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Australian Industrial Relations Commission Transcripts |
1800 534 258
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 10023
COMMISSIONER EAMES
C2005/1615
s.127(2) Application to stop or prevent industrial action-CFMEU and Boral Australian Gypsum Ltd re alleged industrial action at the Boral, Port Melbourne operation.
MELBOURNE
MONDAY, 12 JANUARY 2005
Reserved for Decision
PN307
THE COMMISSIONER: Mr Wainwright.
PN308
MR WAINWRIGHT: Thank you, Commissioner. I seek to call Collin Flanagan.
THE COMMISSIONER: Thank you.
<COLLIN FLANAGAN, SWORN [3.30PM]
<EXAMINATION-IN-CHIEF BY MR WAINWRIGHT
PN310
MR WAINWRIGHT: Can you please state your name and business address for the transcript?---Collin Flanagan, 500 Swanston Street.
PN311
And what is your occupation?---Organiser.
PN312
What are your responsibilities?---Pardon?
PN313
What are your responsibilities as an organiser?---As an organiser, to represent members.
PN314
And are you the organizer who represents the members at the Port Melbourne Boral plant?---Correct.
PN315
Could the witness be shown D1?
PN316
Mr Flanagan, could I ask you to turn to page three of that document. Do you see there an entry for Friday, the 17th, a meeting at 9 o'clock in the morning?---Yes.
PN317
Did you attend that meeting?---I did.
PN318
Do you see there it says that:
PN319
Neither the employees nor Collin raised any issues about six plus two.
PN320
?---Well, that's incorrect.
PN321
Did you raise any issues about six plus two?---We raised the issues about the standard operating procedures.
PN322
Yes?---Also risk assessments.
PN323
Yes?---Training and rotation plan and job descriptions.
PN324
Yes. And why did you raise those issues?---Well, we raised those issues because at the moment down at the Boral plant everything seems to work in an ad hoc sort of way. We have a lot of guys that are off on WorkCover. The seven plus one seems to work at the moment. We raised the issue with the company regarding working through those procedures and if we were happy with those issues I mean there's no reason that six plus two wouldn't go ahead.
**** COLIN FLANAGAN XN MR WAINWRIGHT
PN325
And are you aware of a certified agreement covering the plant?---I am.
PN326
Were you involved in the negotiation of that agreement?---I was.
PN327
Does that agreement contain a disputes resolution procedure?---It does.
PN328
And what role did the disputes resolution procedure have to play in this issue?
---Well, the disputes resolution procedure as far as we are concerned was put in place. We initiated that. We thought that we would
be back here on 14 January to discuss the issue regarding the seven plus one.
PN329
And when you say back here, what do you mean?---Back at the Commission.
PN330
And how would we be back at the Commission?---Well - - -
PN331
Were you aware that a section 99 application had been listed for that day?---Yes, I was. Yes.
PN332
THE COMMISSIONER: I don't think it matters at the end of the day,
Mr Dalton.
PN333
MR WAINWRIGHT: It's a matter of public record that the section 99 was listed.
PN334
THE COMMISSIONER: Mr Dalton was just a bit concerned that you might be leading the witness, that's all, Mr Wainwright.
PN335
MR WAINWRIGHT: The subtle niceties - - -
PN336
THE COMMISSIONER: I am sure you will be careful.
PN337
MR WAINWRIGHT: Yes, I shall. Thank you, Commissioner.
PN338
Mr Flanagan, can I ask you to look at the entry on the document you have before you for the meeting on the 17th at 12.30, do you see that?---That's correct.
PN339
Do you see there in the second paragraph the comment that it's attributed to you?
---Yes.
PN340
Did you make that comment?---No.
**** COLIN FLANAGAN XN MR WAINWRIGHT
PN341
Was a financial compensation discussed at the meeting?---It was.
PN342
Can you tell us about that discussion?---The actual financial compensation was raised by one of our stewards who from overhearing a conversation that Andrew Pittle was involved in, that Alan Evans from Queensland was a wheeler and a dealer and that there would be some financial benefit out of this. Now, Andrew Pittle wanted to talk to me away from the stewards. I told the stewards that. I didn't want the stewards thinking there was going to be a deal done behind their back and we had a meeting.
PN343
And do you see the comment that's attributed to you in the third paragraph about Jim Cummins?---Well, I see that.
PN344
Did you make that comment?---I can't see where the trouble is because I mean the work still carried over the Christmas period and there was no shutdown
PN345
THE COMMISSIONER: That isn't what you are being asked then?---No, no. That's incorrect.
PN346
MR WAINWRIGHT: So did you make that comment attributed to you in paragraph three?---No.
PN347
Okay. Are you aware of any work that occurred during the shut down at Boral?
---I am aware that some work took place.
PN348
Can you describe the work generally?---I think it was maintenance work.
PN349
All right. Are you aware of how that work proceeded?---From what I hear is it proceeded and I mean I have been aware on annual leave. I mean - - -
PN350
Are you aware of any trouble with the work?---No, there's no trouble as far as I know and at the end of the day our guys just want to get back to work.
PN351
Have you had any subsequent discussions with Mr Pittle?---I had a conversation with him this morning and suggested that the seven plus one status quo should remain, we get back to work as soon as possible and we have a fortnight to work through the issues and his answer was no and that was from Alan Evans in Queensland.
**** COLIN FLANAGAN XN MR WAINWRIGHT
PN352
And when you say to work through the issues, what are the issues?---The issues are the, you know, standard operation procedures, risk assessments, the training, job descriptions and the rotation plan.
PN353
And what was Mr Pittle's response?---No.
PN354
Mr Flanagan, are you aware of what occurred at the plant on 4 January?
---4 January I got a phone call or a page to say that people had been stood down.
PN355
Those are all my questions, Commissioner.
PN356
THE COMMISSIONER: Mr Dalton.
MR DALTON: Thanks, Commissioner.
<CROSS-EXAMINATION BY MR DALTON [3.39PM]
PN358
MR DALTON: Mr Flanagan, you said that on 17 December when you had the meeting with the company you raised a number of issues with
the company?
---Yes.
PN359
And correct me if I am wrong, but the issues that you recall raising were the SOPs, the risk assessment, training and rotation plans
and job descriptions?
---Yes, and safety issues.
PN360
I beg your pardon?---And safety issues.
PN361
Sorry, and safety issues?---Issues.
PN362
What safety issues were they?---Just the amount of people that are on WorkCover.
PN363
Right. The number of people who were on WorkCover?---Yes.
PN364
All right. And then you have had a conversation with Mr Pittle this morning?
