

PN1012

The union duties on which you talk?---Usually there's - there's usually myself and Darren Genrich.

PN1013

What about for other unions?---Yes, and other union delegates as well that are involved with union matters.

PN1014

Are people who aren't union delegates entitled to - - -?---No, I don't believe so.

PN1015

You said in your evidence in answer to a question from Mr Murdoch that some employees are approximately 200 metres from bay 9. How many employees would be that distance away?---Approximately 40 or 50.

PN1016

Where are the other employees located?---Within the main section of the works.

PN1017

What part of the works are you talking about, in terms of 200 metres from bay 9?
---The railcar shop and the heavy rolling stock shop.

PN1018

Where are they located, in respect to the other areas of the workplace?---They're located away from the main body of the works.

PN1019

Can I just hand up a document to the witness? Sorry.

PN1020

Now, Mr Robinson, your clock-on times are shown in the bottom line of that table?---Mm.

PN1021

What is the total at the end of that line?---2.73.

PN1022

How is that 2.73 described?---I believe that's the billable time.

PN1023

Now, could you go through the times that you have clocked on and clocked off that day?---6.48 - - -

**** TONY IAN ROBINSON RXN MR MOORHEAD
PN1024

You have clocked on at 6.48?---Clocked on at 6.48; job start at 7.12; clock off, 7.15; clock on, 7.31; job start at 7.31; clock off at 8.16; clock on at 8.30; job start at 8.35; clock off at 9.15; clock on at 9.31; job start, 9.31; clock off at 10.15; clock on at 10.30; clock off at 11.16; clock on at 11.30; clock off at 12.15; clock on at 1301; clock off at 1315; clock on at 1329; job start at 1342; clock off at 1415; clock on at 1431; job start at 1448.

PN1025

So what are the other hours, other than the 2.73 billable hours?---That would have been on union matters.

PN1026

Where would you have clocked on or clocked off, or job started?---That could have been in several shops. The majority would have been the fabrication shop.

PN1027

Was your supervisor aware that you were absent from the shop?---Yes, I believe so.

PN1028

Who is your supervisor?---At that time it was Greg Buckingham.

PN1029

What did he say when you were absent from the shop?

PN1030

MR MURDOCH: Well, that is, with respect, "What did your supervisor say when you were absent"? He wouldn't have been there to hear what the supervisor said.

PN1031

MR MOORHEAD: Sorry, I take Mr Murdoch's point.

PN1032

What did Mr Buckingham say as you left the shop?

PN1033

MR MURDOCH: Well, it assumes that they had a conversation.

PN1034

THE COMMISSIONER: It does, and I think we're about to find out if there was one.

PN1035

MR MOORHEAD: I will go through that point.

PN1036

Did you have a conversation with Mr Buckingham as you left the fabrication shop?---Yes, I believe so.

PN1037

What did Mr Buckingham say?---I said to him that I was - I had union duties to perform and he said, "That's fine".

**** TONY IAN ROBINSON RXN MR MOORHEAD
PN1038

Mr Murdoch showed you a document entitled ACN1. Do you still have that document?---Yes, I do.

PN1039

In response to Mr Murdoch's question, you said it was posted - where was it posted?---I - I observed it on time clocks.

PN1040

Which time clocks?---I believe it was the majority of time clocks within the works.

PN1041

The clocking off and clocking on records that the company collates, how are they used?---I believe they're used for - for job tracking, monitoring hours on jobs and the hours of work that employees perform.

PN1042

How are they used to track the hours of work employees perform?---By the clocking on time and the clocking off time.

PN1043

How are those times collated for your pay records?---Electronically, I believe.

PN1044

Do supervisors use that information?---Yes, I believe so.

PN1045

How do they use that information?---They would use that information for recordkeeping of hours booked to jobs, and hours that employees are at work.

PN1046

How do they track the hours that employees are at work?---Through the issuing of validation sheets.

PN1047

How are validation sheets prepared?---I believe they come from the time office every day and are distributed to supervisors.

PN1048

What do the supervisors do with them?---The supervisors check those validation sheets to ensure that the right job numbers have been booked and the hours are right for each employee.

PN1049

Mr Murdoch asked you about the meetings deciding not to invoke rolling stoppages. In the negotiations for the certified agreement, how many negotiations have there been?---I've lost count; 20-plus.

PN1050

How many delegate meetings have there been?---Yes, several. Several.

**** TONY IAN ROBINSON RXN MR MOORHEAD
PN1051

How many site meetings have there been?---I would have to say 10-plus.

PN1052

Do you know which of those meetings considered any industrial action?---No.

PN1053

Mr Murdoch asked you where the 15-minute stop work meetings were held on the Thursday, and I believe you said that some were held in bay 9?---Yes.

PN1054

For those that weren't held in bay 9, where were they held?---They were held in individual shops.

PN1055

Were there places that people gathered?---yes.

PN1056

Where was that?---Those that were in the main body of the works gathered in the main roadway into the works. Those that weren't congregated at the back of the railcar shop.

PN1057

Sorry, who gathered at the railcar shop?---That would have been the railcar shop employees and the heavy rolling stock shop employees.

PN1058

How far are they from bay 9?---They would be approximately 200 metres.

PN1059

Do you chair mass meetings held on site?---Generally, yes.

PN1060

When do you take minutes of those meetings?---Very rarely.

PN1061

You said that on Thursday the 12th, you were conducting union business. What parts of the plant did you visit?---I would have been to the main office, I would have been to the - to the coppersmith shop, I believe to the railcar shop. I would have been to most parts of the works during that day.

PN1062

What did you observe when you went to the coppersmith shop?---I observed employees productively working.

PN1063

MR MURDOCH: Look, I object to this. That's unnamed employees said to be productively working. It's a pathetic attempt to drag themselves up by their bootstraps. If we can't have some names and times, the evidence shouldn't be led. I object to it.

PN1064

MR MOORHEAD: Commissioner, Mr Murdoch questioned Mr Robinson about whether employees were milling around. I'm happy to put to the witness whether he saw people milling around.

**** TONY IAN ROBINSON RXN MR MOORHEAD
PN1065

THE COMMISSIONER: Well, you can put that, but the evidence has the weight that it has.

PN1066

MR MOORHEAD: Mr Robinson, did you see employees milling around talking when you went to the coppersmiths shop?---No.

PN1067

What about the railcar shop?---No.

PN1068

And your fabrication shop?---No. Nothing out of - nothing out of the normal. There was obviously employees discussing work on jobs, but no. Nothing out of the ordinary.

PN1069

No further questions, Commissioner.

PN1070

MR BROANDA: Nothing, Commissioner.

PN1071

MS INGLIS: No questions, Commissioner.

PN1072

MR STEIN: No questions, Commissioner.

PN1073

THE COMMISSIONER: Thank you very much. That concludes the evidence?

PN1074

MR MOORHEAD: Yes, it does, Commissioner.

PN1075

THE COMMISSIONER: It is appropriate that we'll adjourn for 10 minutes.

PN1076

MR MOORHEAD: Might the witness be excused, Commissioner?

PN1077

THE COMMISSIONER: The witness is excused.

<THE WITNESS WITHDREW [2.41PM]

PN1078

MR MURDOCH: Sorry, Commissioner, I wonder if we could perhaps make that 15? For some of us, it's been a fairly long day and 15 means we could have a coffee break, that's all.

PN1079

THE COMMISSIONER: Yes, 3 o'clock.

PN1080

MR MURDOCH: Thank you.

<SHORT ADJOURNMENT [2.42PM]
<RESUMED [3.09PM]

PN1081

MR MURDOCH: I call Hadamby Charles Mearing.

<HADAMBY CHARLES MEARING, SWORN [3.09PM]
<EXAMINATION-IN-CHIEF BY MR MURDOCH

PN1082

MR MURDOCH: Mr Mearing you have with you a copy of your statement in this matter. Are the contents of the statement true and correct, to the best of your knowledge and belief?---Yes.

PN1083

There is one attachment to your statement, correct?---Yes.

PN1084

I tender the statement.

EXHIBIT #R1 STATEMENT AC MEARING
<CROSS-EXAMINATION BY MR MOORHEAD [3.10PM]

PN1085

MR MOORHEAD: Mr Mearing your statement has attached to it an exhibit ATN1?---That's correct..

PN1086

That was posted on time clocks during the plant on 12 May?---I can't answer that. It was handed to me by one of the managers, and found in the factory somewhere.

PN1087

Mr Mearing have employees refused to form any directions put to them?---I haven't given them any directions myself. There is a chain of command and you are going to have to ask that question of the appropriate manager.

PN1088

Who would the appropriate manager be?---The production manager.

PN1089

That is Mr Martin?---That's correct.

PN1090

In March there was a dispute on site about whether work was EDI Rail Work or EDI Services Work, do you remember that?---I remember there was a dispute, I don't remember the specific dates involved.

PN1091

Do you remember that employees were stood down for refusing to obey a direction of EDI Rail?---I recall two employees were stood down for refusing to obey a lawful order.

PN1092

So you are aware of the employer's right to stand down employees who are refusing to perform duties?---Yes, when given an instruction, yes.

PN1093

Employees were paid between 1 April and 11 May for the work they performed?
---Yes they were.

**** HADAMBY CHARLES MEARING XXN MR MOORHEAD
PN1094

What changed after 11 May?---After 11 May there was an escalation in industrial action, and due to the nature of the action and the effect of that we have gained legal advice on the matter.

PN1095

In your statement when you refer to the management team and EDI Rail who are you referring to?---Which paragraph is that?

PN1096

You have mentioned a number of occasions, at paragraph 13, paragraph 23. For example at par 13 who are you referring to?---Can I dig out the 13 if you don't mind. This would have been the local management team, being myself and the three people outside the door.

PN1097

Is that the same at paragraph 23?---Yes.

PN1098

Can you explain to the Commission the management structure at the Maryborough facility?---I am the facility manager. Our finance and admin manager reporting to me, a logistics manager and a production manager. Then there is a general manager to which I report. Same as my peer in Cardiff, and he reports to the CEO of the company.

PN1099

Who reports to the production manager?---A number of supervisors.

PN1100

How many supervisors are there?---We have currently got one vacancy. I will have to check whether it is six or seven, I am not certain.

PN1101

Who reports to the supervisors?---They have a number of leading hands and a number of workers reporting to them.

PN1102

What are the responsibilities of the supervisors?---Supervisors have responsibility across the whole business, but a supervisor deals with - look after safety, quality, production outgoods, and the control of employees in broad terms.

PN1103

Is it their job to allocate tasks to employees?---Well in the rail business often it is not necessary for a supervisor to give someone work. They could be engaged in a job which would go over a number of days or weeks and in this type of business we depend a lot on the training and the initiative of skilled tradesmen to almost work independently within the guidelines given by the company.

PN1104

Don't you use routers, job routers?---Yes.

**** HADAMBY CHARLES MEARING XXN MR MOORHEAD
PN1105

What are job routers?---A job router is basically a means for setting out the stations through which any work order would go, and it allows for people to record their time against specific operations so that the company can allocate costs and keep track of what work is done.

PN1106

So a job router would have a bar code and a drawing from which employees work?---That is the physical workings of it, yes.

PN1107

They are given to employees by supervisors and leading hands?---Sometimes they are just placed out on work stations for employees to pick up and work from. I mean they don't queue up and wait for the supervisor to give it to them.

PN1108

So what happens when an employee finishes a job, a router?---When he finishes it? Well it is left to their own discretion and checked afterwards. When they finish they are expected to clock off from a router, and clock onto the next thing. And if they haven't got work they should clock on to an indirect number.

PN1109

An indirect number is the non billable number generally?---What do you mean by non billable?

PN1110

There are some jobs that employees can clock onto that customers are charged for, and there is some that customers aren't charged for?---Yes, we generally refer to direct and indirect work orders.

PN1111

But employees are directed by supervisors though aren't they?---Generally, yes.

PN1112

Does Mr Martin, the production manager, tell supervisors what they need to do?
---Not in great lengths and in extremely specific details. He gives them priorities, he gives them due dates, he tracks progress with them and they have some discretion in making decisions themselves.

PN1113

So he provides broad guides to them on the direction of their work?---Broad guidance along a production plan.

PN1114

Because there is a production office as well isn't there, at the rail facility, that is responsible for preparing the job routers?---No we haven't got a production office. We have got a number of production planners who prepare the material.

PN1115

They produce the job routers?---Yes, they do the physical working on the ..... yes.

**** HADAMBY CHARLES MEARING XXN MR MOORHEAD
PN1116

Who do they provide them to?---They create job packets which are given to supervisors and leading hands.

PN1117

Mass meetings on the sites are common occurrences Mr Mearing?---Under normal circumstances no. But under the - during the EBA process there was a fair number.

PN1118

How many meetings do you estimate there were during the discussions for the certified agreement?---I can't answer that. I'll track that through direct hours in our monthly management report.

PN1119

You say at paragraph 23 of your statement that there was concern amongst the management team that employees were engaged in rolling stoppages?---Yes.

PN1120

But you had been told by that time that the employees were going to engage in rolling stoppages hadn't you?---No, I hadn't been told. I have received notices earlier but normally when - the relationship I have had with the employee representatives on site were such that they up to that point had told me when something would change. For instance, when the bans and limitations were imposed they told me in a meeting that there was - overtime was going to be banned and so forth. I wasn't told about this.

PN1121

Mr Hazelwood says that he was told by employees at approximately 10 past 6 that employees were engaging in 15 minute rolling stoppages. Didn't Mr Hazelwood tell you what he had heard?---You are going to have to ask Mr Hazelwood about that. If you go to my statement you will see that there was some confusion about what was happening, because it wasn't in accordance with the notices we have received and we haven't been notified by the local representative. So we didn't exactly know what was going on.

PN1122

So Mr Hazelwood didn't tell you what he had heard that morning?---I just need to go back to my statement. Just hang on a moment, if you don't mind? You are talking about Thursday the 11th?

PN1123

Yes on the Thursday morning?---If you go to paragraph 20 of my statement you will see that I have said there that I have been told that people have walked off the job on that morning, and that they have attended a mass meeting.

PN1124

That is the extent of your information from Mr Hazelwood?---That is what I have put in my statement. I didn't put in there what I couldn't recall.

**** HADAMBY CHARLES MEARING XXN MR MOORHEAD
PN1125

So you say, at paragraph 28, the situation of uncertainty existed until 12.30 pm?
---That's correct.