---Yes.
PN365
Where you said go back to seven and one and we can work through these issues. Now, the issues that are you are talking about the issues that you raised on the 17th?---Yes.
PN366
Okay. Now, those issues, the SOPs, risk assessments and job descriptions, those are matters that need to be addressed under a seven and one or a six and two working arrangement, aren't they?---Correct.
PN367
Yes. Those are matters that need to be updated regardless of the number of people working on the shift, correct?---Correct.
PN368
All right. And the training and rotation and plans, those are issues specific to a six and two, or are they general issues that need to be worked through regardless of the working arrangements?---Well, the training is to do with the six by two, yes.
PN369
Right. And the rotation plan?---Yes.
PN370
That's six plus two, is it? Sorry, you just need to say yes or no for the transcript?
---Yes, sorry.
PN371
Okay. And you raised that and the company considered and responded to those matters?---Well, the company did - - -
**** COLIN FLANAGAN XXN MR DALTON
PN372
Perhaps not to your satisfaction?---The company did respond.
PN373
Yes, okay. You have been an organiser for a long time?---Are you saying I am old?
PN374
No, you said that.
PN375
THE COMMISSIONER: You are just a boy. You are not kidding us.
PN376
MR DALTON: You have been an organiser for quite some time, you are an experienced organiser?---A while.
PN377
Yes?---I will take your word for that.
PN378
Now, when you deal with the companies through consultative process you know that consultation doesn't necessarily require the company to reach agreement, although that would obviously be the intention of the parties. That's right, isn't it?---Correct.
PN379
No more questions, Commissioner.
THE COMMISSIONER: Thank you. Mr Wainwright.
<RE-EXAMINATION BY MR WAINWRIGHT [3.43PM]
PN381
MR WAINWRIGHT: Mr Flanagan, you were asked about the company's responses to the issues that you raised. How would you characterise their responses?---The response from the company was that the six by two would go ahead no matter what and if the guys didn't accept that then they would be stood down.
PN382
You said you raised the five issues, the standard operating procedure and so forth?---Yes.
PN383
Did you receive a written response to the issues that you raised? Can I ask you, having raised those issues?---Yes.
PN384
And having heard a response from Mr Pittle, what did you feel about that response?
PN385
MR DALTON: Well, I object to this. I don't think this is a question that arises out of the questions that I have asked, Commissioner. It's not something that is properly dealt with by of reply. It seems to be reopening examination-in-chief.
PN386
THE COMMISSIONER: There was an element though of the response that was adduced from the witness earlier that related to the dialogue between himself and Mr Pittle so I am happy for that question to be asked.
PN387
MR DALTON: If the Commission pleases.
PN388
MR WAINWRIGHT: Just if I can recap, Commissioner.
PN389
What I am getting at, Mr Flanagan, is having raised the issues with the Mr Pittle at the meeting on the 17th the five issues and that you were asked a question in cross-examination did you receive a response, I am trying to find out what you thought of the response that the company gave?---The verbal response we are talking about?
PN390
Yes?---The verbal response from the company was that the six by two was the way they were going to go no matter what.
PN391
Did you consider that to be an adequate response?---No, I didn't.
PN392
Thank you.
**** COLIN FLANAGAN RXN MR WAINWRIGHT
PN393
THE COMMISSIONER: I have just one question, Mr Flanagan. In relation to these various standard operating procedures, rotation plan reviews and the like, we had some evidence yesterday which indicated that it's been a concern of the union for a little while that that documentation and those procedures haven't been put in place for the seven by one arrangement. Is that right as you know?---Yes, yes,
PN394
Okay. And that the union had been, and I use the term very loosely, agitating for some time to get those sorts of procedures documented, is that right?---That's correct.
PN395
Okay. And I take it that if there was to be a six by two introduced it would still be the union's position that they want those sorts of procedures put in place and documented?---Yes.
PN396
In your view would there be a substantial difference between what would apply in relation to a seven by one as opposed to a six by two?---The six by two and the seven by one, the seven by one at the moment it has been working for some time and we are still not quite happy with it and - - -
PN397
Now, is that in terms of the procedures or the way it's documented?---The procedures.
PN398
Okay?---The six by two, I mean we just need the company to work through it with us so that we are assured that it will run smoothly.
PN399
In your view is that a process that could be done relevantly quickly?---I am sure it could, yes, and I put that to the company yesterday. Sorry, this morning.
PN400
Are you able to put any sort of a time line on that?---Well, I suggested to the company a fortnight and the company's response was no.
Anything arising out of that? If not, you are excused. Thank you.
<THE WITNESS WITHDREW [3.47PM]
PN402
THE COMMISSIONER: Yes.
PN403
MR WAINWRIGHT: Commissioner, I just wanted to check with you how you wish to proceed now. Obviously I have some submissions to make. I am not quite sure whether to call witnesses.
PN404
THE COMMISSIONER: Sure.
PN405
MR WAINWRIGHT: Just to get some direction from you what order you would like things to - - -
PN406
THE COMMISSIONER: Well, I think if there is any witness evidence that
Mr Dalton wants to call we should hear that and then following that we will take submissions.
PN407
MR DALTON: I was wondering if we could have just have a brief five minute adjournment?
PN408
THE COMMISSIONER: Sure.
PN409
MR DALTON: And then I will address you on what we propose to do by way of response.
PN410
THE COMMISSIONER: All right. And look, either way, if you want to call people in relation to your own position, that's fine and we will take that. But then what I would be looking to do is to take your submissions in relation to this application and I propose to hand down an ex tempore decision tonight. I won't be able to have anything in writing for you, obviously, and I would commit that to writing in due course. All right. We will take a short adjournment.
<SHORT ADJOURNMENT [3.49PM]
<RESUMED [3.59PM]
PN411
THE COMMISSIONER: Mr Dalton.
PN412
MR DALTON: I call Andrew Pittle.
THE COMMISSIONER: Thank you.
<ANDREW JOHN PITTLE, SWORN [3.59PM]
<EXAMINATION-IN-CHIEF BY MR DALTON [3.59PM]
PN414
MR DALTON: Thanks, Commissioner.
PN415
Mr Pittle, could you state for the transcript record your full name and working address?---Andrew John Pittle, 676 Lorimer Street, Port Melbourne.
PN416
And you are the manufacturing manager at the Port Melbourne site?---That's correct.
PN417
And how long have you held that position?---Three months now.
PN418
Prior to that what position did you hold?---I was the manufacturing manager at our Gilman plant in South Australia and prior to that, production manager at Port Melbourne.