PN1126

What did you do once it became clear that the situation - of what was occurring?
---At 12.30, again I want to go back to what you have said. At 12.30 we met with the senior management team in a meeting, which had nothing to do with the industrial action. So we didn't exactly know by then what was going on. We had a management meeting, a monthly meeting, which is scheduled for every month, during which we discuss finance, safety, quality and so forth. So we have had that meeting on that day and if you go through the rest of my statement you will see that we only got clarity afterwards.

PN1127

So what time did you get clarity of what had occurred that day? Sorry, what was occurring?---We didn't become aware that there was disruptions at that particular time, and that people was walking off with regular intervals by that time. So we realised it wasn't just one or two meetings that was happening. It was a periodic occurrence. So what we did after that is we called a telephone conference with our management team in Sydney and also with our legal advisers, and we discussed the matter and we came to the conclusion that this was some form of industrial action.

PN1128

But you were aware before that time though that the stoppages were every hour at regular intervals?---We tracked it during the morning to see what was happening. Because if you read through my statement you will see that I have said that the guys had mass meetings during the duration of the negotiations. Now if they had a meeting and went off and had a follow up meeting it wouldn't have been totally unnatural.

PN1129

But you have had notices from the union that there would be 15 minute stoppages every hour. Then you saw a pattern where employees were taking 15 minute stoppages every hour but you didn't put the two together?---No I didn't, because it appeared to me, from a discussion with Mr Mal Sabine, he raised a concern with me, and to make sure of my facts. Mr Sabine reported to me that he did see some irregularities and basically I mean it wasn't strictly according with the 15 minutes, and it didn't make sense to me because I did recall that the notices sent to me was 15 minutes every hour on the hour, because it kind of rhymed so I did recall it. And this was not on the hour so I thought it could have been something else.

PN1130

So when in your mind it was clarified that it wasn't what was occurring what did you do, what was your response?---I got the delegates in to make sure that there was - definitely make sure from them that this was not something else. I asked them what was going on and I informed them that - when they said to me that they were engaged in action I said to them we were not going to pay them for the periods during which they were engaging in industrial action and to our assessment the whole day was affected.

**** HADAMBY CHARLES MEARING XXN MR MOORHEAD
PN1131

So you are saying that the whole day was industrial action?---Looking at the whole picture, yes.

PN1132

So if you were to produce those router reports there would be no jobs completed? There would be no clocking onto jobs during that day?---No, people did capture their time against some orders. However we need to cross reference those normally with work physically completed, and work physically started. And given the way in which some people did not clock on or off, or just forgot to clock off or given the total confusion with the way in which people clocked on we couldn't verify that. The supervisors couldn't reasonably go through the confirmation process and confirm that people have actually worked on jobs, because we couldn't verify it.

PN1133

So did you stand down employees?---No.

PN1134

What about lock them out, did you do that?---No we didn't do that.

PN1135

Did you tell the supervisors to issue directions to perform work during the
45 minutes?---No. We had this discussion at the end of that day.

PN1136

So what was your response to the afternoon shift?---For the afternoon shift?

PN1137

Yes?---I see that I didn't refer to that. It could have been discussed in the meeting with the delegates but I am not sure of that so I didn't include it in my statement. I am not going to guess.

PN1138

But what was the company's response in respect of the stoppages undertaken by the afternoon shift?---Well, in - - -

PN1139

MR MURDOCH: Can I just interrupt. Their responses suggested something that comes after the event. So the question, in fairness, should indicate precisely what period the witness is being asked about.

PN1140

THE COMMISSIONER: Yes, an easy enough annotation to the question.

PN1141

MR MOORHEAD: Mr Mearing, from your understanding did employees continue to conduct stoppages during the afternoon shift?---I will have to verify that.

**** HADAMBY CHARLES MEARING XXN MR MOORHEAD
PN1142

So you don't know?---I can find out. I will have to look at the specific time recordings. I am not going to guess.

PN1143

Did employees refuse to do duties after them, during the 45 minutes?

PN1144

MR MURDOCH: I object to that. It should be put in terms of which employees and which requests. Otherwise it is an unfair question.

PN1145

MR MOORHEAD: Mr Mearing are you aware of any employees refusing to do duties put to them by their supervisor?---When?

PN1146

For the period during 12 May between the 15 minutes stoppages?---No.

PN1147

You talk at paragraph 24 about the irregularities recorded by Mr Sabine. Isn't it an everyday occurrence that employees will clock on for work and forget to clock on particular jobs, or don't clock onto particular jobs?---Look it is possible that one or two people could do that. But in this case we found several people, much more than the one or two that would have happened under normal circumstances. We are all human and people do make mistakes, but in this case there was, from the examples that we have provided, there was a number of employees that did it in this way.

PN1148

But that is what the validation process is for isn't it? Supervisors ascertain after these time clock recordings are collated, to work out what times employees worked and to what jobs that work is assigned?---The purpose of the time confirmation process is that the supervisor firstly see if people were present at work, and they make sure if they say that they have put time to a specific order that they have actually worked on that order, and that progress was made during the day. For instance, it is important to know that if someone worked on non conforming material from a supplier that we reallocate that work to the supplier so that he can pay us for us rectifying defective materials.

PN1149

But sometimes those confirmation sheets can come back and have employees not clocked on, and the supervisors will allocate that to a job code though won't they?
---Now if someone is not clocked on they are not paid.

PN1150

What if someone forgets to clock on, are they paid?---If the supervisor knew that he was there and that he physically worked on a specific job then the supervisor would call the employee and discuss it with him and make the correction.

**** HADAMBY CHARLES MEARING XXN MR MOORHEAD
PN1151

Mr Mearing you can't tell from those clocking on and clocking off records whether employees were actually working during that time can you?---Well this is the way that we do our financial accounting. We have to rely on the integrity of the system that employees abide by, that supervisors check, and that it is fairly accurate.

PN1152

So you rely on supervisors verifying those clock records?---We rely both on employees to do it accurately and on supervisors to verify it.

PN1153

But just because an employee is not clocked on doesn't mean they are not working though does it?---Well if he is clocked on - if he is not clocked on he is not working in the way that the company expect him to work, and he should actually be called in and reprimanded if doing it on a regular basis.

PN1154

How many time clocks are there in the plant?---I will give you an approximate number because some of them get repaired. Some of them go out of order. We are talking correction to my information it is 22 to 24.

PN1155

Do you know how many time clocks there are in the fabrication shop?---You will have to get that information from Mr Martin.

PN1156

But you don't know?---No I don't know.

PN1157

At the meeting on Friday with Mr Webb and the consultative committee you told Mr Webb that you weren't standing down employees or locking them out?
---That's correct.

PN1158

So you weren't restricting - work by employees?---I what?

PN1159

You weren't restricting the performance of work by employees?---No. In fact I have said if people wanted to work they could work and the only thing I said we were not going to pay them if they were going to be engaging in industrial action.

PN1160

Mr Genrich and Mr Robinson have a role in the consultative committee in the workplace?---That's correct.

PN1161

But what does that role involve?---To be quite accurate, the consultative committee ceased to function in approximately September or October last year. We haven't had any meetings of the consultative committee since then.

**** HADAMBY CHARLES MEARING XXN MR MOORHEAD
PN1162

So they have been subsumed by certified agreement negotiations?---Basically, yes.

PN1163

Because the members of the consultative committee are who you negotiate an agreement with isn't it?---The previous joint union convenor, by the name of Tony Sutton, was the last person to represent the workers on the consultative committee. I know Mr Genrich was there, I can't recall if Mr Robinson was there.

PN1164

But those consultative committee members perform work outside of consultative committee meetings don't they, interviewing employees, discussing issues with them, discussion of certified agreement negotiations with employees?---The previous consultative committee basically consisted of union delegates, and the union delegates from time to time get permission to perform union duties.

PN1165

So they have to see their supervisors to get authorisation to perform union duties?
---Generally, yes.

PN1166

Those supervisors have the ability to authorise those persons to do union duties?
---Yes.

PN1167

Mr Genrich and Mr Robinson often authorised to perform union duties during working hours?---Yes. They have to clock on to a specific indirect work order number which says union duties, and it gets checked by the production manager. Because I do set him targets for indirect hours of the total workforce.

PN1168

So the indirect hours that are attributed to union duties are tracked by the supervisors, Mr Martin and yourself?---Mr Martin will look at the specifics.
I give him the overall target of approximately 15 per cent and I expect him to manage people so that that target is reached.

PN1169

At paragraph 60 of your statement you say:

PN1170

According to the information presented to me, little if any productive work was done during the day.

PN1171

This is in relation to Friday the 13th?---That's correct.

PN1172

What is the information you talk of there?---I haven't got my notes with me. I made some specific notes back at the workplace on the main jobs that we had, but I haven't got that with me.

**** HADAMBY CHARLES MEARING XXN MR MOORHEAD
PN1173

Was it from Mr Martin advising you of production schedules?---It would have been - I see that I didn't refer to any specific person. Normally it would be Mr Martin. It could also be Mr Hazelwood.

PN1174

You said that little if any productive work was done during the day but can I just read you something from Mr Martin's statement on the Friday. At paragraph 42 Mr Martin says:

PN1175

I attended work at my normal time at 6.30 am.

PN1176

At 43 Mr Martin says:

PN1177

Upon arrival I saw the employees heading down the bottom of the plant. I assumed they were going to attend a mass meeting.

PN1178

Then at 44 Mr Martin says:

PN1179

The employees continued to clock on for work but continued the rolling stoppages from the start of the shift to approximately 10.30 am. From 10.30 am until shift change the employees sat at the bottom of the plant.

PN1180

So when you say little if any productive work was done are you saying that they were all clocked on but didn't do any work?---That is not what I said. Mr Martin is the production manager and I ask him where work is up to, and I go by his judgment when he tells me that there was progress on work, or that there was no progress on work.

PN1181

So you are saying there that the production schedule was not as you had expected, or you would expect from an ordinary day?---Like I said, I have to get hold of the notes that I have made on that.

PN1182

Are you saying that employees weren't working?---Yes.

PN1183

So you say that during that morning employees were standing around not working?---I am saying during that day certain jobs must have started, certain job must have been completed. Some must have been completed up to a certain stage and that didn't happen. And as I have said I haven't got the specifics with me. I have got it written down in my note pad.

**** HADAMBY CHARLES MEARING XXN MR MOORHEAD
PN1184

But those job routers would show that jobs were completed that morning though?
---The job routers have the purpose of telling the company where the people have booked time to work orders. It doesn't necessarily tell the company whether work is up to a certain percentage of completion. We have to verify that by looking at the work. Because we could have cost over runs, we could have worked more hours on a job than planned. So it is not necessarily an indication of physical completion. We have to verify that with check sheets and so forth.

PN1185

So what were your supervisors doing, as you allege employees were clocked on but not working?---What the supervisors were doing?

PN1186

Yes?---I can't say what they were doing because during most of that Friday I was either involved in meetings with the unions or on the telephone to our advisers or to head office.

PN1187

Did you give any direction to supervisors to deal with employees who were clocked on but not working?---No I didn't.

PN1188

Wouldn't you be concerned that supervisors were letting this practice go by?
---The company was strategising on how we handle the situation, and we didn't want to inflame it by some supervisor doing something that he shouldn't be doing. So we were trying to establish what we needed to do about the whole situation.

PN1189

But what is wrong with them recording what work was being done? That wouldn't have inflamed the situation would it?---We don't normally ask supervisors to write down what work was being done. They take the existing tools they have and assess jobs to make sure that they get completed.

PN1190

Did supervisors try and validate the work performed on Thursday the 12th or Friday 13 May?---You will have to ask that question of Mr Sabine. In the information given to me it wasn't possible for us to accurately say whether people have actually worked on jobs or not. It didn't match with the supervisors' assessment of physical completion.

PN1191

Is there any reason why supervisors couldn't come and give evidence today?
---Pardon?

PN1192

Is there any reason why supervisors could not have come to give evidence today?
---I believe it is our right to chose who is witnesses and who are not.

**** HADAMBY CHARLES MEARING XXN MR MOORHEAD
PN1193

Are the supervisors that you employ currently are they the same supervisors that were employed on 12 and 13 May?---Yes.

PN1194

They are at the workplace today aren't they?---I wouldn't know if everyone one of them was there. They are supposed to be there. And then if someone has got leave or if someone was sick or something.

PN1195

I have no further questions Commissioner.

<CROSS-EXAMINATION BY MR BROANDA [3.49PM]

PN1196

MR BROANDA: Mr Mearing at clause 6 of your statement you talk about receiving the first of many notices in terms of industrial action from the AMWU. Do you see where I am looking at there?---Yes I do.

PN1197

What is your understanding of the intention of those notices?---I am not a lawyer. I just understood this as them telling us that they will be engaged in an action on those days, as outlined on the statements.

PN1198

I appreciate you are not a lawyer, I am only seeking your lay person's opinion, if you like. Is it the case you take those notices to be an intention of an absolute action?---I don't know.

PN1199

That is, does the notice pre-empt that that action will take place? Is that your understanding, or is your understanding something else?---Well, just receiving a fax saying that people will engage in action tells me that - I would assume that they will engage in action.

PN1200

Had you received those notices to cover action on days other than 12 or 13 May of this year?

PN1201

MR MURDOCH: I am sorry the question is very broad based and on specific. I tried, when I was asking about notices, to take witnesses to particular notices that have been put in, and I suggest in fairness particular notices should be put to the witness.

PN1202

MR BROANDA: Mr Mearing do you recall, without handing you something at this stage, do you recall if there was a notice in place for Wednesday 11 May, for any protected action at all?---I will have to page through the notices.

PN1203

THE COMMISSIONER: You could give Mr Webb's statement too.

**** HADAMBY CHARLES MEARING XXN MR BROANDA
PN1204

MR BROANDA: Yes, if the witness might be shown Mr Webb's statement Commissioner.

PN1205

MR MURDOCH: May I just see it on the way up. Thank you very much.

PN1206

MR BROANDA: Mr Mearing have you seen that notice before?---I have seen many notices. I may have seen this one. Many of them were sent to our head office in Granville and not to me, but received them afterwards.

PN1207

Mr Mearing perhaps just for the transcript would you just describe what the document is. It might be appropriate?---It is headed notice of intended industrial action. It is dated 5 May and it says that on Wednesday 11 May people will commence in a number of bans.