PN419
Okay. And as manufacturing manager could you explain to the Commission briefly what your responsibilities are?---My responsibilities are for the operation of the board line which creates the plasterboard, a compounds plant and a plaster mill which provides one of the raw materials for the plasterboard and compounds processes.
PN420
Okay. And do you have anyone reporting directly to you?---Yes, I have seven direct reports and 70 odd indirect reports.
PN421
And who do you report to?---I report to Jason Mackenesty.
PN422
And what position does he hold?---He is the national manufacturing manager.
PN423
Now, the sections of the operations that you mentioned, how many employees are working in those groups?---In the board line there's 32 employees, in the plaster mill there are nine employees and in the compounds area that are covered by EBA and award there are eight employees.
PN424
Now, in the board line area you said there are 32 employees. Could you explain the roster pattern?---Okay. It's a four panel roster and there are currently eight employees with each panel and they rotate over a 38 hour week over a rotating four shift roster working six days per week.
PN425
Did you mention the length of the shift?---The lengths of the shift is a 12 hour shift so in any one month the employees would work - they would be rostered to work 13 days in any one month.
**** ANDREW JOHN PITTLE XN MR DALTON
PN426
All right. Now, briefly, what are their responsibilities on the board line?---Their responsibilities are basically to produce plasterboard, so to oversee the process in the operation of the plant. When the plant is running and settled it can be to some extent a job that requires just process monitoring and not a lot of hands on work and can be quite sedentary to some extent. There are other times during the size change start and shut where they have more manual handling type duties.
PN427
Now, are people on the production line on any one shift allocated to specific tasks or specific sections of the production line?---That's correct. We have a number of tasks and employees would be typically be allocated for part or for the entire duration into a specific area and they would perform a number of tasks within that area.
PN428
Are they only allocated to those tasks or are they able to be deployed to other parts of the production line as and when required?---They can be deployed to any part of the production line so long as they have sufficient skills, training to do so and that is an issue on a shift by shift basis, depending on the resource base and the amount of tasks to be done at any one point in time.
PN429
And who makes the decision as to the deployment - - -?---The shift team leader who is a staff role and his job is to ensure the smooth flow of the process and of the deployment of the operators to the tasks that are required on any one day.
PN430
Right. Now, there are eight employees on the shift and we have heard this expression used, seven plus one. Would you explain briefly
what that means?
---Okay. In our current EBA it states that we will use seven employees as a normal complement, as a minimum, and there will be one
extra employee to cover for absenteeism, training and other duties as required.
PN431
Now, your proposal is that that be reduced to six plus two?---Yes, we have no intention to make anyone redundant. We want to be able to use six employees to cover the quantum of work that we have reduced to and the remaining two employees to be used for cover for absenteeism, training, reclaim duties as well.
PN432
Now, reclaim duties, what is that?---It's an area of our plant where essentially where we have board that we might determine first up that we consider it to be second grade or worthy of another look or a closer look as it comes off the line, so it's like a parking lot to some extent and we work through that board determining whether it's to be sent out to make billets, because we use billets as part of one our raw materials, or it can be actually converted back into good board. It might be cut down to a smaller size or something like that.
**** ANDREW JOHN PITTLE XN MR DALTON
PN433
And under your proposal of six and two who is going to work in reclaim?---Under our proposal the two employees that are spare, the plus two, will be used as part of their duties will be to cover the reclaim function, training and cover for absenteeism.
PN434
Will they be the same employees all the time or how do you propose to do that?
---No. No, we don't think it's fair that we should just part people into reclaim forever and a day. Our proposal as we have stated
to the employees is that we would rotate everyone through reclaim no matter what their status in the board line was.
PN435
All right. Could you explain to the Commissioner what your rationale is for moving from seven plus one to six plus two?---Yes, we have some commercial reasons for doing so and we have a competitor that's come into our market, a fourth competitor, and they have taken quite a sizeable chunk of our market over the past three years.
PN436
You say that they have come in?---Yes.
PN437
Where have they come in from?---They have come from Western Australia. One of the advantages of Western Australia is that it's a net importing State so anyone who knows anything about the transport industry knows that back loading rates can be quite a source of competitive advantage. So for us to move forward into WA he can move it out at a much cheaper cost into Victoria, into the eastern States. He currently has capacity which is in excess, well in excess of the State's ability to consume that product that he can make so he needs to reduce his cost curve by making more product. So for every extra square metre of board he makes and can ship across to Victoria he will make more profit out of that because his standard cost will drop. Every metre of board that he sells to one of our customers that we don't sell means that we are moving up our cost curve and therefore every square metre of board we make effectively becomes dearer.
PN438
THE COMMISSIONER: So the rabbit proof fence doesn't help us?---No, unfortunately.
PN439
MR DALTON: So you have got some competitive pressures of that new entrant?---Yes.
PN440
Is there anything else?---Yes, we have also found that with the stronger Australian dollar that it's really good for buying VCRs and TVs because they are nice and cheap at the moment but it almost means that we're a must juicier target for imports and especially from Asia because we have a fairly hard currency and they are after so we have noticed an increase in the levels of imports into this State as well.
**** ANDREW JOHN PITTLE XN MR DALTON
PN441
Are there any other commercial reasons or other reasons why you want to move to six plus two?---Well, we have also over the course of the past six years we have been implementing a number of technological changes and that have reduced the quantum of work that was required back in 1999 and we have reduced it to the point that we believe that now we can capitalise on that reduction in work and move from seven plus one to six plus two employees.
PN442
When you say that, does that mean that there is a bundle of tasks in a particular part of the production line or a particular operator was performing means that that person doesn't have to work or does it mean - - -
PN443
MR WAINWRIGHT: I have been fairly patient and I was interrupted several times when I lapsed into asking leading questions and I ask that you counsel my friend about the same practice.
PN444
THE COMMISSIONER: Okay. Well, you have raised the point.
PN445
MR DALTON: What do you mean by that when you say that there has been incremental technological improvements that mean you capitalise on that by reducing the number?---Okay. There is a certain quantum of work, a certain number of tasks that employees have to undertake. What we have been doing with the technological changes is either reducing the need, or the quantum, or the frequency and duration of which those tasks are needed to be undertaken. Therefore as a result of that we believe that the net quantum of work that needs to be undertaken really only needs to be undertaken by five and a half employees and therefore we see that we can capitalise by moving from seven to six, with those tasks being distributed over the six employees.
PN446
THE COMMISSIONER: But with no reduction in the workforce?---No, with a reduction in the minimum number from seven to six. So what we have done is reduce the number of tasks.
PN447
I thought you had said earlier that no-one will become redundant?---No-one will become redundant.
PN448
As a result of the exercise?---That's correct. Yes, because we are going to move from seven plus one to six plus two. So rather than having seven men plus one waiting in the wings that could be used for cover, absenteeism, training or other duties as defined, we will now have six employees operating on the board line plus two employees waiting in the wings to be used for cover, reclaim, absenteeism, training or other duties as required.
**** ANDREW JOHN PITTLE XN MR DALTON
PN449
Okay?---So yes, no-one is to be made redundant.
PN450
MR DALTON: All right. Why have you decided to go ahead with this move now?---There are a number of reasons. Once again we have an agreement that we have seen that we have since 1999. We have implemented a number of technological changes that we have seen that have reduced the amount of work. We have consulted with the union regarding those changes and they have not put to us any issues that we see preclude us from going to six plus two.
PN451
Can I just stop you there. In terms of why are you proposing to make the change now as opposed to let us say earlier in the year?---Okay.
PN452
As you pointed in your answer, this issue was first raised in the EBA in 1999, why has taken till December 2004 to come up with this proposal?---As I said, we have introduced a number of technological changes. One of the most recent ones, or the very last one that we were waiting on to be introduced was not introduced until late in November and it wasn't until that time that we felt we didn't want to - wanted to make sure that we were well below a requirement of six rather than being just marginally below six, or requiring six people. We also had earlier in the year a very high demand for our product and the sorts of impacts that we might get from implementing a change like this, we felt that it was going to be too hard to manage along with trying to manage keeping our customers satisfied with their demand requirements for our plasterboard.
PN453
All right. Could I show you a document. It's exhibit D1, Commissioner. Have you seen that document and the attachments before?---Yes, I have.
PN454
Could you explain to the Commissioner the circumstances in which the document D1 was prepared?---We asked our lawyers to prepare this document based on the information that we provided to them.
PN455
When you say we, who are you referring to?---Myself and Gavin Stray.
PN456
All right. Now, the document D1 contains information and then it has attachments. Is this information based on your direct knowledge
or otherwise?
---Yes, it's based on my direct knowledge.
PN457
All right. Is it true and correct to the best of your knowledge?---Yes, it is, although I have identified a number of amendments, just minor ones.
PN458
All right. Perhaps if I hand up this copy of an amended chronology. Commissioner, this has mark ups so that you can follow. There
is just a couple of minor changes I think. Mr Pittle, you will see this document has mark ups?
---Yes.
PN459
Are these the changes that you have instructed your lawyers to make?---Yes, that's correct.
PN460
All right. Well, with those changes is the document true and correct to the best of your knowledge?---Yes, it is.
PN461
I note that it's already tendered, Commissioner. We have gone through that process for evidentiary purposes.
PN462
MR WAINWRIGHT: Commissioner, I have to say I object to this amended document being marked. Obviously I have had it for 30 seconds,
but the first thing I see is on Tuesday, the 14th where Mr Brereton who gave evidence yesterday is being replaced by Mr Bradford
as being made responsible for making some comments. I don't think that the respondent should be given the ability to make that amendment
seeing that when we had an opportunity to deal with that issue we were operating under the false assumption they were alleging that
Mr Bradford made the comments. They have attributed extra comments to
Mr Flanagan who has already given evidence. On the 22nd they replaced Mr Brereton with Mr Frazino. Basically I think, Commissioner,
that they shouldn't be given the opportunity to make the amendments, that they should be ..... on their own information they have
provided to the Commission yesterday.
PN463
MR DALTON: Commissioner, can I response to that, please?
PN464
THE COMMISSIONER: Yes, yes.
PN465
MR DALTON: I note that those delegates, or I am told that they are present, so if Mr Wainwright needs time to get instructions on those changes and if he wants them to give evidence to respond, then I certainly wouldn't object to that course.
PN466
MR WAINWRIGHT: Well, Commissioner, that's outrageous. We have a company here that's engaging in unlawful industrial action that's costing our members money day by day. They haven't worked since 4 January and that's in dispute. We are attempting to deal with this issue through the processes of the Commission and the Commission has responsibility to deal with the matters quickly and the respondent and their lawyers had an opportunity to prepare information and bring it to the Commission. I say that if they didn't exercise due diligence in doing so then they have to be made responsible for that.
**** ANDREW JOHN PITTLE XN MR DALTON
PN467
THE COMMISSIONER: Can I say at the end of the day and my quick read through the document it would appear that it's a change in either
times when certain events occurred or persons who made the statements, or who are attributed to making the statements. Am I safe
in assuming, at least, that if we take Tuesday, 14 December, that where Bradford is substituted for Brereton that
Mr Bradford was one of the delegates, or a CFMEU person, if I can put it that way?
PN468
MR WAINWRIGHT: Well, Commissioner, I think you are safe in assuming that Mr Bradford has been involved, Mr Flanagan has been involved, Mr Brereton has been involved. The real point is that if they come to the Commission yesterday and tell us Bradford had done this and Bradford has done that and we have the opportunity of testing that, then you can rely on it and that's fair enough.
PN469
THE COMMISSIONER: Yes, yes. Ideally this should have been corrected yesterday.
PN470
MR WAINWRIGHT: Yes. For Mr Pittle to get in the box now and to say, well, it's true and correct and these are the adjustments I am making, I am putting to you that you can't rely on that, that the - - -
PN471
THE COMMISSIONER: Well, really he wasn't called yesterday and we only got him today.
PN472
MR WAINWRIGHT: Yes.
PN473
THE COMMISSIONER: But look, to be honest, I am not sure at the end of the day in relation to the question that I have to determine that these changes dramatically impact to the extent of what I might do. In the event that having heard your submissions that I think it is significant, then it may be that we have got to revisit some of these areas and I give both sides an opportunity to deal with that. But as I see it at the moment, I don't think anything particularly that causes me great angst in terms of what I have got to determine. So to that extent, I am happy to receive the document. I won't mark it. I note that it is an amendment to the chronology that has been produced in D1 and if I come to the view that there is some relevance in those changes, as I say, I will give the parties an opportunity to address me on that.
PN474
MR DALTON: If the Commission pleases.
**** ANDREW JOHN PITTLE XN MR DALTON
PN475
Now, in the consultation process what issues were raised by the union and through delegates, OHS reps or Mr Flanagan with the organiser?---The issues raised by them were that there were outstanding issues of risk assessments.