PN1208

Again I will ask you, what is your understanding of such a notice? Is it the
case - - -

PN1209

MR MURDOCH: No I object to that. The witness said in relation to a letter that is addressed to the manager EDI Rail Pty Ltd, 2B Factory Street, Granville, that many of these notices were sent to Granville. He is not sure whether he saw it. It is unfair to him to ask him to give an interpretation on someone else's letter that he may never have seen.

PN1210

THE COMMISSIONER: Mr Mearing that is true and I suspect also the witness may already have answered that. So we will allow Mr Broanda an opportunity to rephrase the question.

PN1211

MR BROANDA: Mr Mearing could you turn to clause 12 of your statement?
---Yes.

PN1212

Do you see there that you talk about notices covering the period 1 April 2005 to 11 May 2005, and you talk in part about - at least in part about what those notices say?---Yes.

PN1213

Do you now recall whether you have seen those notices or not?---I would have seen the notices if I wrote it in my statement, yes. I can't recall when I saw them, whether it was in that week, but I did see them.

PN1214

But you do acknowledge that you have seen those notices?---Yes.

**** HADAMBY CHARLES MEARING XXN MR BROANDA
PN1215

Those notices outlined industrial action the unions sought to protect during that period?---They what?

PN1216

Those notices outlined industrial action that the unions sought to protect?---Yes.

PN1217

Is that your understanding?---Yes.

PN1218

Would you accept that there was industrial action taking place during that period, or do you say there was no industrial action during that period?---Yes, there was industrial action in that period.

PN1219

Being at least some of the items listed in those notices. Is that your understanding?---Yes.

PN1220

Mr Mearing at clause 19 of your statement, if you could turn to that, you talk about short individual meetings with your senior management team?---That's correct.

PN1221

Are those meetings minuted?---Being individual meetings, if something flows from it I follow it up with an email.

PN1222

I will ask again. Are those meetings minuted?---No they are not minuted. Any action, as I have said, is confirmed per email. Or with a to do on the locus note system.

PN1223

At clause 35. It is clause 35 but it is actually on page 6 of 8, the dot points, at least the last four dot points under clause 35. What you are talking about in here is what you were advising the delegates at the meeting with the union representatives on the Thursday, at the Thursday meeting?---Yes.

PN1224

Do you see at the last dot point you say that you advised the delegates that the employees would not be paid for the whole day in which they were engaged in industrial action?---Yes.

PN1225

Who made that decision?---Well, as a manager being advised by relevant stakeholders, I made that decision.

PN1226

Why did you chose not to pay for the Thursday yet you had paid for the period 1 April to 11 May when you say industrial action was taking place?---As I have said in my statement, in general terms, we were aware that there was some action in place. We never condoned that, we never agreed with it. We chose, because it is EDRL's first certified agreement with the Walker's business employees that we would try to be sensitive to the community and the workers, and not unnecessarily escalate any matters where at all possible. And we have tried to make the factory go and put the work out with the restrictions that were in place up to that point in time. However when it was escalated on the Thursday we gained legal advice and we acted on that advice, where we didn't have - we didn't specifically seek legal advice for the period beforehand.

**** HADAMBY CHARLES MEARING XXN MR BROANDA
PN1227

Are you saying that that was an act of discretion that the company chose to pay the employees from 1 April to 11 May? Do you say that there was a discretionary right of the company whether to pay or not to pay?

PN1228

MR MURDOCH: The witness is being asked now about rights. That is a legal question. He said that when the escalation occurred on the Thursday he obtained legal advice.

PN1229

THE COMMISSIONER: I take your point Mr Murdoch. I think Mr Broanda is targeting a slightly different question and I will give him an opportunity to relaunch it.

PN1230

MR BROANDA: Mr Mearing without asking you what your advice was is it the case that you formed an opinion that those employees could not be paid for any part of that Thursday work?---That's correct.

PN1231

That would include any period of work that might have been performed?---What do you mean by period?

PN1232

There is some debate, I guess Mr Mearing, about whether or not there was productive work performed, work performed that the company would have liked to have seen. If it could be shown that there was productive work performed on the Thursday do you say that the industrial action would prevent you from paying for that productive work?

PN1233

MR MURDOCH: I object. It is a hypothetical question based on - - -

PN1234

THE COMMISSIONER: Yes it is. It is a hypothetical question. I think the first bullet point at the top of page - at the third bullet point of paragraph 35 is in part exactly what the evidence is and what has been attested to orally as well. I am not too sure whether you want to bounce of that at all, but you are heading off into an extrapolation and I don't think it is going to - - -

PN1235

MR BROANDA: Commissioner I will back up a few steps then. Mr Mearing you said that you acknowledged that there were notices supplied to the company for the period 1 April 2005 through to 11 May 2005. That is in fact in your statement. Do you recall a moment ago. I think it was clause 19. I apologise. It was clause 12, and Mr Mearing a moment ago do you recall agreeing with me that those notices informed the company that there was industrial action taking place, and you took that to be at the time - - -

**** HADAMBY CHARLES MEARING XXN MR BROANDA
PN1236

MR MURDOCH: No, no, that can't be right. The notices - this is very important. To put to the witness that the notices advised the company that there was industrial action taking place. Now that is not what they say on their face. All of them give notice into the future about something that is said to be intended to happen.

PN1237

MR BROANDA: Mr Mearing those notices - is it your opinion that those notices advise of action to take place?---Yes.

PN1238

And unless withdrawn that action is going to take place?---Yes I would assume it would take place if the union said it was going to take place.

PN1239

At any stage during the period 1 April to 11 May were you advised that that action was withdrawn?---What action?

PN1240

The industrial action in those notices you refer to at point 12.

PN1241

MR MURDOCH: I am sorry to interrupt, but the problem here is that there are multiple kinds of industrial action rolled up into single notices, and it is unfair to the witness to ask him at large. If there is a particular aspect of it that is being asked about he should be asked about the particular aspect.

PN1242

MR BROANDA: Commissioner with respect, I am giving the witness an opportunity to comment on any part of the industrial action notices that he has referred to at clause 12, that he has said under cross-examination he recalls seeing as a result of being reminded about his point 12. The question Commissioner is very simple. Was there at any stage during that period for which he refers to notices being in place a withdrawal of any of those notices that he refers to in his witness statement?---I have received no paperwork to that extent, no.

PN1243

THE COMMISSIONER: So the evidence from the witness is that the action didn't take place as stated or as intended, as stated was intended to make in the notice and you weren't informed that that was to be the case?---Yes.

PN1244

It simply didn't take place?---It didn't take place.

PN1245

MR BROANDA: Commissioner with respect. I don't - - -

PN1246

THE COMMISSIONER: If you want to clarify that then do so, but that seems to be the way it is going.

**** HADAMBY CHARLES MEARING XXN MR BROANDA
PN1247

MR BROANDA: Mr Mearing just to clarify what the Commissioner's comments just were, what is your understanding in terms of those notices? Is that action in place until it is withdrawn? Is that the situation in your understanding?---I just assume that if the unions say they are going to invoke some actions that they are going to do it.

PN1248

So would you say that there was industrial action taking place between
1 April 2005 and 11 May 2005, or would you say there was no action taking place during that period?---Yes, there was bans on overtime. There was bans on new shift starts, and there was bans on people refusing to work with new staff.

PN1249

And the company chose to pay the employees for that period?---We did pay people.