PN476
Perhaps you can just go on your own memory and if you need to refresh your memory then you can look at the document?---Yes, okay. The issues that they stated that they had were the outstanding issues of risk assessments, SOPs, JSAs and position descriptions being updated. They stated that they believed that while - that that's always been an issue and we still haven't addressed that issue and they also brought up an issue, asked how we were going to cover the issue of breaks because the proposal we put to the union was that one of the positions that was going to cease actually gave breaks to three people, crib breaks. So we instructed them that those breaks would be covered by the remaining leading hand and the other question was how are we going to rotate people through the reclaim function, to which we said we are going to rotate everyone through the reclaim function. Their concern at the time was that we would put people into reclaim to rot and die and we said no, that we don't see that as being fair and that everyone should rotate through that function.
PN477
All right. Dealing with the more general issues that you referred to, the SOPs and the job descriptions, etcetera, what exactly are we dealing with there? What sort of documentation are we talking about?---As you can understand, there's quite a lot of documentation that we are looking at there. We have agreed that we have to undertake that process and we currently have a separate process occurring with the VWA and - - -
PN478
Well, could I just stop you there. When you say you have got a separate process with the VWA can you just explain to the Commissioner
what that process is?
---Okay., or how it came - - -
PN479
Well, before you do, how that came about?---Yes. We had at the one of the meetings, one of the organisers had stated that there were some safety issues that were going to follow. We then had 65 - subsequent to that meeting we then had 65 PIN notices issued to us by one of our occupational health and safety reps. We called WorkCover at the time, as we normally would for something like that, and asked them to be involved in the process. We asked WorkCover to come to a meeting, which they did on 24 December.
PN480
Yes?---We went over the 65 PIN notices and all but one of them were parked into this process, ongoing process of identifying of job risk assessments, job safety analysis which would then feed into SOPs, safe working procedures, those sorts of things, position descriptions. There was one outstanding PIN notice which was to do with a forklift testing area and that has since been complied with.
**** ANDREW JOHN PITTLE XN MR DALTON
PN481
In relation to the cancellation of the other PIN notices and the processes that - - -
PN482
MR WAINWRIGHT: I object to that, Commissioner. The witness never said that the PINs were cancelled and in fact legally the PINs can't be cancelled. They have been acted upon, that being this witness's evidence.
PN483
MR DALTON: In relation to the non forklift issues?---Yes.
PN484
Can you explain exactly what the process is and the position of the company vis-à-vis the position of the union or the health
and safety rep concerning - - -?
---Okay. At the meeting with the WorkCover inspector the outcome of that was that the 64 other PIN notices were cancelled because
the WorkCover inspector can't cancel them, he has to have the agreement of the health and safety rep and it was on the basis that
the health and safety rep was happy with the process going forward, being this process of identification and a project plan that
they were cancelled.
PN485
And who is the health and safety rep?---Mark Ebejer.
PN486
Okay. And the project plan, what is that?---Okay. The WorkCover inspector said that he wanted to see a process put in place to address the concerns, the underlying concerns that were forming the basis of the 64 other PIN notices. We said that, well, we believe that this is a rather large task and that we felt that like any project we needed to understand the quantum of work, identify what needed to be done, put some time frames to that like any project plan and then determine how we were going to resource that project.
PN487
When you said we, are you talking about the company or - - -?---No, the company and the employees. So to that end what we have done is not every employee of the 32 that currently are on the board line have been stood down. There has only been some 19 stood down, or stood aside, sorry. Of those 19 some are actually away on annual leave still and others have actually been engaged in this process where we have been employing them and they are typically the health and safety reps. We have been employing them to work on this project plan. That project plan has to be presented to WorkCover by tomorrow afternoon.
PN488
What is the status of that plan?---We have got a draft report that I have seen this morning. We had a meeting with all the health and safety reps on the Monday to see where we were at and so that we would have the ability - they would also have the ability to understand what had occurred. They could have a look at the WorkCover field report, get an understanding of where we were heading with this process and also get involved as part of that process in identifying the tasks that were required to be done. They spent an amount of time on that on Monday - sorry, Tuesday. Sorry, we had the meeting on Tuesday, not Monday. As such we are still working on that project plan but I have a preliminary report or preliminary plan and it currently is showing substantial work that needs to be - - -
**** ANDREW JOHN PITTLE XN MR DALTON
PN489
When you say you have seen a preliminary plan which says there is substantial work?---Yes.
PN490
What does it say?---Okay. At this stage the plan has actually only identified the tasks and the number of job safety analyses and risk assessments that need to be done and there is in excess of 252 hours of work required there. It is acknowledged by the health and safety - it's acknowledged by the health and safety rep, he was the person that said it, that this process still has to go through to all the operators because what you find is that these are reiterative processes. The first person that looks at it might get 80 per cent of the tasks. He gets a person that helps him and then they think of another five per cent and, you know, through the course of going through all the employees we would think that perhaps, you know, they would probably add another five per cent of tasks that need to be done. Since that preliminary report there has been another 20 tasks that have been identified and they will add to that quantum of hours. On top of that, now, that's just JSAs and risk assessments, on top of that you then have to develop the safe work plans, review your SOPs and what not and we feed that into training plans and position descriptions and we see that taking six to 18 months, at least.
PN491
Now, you heard the evidence earlier of Mr Flanagan who expressed the view that this review of this type of material could be done within two weeks. What is your view on that?---I think that's extremely optimistic and really not going to happen. I can't see how we could physically get it done in that time.
PN492
All right. Now, those matters that are identified by VWA and are to be the subject of the project plan, were they tied to any particular method of working on the board line?---They were tied to all the tasks that the board line currently performs. So that would all - - -
PN493
And to answer my question in terms of was it tied to any method of working, for example, seven/one or six and two?---No, the VWA won't actually tell how you should operate your plant. They will say you need to identify what you have got to do and what are the risks associated with that and then what action are you going to put in place to address those risks. They weren't in relation to six plus two or seven plus one, or 10 plus five, or anything else, five plus two.
PN494
All right. Well, as far as you are concerned, the company is concerned, does that process need to be tied to the seven/one working arrangement?---No, VWA, and there was some discussion about whether this was part of six plus two, and VWA were of the opinion that this is something that we need to do as a matter of course, whether we have seven plus one or six plus two.
**** ANDREW JOHN PITTLE XN MR DALTON
PN495
When you say VWA were of the opinion, how do you know that?---I attended a meeting on the 24th with a number of health and safety reps and the VWA.
PN496
THE COMMISSIONER: Of December?---Yes.
PN497
MR DALTON: And who was there from the VWA?---A Mr Binzie, yes. I can't remember, Ian I think it may have been. I am not certain of his first name.