PN1250

Could you turn to point 59 in your statement for me. Mr Mearing at point 59 you are talking about the Friday, at some stage on the Friday, and you say that you viewed what you refer to in that clause as the vigil taking place. Your last sentence there reads:

PN1251

It appeared to me as if all our employees gathered in the area around the vigil.

PN1252

Are you saying that you observed all your employees at that site at that time you say?---No. That is not what I am saying. I just mean to say that I saw many people there, many employees.

PN1253

Did you see any evidence of employees leaving the site for that vigil?---I didn't physically stand and watch for a long time. I could see from my office window, if I looked specifically, I could see where they have gathered that morning. I have seen that the media was there and I have walked outside and saw the tent being erected and many people gathering there.

PN1254

Mr Mearing I appreciate you can only speak for yourself, and I am only asking you to. So in your observations you didn't see any employees leaving the workplace, other than those that were attending the vigil? You didn't see employees getting on their motor bikes and taking off? You didn't see employees get in their car and drive away?---They might have. I can't see from my office or from the front door every part of the plant. It is possible that they may have left, some people may have left.

PN1255

At clause 60 you talk about the company making a decision not to charge clients for the time recorded on the Thursday and Friday?---That's right.

**** HADAMBY CHARLES MEARING XXN MR BROANDA
PN1256

When you say the company made a decision what do you mean by that?---That means myself and based on the information given to me by the financial manager, and the information given to me by the production manager.

PN1257

When did the production manager and the other manager give you that information?---I received information at various stages. I can't recall every occurrence. I made reference to about 9.30 on the Thursday somewhere there.

PN1258

Is this information as a result of meetings with your management team, I think they are referred to?---Yes.

PN1259

And are those meetings minuted?---No. Our monthly management meeting was minuted.

PN1260

But these meetings that you held with what is referred to as the management team, and in some places you refer to them as your senior management team, over the course of these two days, to discuss what is going on, the company didn't minute those meetings?---I minuted one of those meetings. I minuted the meeting where I met with my advisers, Bramble Management, and with the local people on a conference call. I did minute that.

PN1261

That is the only meeting minuted?---Yes. Normally, when decisions are taken, as I have previously said, I follow that up with emails or to dos.

PN1262

But usually they are not minuted are they?---No.

PN1263

Thank you. No further questions Commissioner.

<CROSS-EXAMINATION BY MS INGLIS [4.11PM]

PN1264

MS INGLIS: Mr Mearing at paragraph 24 of your statement you indicate that Mr Sabine reported to you that he had noticed some irregularities in the employees time recording practices that morning?---Yes.

PN1265

Which employees was he talking about?---To my recollection it was a general statement.

PN1266

So you don't know the names of the employees involved then?---We can find the names of every single employee that is supposed to have clocked on, on the site. It is not necessary for me to go and search it out in an occurrence like this, because I can retrieve it if needed from the accounting system.

**** HADAMBY CHARLES MEARING XXN MS INGLIS
PN1267

So you have no knowledge of how many employees were involved in that alleged irregularities in the time - - - ?---Look, the information is in the system. It is easy to get it out, and I know exactly in our monthly report how many hours was lost.

PN1268

But within your knowledge at the moment you are not able to answer that question, is that correct?---I haven't got it here with me, if that is the question, no.

PN1269

Would that be the same then, that some employees who are clocking on for work but not booking onto particular jobs. You wouldn't have knowledge of that either?---Not here with me. But I mean it is all in the system and I can get it out, if you wanted that.

PN1270

You have also said you have reported once again Mr Sabine talking about other employees clocking off jobs but not clocking onto particular jobs. Would it be the same situation for that?---My answer would be the same as the two previous answers that I gave.

PN1271

Just going back then to paragraph - the section of your statement which commences, I guess, at paragraph 20, where you are talking about some employees - having been told that some employees walked off the job that morning, and you weren't particularly concerned at that stage. Then in paragraph 23 you say:

PN1272

However by 9.30 there was a concern amongst the management team that employees were engaged in rolling stoppages.

PN1273

?---Yes, we were starting to get concerned , yes.

PN1274

So you then make reference, at paragraph 28, that there was a situation of uncertainty that existed until 12.30 pm?---That's correct.

PN1275

So you were aware of a meeting that took place, according to your statement, that morning, you refer to in paragraph 22, you didn't put a particular time on that but you refer to that as the first meeting. So would that be talking about the meeting that was said to have taken place at 7.15 or thereabouts that morning?---I can't answer that question. I only wrote down here what I made notes of.

PN1276

You referred then in paragraph 22 to a follow up meeting. Would that be perhaps the second meeting that took place that morning, the second 15 minute meeting?
---I didn't refer to any specific meeting. I just said I probably wouldn't have thought it strange if people had two meetings, because it has happened with our discussions and then at a follow up meeting. So what I was saying is if there was a follow up meeting it probably still wouldn't have concerned me.

**** HADAMBY CHARLES MEARING XXN MS INGLIS
PN1277

So around 9.30 you began to be concerned?---That's right, yes.

PN1278

So by 12.30 there is evidence before the Commission that there were meetings at - around 7.15, 8.15, 9.15, 10.15, 11.15 and 12.15. Is that correct?---No. The 12.30 refers to the start of our monthly management meeting. We were out of - we couldn't monitor the situation during that time as a management team, because we had a prescheduled management meeting to attend to.

PN1279

Sorry, I think you misunderstand me. I am talking about the 15 minute stop work meetings that occurred hourly, as the Commission has been told, on 12 May. So there have been - by the time you refer to in paragraph 28 there had been, by this stage, some six of those meetings. Is that correct?---I didn't count them.

PN1280

You didn't count meetings when there is a down time, is that correct?---No, I look at the hours, look at the hours lost.

PN1281

In paragraph 27 of your statement you said that employees appeared to be stopping work at a quarter past the hour?---That's right.

PN1282

So when did that come to your knowledge?---I can't recall so far back. Just looking at my statement it would have been somewhere between 9.30 and 12.30.

PN1283

So certainly by the time you got to the 12.30 meeting you were aware of that pattern that had emerged during the course of the morning. Would that be correct?---We were aware that something was going in.

PN1284

You were aware that there were a number of meetings that had taken place that morning, a number of meetings attended by employees?---I didn't know if they were all meetings. I just knew people clocked off and clocked on and walked about the plant.

PN1285

But you said that they appeared to be stopping work at a quarter past the hour?
---Yes, it appeared like that.

PN1286

Then you have indicated at paragraph 33 that you called a meeting with union representatives, and that took place at approximately 3.20 pm?---That's right. Is that when you asked what was actually happening, whether there were in fact meetings taking place?---I wanted confirmation from the delegates, from the EBA team. That was after - this was between the monthly management meeting. After the management meeting and our meeting with our legal advisers and our Sydney office.

**** HADAMBY CHARLES MEARING XXN MS INGLIS
PN1287

So you have been aware of a pattern some time between 9.30 and 12.30 where there have been meetings taking place once an hour, in your evidence, at a quarter past the hour.

PN1288

THE COMMISSIONER: Was that the witness's evidence?

PN1289

MS INGLIS: Yes.

PN1290

THE COMMISSIONER: The witness's evidence, I thought, was that he knew something was happening - - -

PN1291

MS INGLIS: No, in paragraph 27 Commissioner he says that employees appeared to be stopping work.