PN498
Well, you have had a number of discussions with the union representatives where they have raised these particular issues. Have they said to you that these processes must be tied to seven and one?---We have had a number of discussions with the union and employees and the employees have stated that while they believe that these are outstanding issues that need to be addressed, they don't see it as a reason to preclude us from six plus two, that it's something that we would have to do whether we are working with seven plus one or six plus two.
PN499
Yes?---And we were given a letter to that extent.
PN500
All right. Now, Mr Brereton produced - - -
PN501
THE COMMISSIONER: Sorry, you were given a letter?---Yes.
PN502
From whom?---Mark Brereton.
PN503
MR DALTON: Can I take you to that document, the first document that was produced by Mr Brereton. I think it's one of the attachments in the chronology that you have prepared?---Yes.
PN504
Tab 7. Now, on the first page and spilling onto the second page, he had - or he expresses - or he takes issue with your view that
the technological and process improvements have resulted in the reductions in the manual handling requirements to the extent that
you assert. Did you respond to him on that?
---Sorry, can you ask the question - - -
PN505
He has taken issue with - he thinks that these changes have had less than a reduction on the manual handling requirements than what
you have asserted?
---Yes.
PN506
Did you respond to that part of his document?---Yes, we did and we said we didn't agree with his stance. We said that - they also have a concern, or Mark had a concern, Mr Brereton had a concern that because we weren't getting rid of a job completely we couldn't actually make - we couldn't reduce by one position and we said, well no, what we are not saying is that we have got rid of a job completely, we are saying that the quantum of work or the tasks that are required have now reduced through technological changes such that we can now move from needing or requiring seven men to now requiring six.
**** ANDREW JOHN PITTLE XN MR DALTON
PN507
Could you read the paragraph after the last dot point. It's on the second page?
---Yes.
PN508
When you met with Mr Brereton did you seek any explanation of that paragraph or did he discuss it with you?---Yes.
PN509
Which one? Was it you seeking clarification or was it Mr Brereton explaining what he meant by that?---We asked him what he meant by that.
PN510
Do you remember what meeting that was in?---It was at the time that we were given the staffing reallocation.
PN511
Okay?---I am not sure of the specific date, although it is - - -
PN512
Was it Monday, the 20th, on your chronology?---Correct, yes.
PN513
All right. What did Mr Brereton say?---That there was always - that there has been some time now that they have been trying to, you know, to get our SOPs up to scratch and our JSAs and risk assessments and the like and that while that doesn't necessarily have anything to do with six plus two it's something that we should be doing to get our house in order and we agreed that that was something that we needed to get our house in order, as any business should, but we didn't believe that it precluded us from going six plus two.
PN514
All right. He has made a reference there I think in the next paragraph to Brisbane. Could you explain what happens at Brisbane?
You have got a plant in Brisbane?
---Yes, we have got a plant at Brisbane and not dissimilar - it's very similar to our plant and it currently runs with five men and
Mark's comment was that he heard that manning levels at Brisbane it's a nightmare working up there and said, well, they are running
with five men, we are not asking to run with five, we want to run with six.
PN515
All right. Did you have any discussions with Mr Flanagan, the union organiser, about the proposed move to six plus two?---Yes, on the 17th and the 21st.
PN516
All right. If I can deal with the 17th first?---Mm.
PN517
That's the meeting where I think we are agreed on this, that the union raised a number of issues including SOPs and things of that nature. Do you remember anything else that was discussed in that meeting?---No, there was nothing else discussed in that meeting. There were other issues but not pertaining to this change.
**** ANDREW JOHN PITTLE XN MR DALTON
PN518
All right. Mr Flanagan said earlier this afternoon in his evidence that the company responded to those issues by saying that you were going to move to six plus two no matter what?---No.
PN519
Was that your recollection?---No, we stated that we have considered the issues that they have put to us but we don't see that the requirement of the SOPs, and while we agree that, you know, we need to address them, we don't see that the SOPs risk assessments, JSAs, constitutes a show stopper or preclude us from going to six plus two. But what we did say is that they need to bring issues to us that we need to address and to consider in order to determine whether we can progress with the six plus two, on 4 January.
PN520
Do you remember when you said that?---That was on our meeting on the 17th.
PN521
Okay. You also said that you also met with Mr Flanagan on the 17th?---Yes, I had a meeting with him off site, after - - -
PN522
Who was that meeting with?---To discuss the issue away from - - -
PN523
Sorry, who was at that meeting?---Sorry, Collin Flanagan was at the meeting.
PN524
Just you two?---Yes.
PN525
Okay. All right. Do you remember what was discussed in that meeting?---Yes, we discussed a number of things but specific or relevant, pertinent to six plus two. There was a comment around about what was the company's position on the employees in getting this thing over the line with regard to, not sweetheart deals, you know, transitional allowance. I stated at that meeting that Allan and Ross, who is my boss's boss and the executive general manager of plasterboard, has stated that they have already paid for this in the past two EBAs and they have no intention of paying again for it.
PN526
I think that there is evidence from the union that says that you were in fact the person who raised the possibility of a financial deal. Is that right?---No, I don't agree with that.
PN527
Okay. I think Mr Brereton gave evidence yesterday that he recalled that you had mentioned that I think your two up boss?---That's right, that's Allan.
PN528
Allan Evans?---Yes.
PN529
Was prepared to do deals. Do you remember saying anything like that?---Yes, I did say words to that effect and that was in the context of the meeting that we had had on 9 December with a consultative committee meeting.
**** ANDREW JOHN PITTLE XN MR DALTON
PN530
Yes?---Allan said he could be flexible with regard to the timing and I said that, you know, Allan is a fairly realistic sort of person and, you know, he wants to get this over the line and he wants to get it over the line as smoothly as possible. He can be flexible and, you know, he can be flexible about the timing but, you know, we can wait a week but we can't wait one or two months.
PN531
Sorry, and who did you say that to and when?---That was to, I said that to the employees, delegates.
PN532
On what date?---We have said that a number of times. That would have been on the - that would have been the 10th.
PN533
Now, Mr Flanagan gave evidence that you had said to the unions that come 4 January that you would be standing people down, I think the words used. Do you remember saying that?---No, I definitely did not say that.
PN534
Did you say anything like that?---No. In fact we had a meeting right towards the end of the year and one of the very last comments, or questions that we had put to us at that meeting was what are you going to do on 4 January and our response to that was we will cross that bridge when we come to it, our intention is that - our preference is that our employees will be working six plus two and if that's not the case, you know, we will consider our position at that point in time.
PN535
All right. When people presented for work on the 4th do you remember what happened?---Yes, we approached each of the employees in turn and effectively stood each aside and asked them to work under a six plus two, under a lawful instruction of six plus two. Gave them the opportunity to respond to that. Asked them if they would present for their next shift as a six plus two. They stated that, you know, they weren't prepared to do that and on that basis we stood them aside until they were prepared to come and work a six plus two.
PN536
All right. Now, the employees haven't worked since 4 January as a result of that direction?---That's correct.
PN537
Is that right?---That's correct. Some have.
PN538
Yes?---Yes, some have. As I have said, we have had - - -
PN539
I think you have given some evidence earlier?---That's correct.
**** ANDREW JOHN PITTLE XN MR DALTON
PN540
THE COMMISSIONER: But not on the board line?---No, not on the board line.
PN541
MR DALTON: Sorry, not working on the board line?---Not actually making plasterboard.
PN542
Do you know how many board line employees are working, although not on the board line?---One, two, three. We have three/four. Four working.
PN543
All right. Well, what is your position on this situation with the employees on the board line not presenting for work?---Well, we would prefer them to be working six plus two.
PN544
All right. Well, what are you doing to try to get them back to work?---We have spoken to - we have had a number of telephone conversations with different employees and we have actually got seven that have said they are prepared to work under a six plus two. As such we haven't been able to get them together in any one shift.
PN545
All right?---These are across a number of different shifts.
PN546
Okay. Now, you had a conversation with Mr Flanagan this morning?---That's correct.
PN547
And he asked you whether you were prepared to have the employees come back on seven and one to discuss the various issues that the
unions raised and then to report back to the Commission on 24 January. Is that in substance what he put?
---That's correct.
PN548
Now, he said that your response was, I think he just said that you said no?---No.
PN549
What did you say?---Yes, that certainly wasn't our response. My response was that we said that we have consulted over this issue. We have sent that - we have stated that we don't agree that the issues that have been put forward to this date preclude us from going to six plus two regarding the SOPs and JSAs and safe work plans and position descriptions and while we have a process in place through the VWA that will address that issue, those things need to be done whether we are working seven men, six men or any number of men on the line and that process will run its course and we don't see a need therefore because of that and that we have addressed those issues and consulted with the union, we don't see a need not to proceed.
**** ANDREW JOHN PITTLE XN MR DALTON
PN550
All right. Well, what would hurt you in just deferring implementation as it were until the matter comes back to the Commission on the 24th? Why can't you work seven/one in the meantime?---Well, we have got - you know, obviously we have got the commercial reasons for doing so which I have elaborated on earlier. We have also got agreement from the union through the past, through the 1999 EBA and re-ratified in the 2002 EBA. We understood that we had a requirement to consult with the union over that change and we believe we have done that. We believe that the issues that have been put to us do not preclude us from - well, those issues do not preclude us from going six plus two and that we believe that we have adequately addressed any other issues that the union did put to us that needed to, like the issue of how we are going to cover crib and how we are going to rotate people through reclaim. One other thing is that, you know, we think that if we go back to seven plus one we are just going to take ourselves back to where we were on 4 January and we are going to go through all this pain again and we are not prepared to do that.
PN551
All right. Do you have any other ideas to how you might get employees back to work?---Yes. Look, I think they - I would like them to come back to work as six plus two and I would like to, like any change, I would like to look at the issues, the process issues that come out of that and, you know, I would be happy to review the process, you know, have the employees working without prejudice to some extent and review that process at the end of some time in the future, after a significant period of time that gives us an ability to look at all the issues and try and address those issues.
PN552
When you say significant period of time, do you have any period in mind?---End of March. I mean you need enough time to be able to - as I said, we have got to train people in the reclaim function. We have got to get that documentation together. We have got to give everyone an opportunity who have worked in that area and I see that that's going to take, you know, at least three months. So I wouldn't think that we would be doing it and reporting back until, you know, the end of March.
PN553
Yes. Now, since I think those named meetings on the 17th and 21st, there have been other meetings, but since those meetings where the issues were raised have you been made aware of any additional issues that might require you to revisit moving to six and two?---No.
PN554
No more questions, Commissioner.
**** ANDREW JOHN PITTLE XN MR DALTON
PN555
THE COMMISSIONER: Thank you. Mr Wainwright.
MR WAINWRIGHT: Thank you, Commissioner.
<CROSS-EXAMINATION BY MR WAINWRIGHT [4.51PM]
PN557
MR WAINWRIGHT: Mr Pittle, can you outline for how many employees in the board line area are currently working under limitations due to WorkCover claims?
PN558
MR DALTON: Well, I object to that. What is the relevance of that question to a 127 application?
PN559
THE COMMISSIONER: What do you say?
PN560
MR WAINWRIGHT: I say that we have asked for standard operating procedures and all of the other things because we are concerned that the plant is running in an abysmal way with the seven/one system, the status quo. They are entering people left, right and centre. They want to ramp up the work that the people on the board line are doing by removing one of the people which makes it far more likely that even more people will be injured. So I am building that case by asking Mr Pittle what knowledge he has of injuries that have been sustained in that area.
PN561
MR DALTON: If I could respond to that, Commissioner?
PN562
MR WAINWRIGHT: Well, perhaps the witness could - - -
PN563
THE COMMISSIONER: Well, hang on a sec.
PN564
MR DALTON: Well, I would like to respond to that because in my submission the union hasn't put any evidence whatsoever in its case that draws a link between the type of work done on the board line and the number of people who are on limitations. So if Mr Wainwright wants to run a theory that moving from seven down to six in some way is going to exacerbate the situation with the board line he should have an evidentiary basis for doing that. He chose not to put any evidence in on that, drawing a link between limitations that where people receiving injuries at work in the board line or elsewhere and the link to the work that is being done. So this is just based on nothing and in my submission it is not relevant to the application.
PN565
MR WAINWRIGHT: Well, I was listening when Mr Dalton gave evidence and I recall him giving evidence on this particular point. He said that currently people are being injured on the board line and we are concerned about that. He talked at length about the safety concerns on the board line.
PN566
THE COMMISSIONER: I am happy for you to ask the question and get the answer but I am not sure that we need to take it much further than that.
**** ANDREW JOHN PITTLE XXN MR WAINWRIGHT
PN567
MR WAINWRIGHT: How many people - - - ?---Two.
PN568
Are working under limitations?---Two.
PN569
Who are they?---Mark Ebejer and Boris Bozanovski.