PN1292

THE COMMISSIONER: And a pattern. Is it a pattern? A reference to a pattern?

PN1293

MS INGLIS: It says that employees appeared to be stopping work at a quarter past the hour, which I took to mean a pattern. Mr Mearing why did you leave it until 3.20 in the afternoon to ask whether there were meetings taking place, whether there was industrial action taking place?---I think I have explained that. We realised by 12.30 that there was definitely something going on. We had a prescheduled meeting which we had to complete, and we knew to gain advice because this looked like a serious situation because of all the time that we were losing. So we wanted to make sure that we didn't compromise ourselves in any way, or do something we shouldn't do. So we had to gain advice before talking to the delegates.

PN1294

At the meeting at 12.30 was the production manager in attendance at that meeting?---Yes.

PN1295

In answer to a question from Mr Moorhead previously, you indicated that there are a number of supervisors that report to the production manager. Is that correct?---Yes.

PN1296

Some six or seven supervisors?---Yes.

PN1297

Would the production manager have been in contact with the supervisors during the morning?---You are going to have to ask him that. He was in individual meetings with me and so forth, many times during the morning. So I can't answer that.

**** HADAMBY CHARLES MEARING XXN MS INGLIS
PN1298

At paragraph 26 of your statement you have indicated that you were liaising with members of the management team, obtaining feedback about what was going on, on the site. You have indicated that the management team were liaising with supervisors. The management team, you say, met at - or the senior management team, at least, met at 12.30 pm?---That's right.

PN1299

So prior to that some members of that management team presumably then were liaising with supervisors. Would that be correct?---Yes.
The role of the supervisors, I think you indicated previously - I can't remember your exact words, but essentially the supervisors supervised the operations of work occurring within their areas. Is that correct?---As I have explained, we do rely a great deal on autonomous work by tradesmen in this type of industry.

PN1300

Where would the supervisors have been during the time of, or during the morning hours at least on 12 May? Would they have been out on the shop floor in their various area?---I can't answer for each supervisor. Generally they would be either in their office or in the factory or in the admin building in a meeting. They would be on the premises somewhere, going about their daily business.

PN1301

Wouldn't supervisors have an idea of what employees in their charge are doing, during a particular period of time? Not the minutiae of which bit of the work schedule they are working on, but would they have a general idea of what people are doing?---They would generally know where people work, and generally what they were working on. They wouldn't necessarily know exactly where each person was up to, but they would expect each person's work with intervals, to cross-reference it.

PN1302

I missed the last bit of what you said sorry. They would or wouldn't inspect?
---They would normally inspect the progress on people's work, to cross reference it to do a time confirmation sheets by .....

PN1303

THE COMMISSIONER: Mr Mearing earlier in your evidence you stated that generally employees are directed by supervisors, and a short moment ago you mentioned that you are relying on the autonomy of the trades persons. How do I reconcile those?---What I mean by that is generally the supervisors would make sure that people are at work, that they have material, that they have specifications and check sheets. And we would expect trained tradesmen, some are being paid at higher levels than normal tradesmen, to use their discretion in the completion of work, and to fill in - in some cases fill in check sheets to check their own work.

**** HADAMBY CHARLES MEARING XXN MS INGLIS
PN1304

So when you say generally supervised, if you like, you are saying that they are referred to the job that they are meant to execute and given the materials and other requirements to complete that job and that is what you mean?---That's correct. The tradesmen are being treated as tradesmen and not as people that require constant direct supervision and direct guidance by the supervisors.

PN1305

MS INGLIS: In paragraph 24 of your statement you - I am just going back to the point where Mr Sabine reported that he had seen irregularities in the time recording practices. How would he have obtained that information? Would that have been from supervisors?---I have to guess on how he became aware of that. You are going to have to ask him that. I know there was discussions that morning between myself and the other two managers. You would have to ask him how he became aware of that. I know that he checked on the system. Once he became aware of it and he then alerted me. But how exactly he came aware of it I don't know.

PN1306

So you didn't ask him what gave him that idea? Why he had drawn that conclusion?---No, no. I asked him why he said that something was going on. He told me he checked the system, and looking at the patterns of time recording it appeared abnormal. I didn't ask him why he checked the system.

PN1307

But he has particularly told you that some employees were clocking on but not booking to particular jobs?---Yes he would have seen that from a print out of the system or on the screen, or something to that extent.

PN1308

And he has told you that employees were clocking off but when they were clocking back on, not to any particular jobs?---That's right.

PN1309

Wouldn't you have directed him to tell employees to correctly clock on, if they had not been doing that?---Given the fact that we are in EBA negotiations and that this appeared to be something out of the ordinary we decided that we will investigate the matter further before just jumping in.

PN1310

So it wasn't until 3.20, effectively, that you sought to find out what this something that was going on was?---No. That is not what I have said. I said, if you read my statement you will see that we have basically that we became aware that there was a pattern and I have explained that we had a prescheduled management meeting, which is difficult to do because we also involve other managers like project managers and managers that don't report to me. It is difficult to get all those people together in the same room, because they have other commitments. So we had to finish that meeting. So we went into that meeting and after that meeting we were armed with the information we had, gained some legal advice and consulted with our head office on an appropriate strategy. And after that meeting it was unfortunately 3.20 in the day.

**** HADAMBY CHARLES MEARING XXN MS INGLIS
PN1311

But in your own evidence at 9.30 in the morning you had a concern that there was something, as you said, going on. That's correct? During the morning you formed a view that there was a pattern of employees clocking off at a quarter past the hour. You have had reports of irregularities that Mr Sabine has mentioned with regard to time recording practices. You have had industrial action notices from the period dating back to April, up until that particular day, talking about stop work meetings. Yet you didn't speak to delegates to verify that until 3.20, that's correct isn't it?---I didn't know this was - what this was about. I assumed if there was going to be stop work meetings it would be every hour on the hour, as is previously said. And like also previously said I did recall on that day that those notices would have referred to every hour on the hour. It is something easy to remember.

PN1312

No further questions Commissioner.

PN1313

THE COMMISSIONER: Thank you. Mr Stein.

<CROSS-EXAMINATION BY MR STEIN [4.29PM]

PN1314

MR STEIN: Thank you Commissioner. I won't take too long. Mr Mearing at clause 12 of what the advocates have taken you to. Clause 12, you say that you were receiving notices from 1 April to 11 May. That is a period of about six weeks, repeatedly saying that there would be stop work meetings for 15 minutes on the hour every hour. That's correct?---(No audible response.)

PN1315

Then at clause 23 you say that there was a concern that there were rolling stoppages occurring. At clause 24 Mr Sabine has been reporting to you that there is some irregularities in the time keeping, and you were liaising with members of the management team about what was happening. You have a large number of supervisors on the site obviously. Would you expect - and there has been evidence put before the Commission this morning that a large number of employees were clocking on and clocking off what would appear to be systematically. Would you expect your supervisors to notice that?

PN1316

MR MURDOCH: I object. That is not a fair question. It went on for an interminable period.

PN1317

THE COMMISSIONER: Take a step backwards Mr Stein and just see whether you put the question in a nutshell to focus the witness's attention.

**** HADAMBY CHARLES MEARING XXN MR STEIN
PN1318

MR STEIN: The point is if a large number of employees were clocking off at the same time would you expect your supervisors to notice that?---The supervisors wouldn't necessarily have access to the time clocking. I should also comment on the fact that I have got one supervisor vacancy. So I should have between five or six supervisors for approximately 240 employees who work over a fairly large plant, around corners and behind rail cars and stuff, where you can't see them. It is difficult to establish what every employee is doing at every given point in time.

PN1319

Understood, but at some point you would expect your supervisors, no doubt, to realise that workers are stopping work for 15 minutes on the hour, correct?
---Somewhere during the day, yes.

PN1320

So only one supervisor for 200 people?---No, no that is not what I said.

PN1321

What I asked you was would you expect any of your supervisors to recognise that large number of employees are clocking off?---They wouldn't notice. They wouldn't know if these were mass meetings or something like that.

PN1322

The issue is whether they would notice them clocking off. There were, as was put before, a number of instances throughout the morning where people were clocking off. Is it your evidence that the supervisors didn't report to you at all that people were clocking off en masse?---No, the supervisors don't directly report to me. They report to the production manager.

PN1323

But you had no information given to you about the supervisors reporting this activity?---Well the production manager and logistics manager came back with reports of what they sighted.

PN1324

So you did get reports through the morning that people were clocking off en masse?---I believe I said so in my statement.

PN1325

At clause 27 you say:

PN1326

Employees appeared to be stopping work at quarter past the hour.

PN1327

What information did you have that would lead you to make that statement?---It would have been a print out from our - the RB system or mantrack, rather, which is the system with which we capture time worked by employees.

**** HADAMBY CHARLES MEARING XXN MR STEIN
PN1328

That gave you specific information of what times they were clocking off?---We could see for individual employees when they clocked off and on or didn't clock on or didn't start jobs and stuff like that.

PN1329

You have identified a quarter past the hour. So I take it that the information that came to you identified that as a point within the hour, a common point within the hour when people were clocking off?---Yes, from general observations and from the spread of clocking on and offs that we saw. It looked a quarter past the hour was something that they were targeting.

PN1330

Every hour?---I haven't got that information.

PN1331

Was it occurring - according to the information you were getting was it occurring every hour?---I haven't got that information here with me.

PN1332

But the information you were getting, which led you to make the statement, was the information giving you the impression that it was on the hour every hour?
---Yes.

PN1333

MR MURDOCH: No, wait on. That is not what the witness said, with respect. What he said in his statement was that it was at the quarter past the hour, not on the hour. He makes the point in his statement that in fact it was not every hour on the hour.

PN1334

MR STEIN: With respect Commissioner it is on the hour. It is not at the top of the hour, and when I asked the witness he said to me yes, it was every hour on the hour?---No I said every hour on quarter past the hour.

PN1335

On the quarter past mark of the hour, every hour?---Yes something happened every hour at quarter past.

PN1336

At or on a quarter past?---Around a quarter past.

PN1337

I just want to clarify from you that going by what you have said in paragraph 12 that for six weeks you had been receiving notices that there will be stoppages for 15 minutes every hour on the hour. Given information that people were stopping at a quarter past the hour every hour on the hour that your senior management team could not put together that that was what was happening? That you were uncertain as to - - -

**** HADAMBY CHARLES MEARING XXN MR STEIN
PN1338

MR MURDOCH: I object to the question. It is long, it is convoluted, it is unfair.

PN1339

THE COMMISSIONER: There is another context to the question as well. Because remember this action that was muted didn't take place between the - - -

PN1340

MR STEIN: That's right, but the witness has stated that he had been told for six weeks, repeatedly told, that action would take place on the hour.

PN1341

THE COMMISSIONER: And nothing transpired.

PN1342

MR STEIN: Nothing transpired. But further on - - -

PN1343

THE COMMISSIONER: Then something did transpire.

PN1344

MR STEIN: - - - further on it was transpiring, quite clearly.

PN1345

THE COMMISSIONER: Something transpired.

PN1346

MR STEIN: Well, action on the hour every hour was transpiring.

PN1347

THE COMMISSIONER: I don't know how far this is going to get us. But let us go back to the original question, which I diverted you from Mr Stein. I shouldn't have, but do you want to just restate your question quite succinctly for the witness.

PN1348

MR STEIN: My point is that given the notice for some time of action occurring on the hour, at clause 27 you state that action was occurring every hour, and at clause 27 you say there was uncertainty. I put it to you that your senior management team - I ask you did your senior management, were they not capable of understanding that the action that was taking place was in fact the action referred to?

PN1349

MR MURDOCH: I object to the question. It is ridiculous to ask the witness about the capacity of his senior management team. It is a ridiculous objectionable question.

PN1350

THE COMMISSIONER: I do think the question is stretching the requirements of the - - -

**** HADAMBY CHARLES MEARING XXN MR STEIN
PN1351

MR STEIN: Well, the senior management team for responsible for gathering the information Commissioner, that led to the showing that was happening hourly. The senior management team were responsible for the supervisors who would have been observing what was happening.

PN1352

THE COMMISSIONER: But don't we have evidence of this over the course of the hearing so far. That between, I think it was Ms Inglis or that Mr Broanda, under questioning from either of those persons, that the witness gave evidence that by a time, perhaps between 9.30 and 12.30 pm on that relevant day it became evident to the management that there was a pattern, if you like, in place, but it was something that emerged over the course of the observation of the conduct. I am not too sure what more you are trying to adduce than that sort of framework.

PN1353

MR STEIN: Simply about the uncertainty Commissioner. You say in your statement:

PN1354

I do not know whether the stoppages were part of the purported protected action or whether they were part of something else.

PN1355

Was there anything something else that you may consider it could have been? I will rephrase that question, I am sorry. I will withdraw it. What do you mean by something else?---I wouldn't know. Some other form of action or meetings, or something.

PN1356

What previous activity had occurred that would give you such an understanding, that something else could be occurring?---People have had unpaid meetings before.

PN1357

On a regular and systematic basis, similar to what was occurring on that day?
---Not in a patterned fashion over a whole day, like in this case.

PN1358

No further questions.

PN1359

MR MURDOCH: I have no re-examination Commissioner.

PN1360

THE COMMISSIONER: Thank you. Given the hour - - -

PN1361

MR MURDOCH: I don't think there is any point to be served in calling another witness today.

**** HADAMBY CHARLES MEARING XXN MR STEIN
PN1362

THE COMMISSIONER: This witness can stand down.

<THE WITNESS WITHDREW [4.39PM]
<ADJOURNED INDEFINITELY [4.40PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

TONY IAN ROBINSON, SWORN PN725
EXAMINATION-IN-CHIEF BY MR MOORHEAD PN725
EXHIBIT #1 STATEMENT OF MR T I ROBINSON PN759
CROSS-EXAMINATION BY MR MURDOCH PN763
RE-EXAMINATION BY MR MOORHEAD PN1006
THE WITNESS WITHDREW PN1077
HADAMBY CHARLES MEARING, SWORN PN1081
EXAMINATION-IN-CHIEF BY MR MURDOCH PN1081
EXHIBIT #R1 STATEMENT AC MEARING PN1084
CROSS-EXAMINATION BY MR MOORHEAD PN1084
CROSS-EXAMINATION BY MR BROANDA PN1195
CROSS-EXAMINATION BY MS INGLIS PN1263
CROSS-EXAMINATION BY MR STEIN PN1313
THE WITNESS WITHDREW PN1362