PN570
How many people are not working who have received injuries on the board line?
---How many people are not - didn't I just answer that?
PN571
No, you said there are two people who are working under limitations on the board line. How many people have been injured on the board
line who are off work?
---Well, it's the same - - -
PN572
MR DALTON: I object to that question as well, Commissioner. I mean it's open ended and presumably the board line has been operating for many years and it's just an open ended question as to has anyone ever suffered an injury on the board line.
PN573
THE COMMISSIONER: Are you talking about people who have currently a claim against the company?
PN574
MR WAINWRIGHT: Excuse me. Yes, I am talking about people who have put in WorkCover claims against the company that have been accepted. There are some who are working under limitations, so they are attending work and they have got this - - -
PN575
THE COMMISSIONER: So there is two of those apparently. Yes.
PN576
MR WAINWRIGHT: Yes, and there are some who are not able to perform any duties. So I am asking Mr Pittle who have sustained injuries on the board line.
PN577
THE COMMISSIONER: Who were on the board line. Are you able to answer that, Mr Pittle?---I think so, yes. Okay. Can you ask the question again?
PN578
MR WAINWRIGHT: How many people have sustained injuries on the board line?---How many people have sustained - - -
PN579
THE COMMISSIONER: No, no?---What time period?
PN580
That could be forever.
**** ANDREW JOHN PITTLE XXN MR WAINWRIGHT
PN581
MR WAINWRIGHT: Well, how many people are currently not able to attend work who have sustained injuries on the board line?---None. There are no employees who currently sustained injuries that preclude them from attending the board line.
PN582
Are you happy with the company's record in relation to occupational health and safety on the board line?---Yes. Like anybody's record, zero injury is our goal, but we have a very pro active injury management program, very pro active safety program. We are moving away from things like lagging indicators like lost time injuries and medical treatment injuries to more pro active measures such as safety conversations and things like that which are seen by the industry as being a better way to manage safety on the site, in industry, use of those sorts of things.
PN583
And has anyone raised concerns with you that the change from seven/one to six/two will make your safety record worse?---Say that again, please.
PN584
Has anyone raised with you concerns that changing the system on the board line from seven/one to six/two will make your safety record worse?---On what basis?
PN585
Well, I am asking if anyone has raised that concern with you?---Not to my recollection.
PN586
Did you receive correspondence from Mr Brereton on 22 December?---I will have a look if it in here. Tab 11. It starts with the Oxford Dictionary?
PN587
Yes, that's the one. Did you receive that document?---Yes.
PN588
Did you read it?---Yes.
PN589
Do you see on page 2 - - -
PN590
THE COMMISSIONER: Which tab is it we are looking at?
PN591
MR WAINWRIGHT: Sorry, Commissioner, it's at tab 11.
PN592
THE COMMISSIONER: Thank you.
PN593
MR WAINWRIGHT: Mr Piddle, do you see at page 2?---Yes.
PN594
The top sentence there?---Yes.
**** ANDREW JOHN PITTLE XXN MR WAINWRIGHT
PN595
Does he not state in fairly clear language that he has that concern?---That he cannot be sure that de-manning will not exacerbate the frequency of these occurrences?
PN596
Does he state in fairly clear language that he has that concern?---No, he states here that:
PN597
We cannot be sure that de-manning will not exacerbate the - - -
PN598
THE COMMISSIONER: Well, the words speak for themselves. You have highlighted the words. Can I just while you pause there, the question I have got to determine in relation to this matter currently is whether or not the stand downs as such constitute industrial action and whether or not an order will issue.
PN599
MR WAINWRIGHT: Yes, or the decision to pre-emptively change from the seven/one to the six/one system. We allege that both actions constitute industrial action.
PN600
THE COMMISSIONER: Well, it is that that we will have to deal with.
PN601
MR DALTON: Commissioner, perhaps if I could just respond to that at this point. The application is put firmly and squarely on the footing that it is the de-manning - sorry, the reduction in manning that is the industrial action. There is no reference to all stand asides as the issue. So Mr Wainwright - - -
PN602
THE COMMISSIONER: I take your point. No, no, I take your point. But I need to have something before me that addresses that issue. That is all I am highlighting, Mr Wainwright.
PN603
MR WAINWRIGHT: Indeed.
PN604
Mr Pittle, you stated earlier that the facts as outlined in D1 are true and correct, did you not?---To the best of my knowledge.
PN605
And you also stated earlier that Mr Flanagan informed you at the meeting on the 17th that he had a range of concerns and he listed five, standard operating procedures and so forth, is that correct?---Yes, that's correct.
PN606
Can I take you to page two - I withdraw that. Can I take you to page three of D1?---Mm.
**** ANDREW JOHN PITTLE XXN MR WAINWRIGHT
PN607
You will see there the outline of the meeting at 9 o'clock on the 17th?---Yes.
PN608
Isn't it the case that you state there that neither the employees nor Collin raised any issues about six/two?---That precluded us from moving to six plus two, correct.
PN609
No, no. I asked you do you not state in D1 which you have attested is true and correct that Collin did not raise any issues about six/two?---He stated that they were his issues about going to six plus two.
PN610
Well, why is it that you state that he raised no issues?---Because subsequent to that meeting, when we took that information aside and said okay, gave it some thought and have since responded to him that we don't see that those issues that he raised to us, as we did in a later meeting, actually preclude us from going to six plus two.
PN611
But isn't it the case that - - - ?---So it's on that basis that I said that he didn't give us issues about six plus two.
PN612
So you will judge what the issues are?---What do you mean?
PN613
What I mean is that Mr Flanagan raised issues with you. You state incorrectly and in a very misleading way that he raised no issues with you simply because you judged that they are not issues. That is what I mean?---Not at that point in time.
PN614
Well, you recognise that the description of the meeting on the 17th is inaccurate, don't you?---I recognise that the description of the meeting on the 17th is inaccurate?
PN615
Do you?---No, I say that it's accurate.
PN616
I will ask you again. Did Collin Flanagan raise the issues of the standard operating procedure, the job descriptions?---Yes.
PN617
The risk assessments?---Yes.
PN618
The training plans?---Yes.
PN619
The rotation plans?---Yes.
**** ANDREW JOHN PITTLE XXN MR WAINWRIGHT
PN620
Did he raise those issues?---Yes.
PN621
Do you say in your description of the 17th neither the employees nor Collin raised any issues?---Yes.
PN622
How can both be correct?---Good question, because we stated to Collin at the time that we don't see that the issue of the SOPs, the risk assessments, the job descriptions and what not are a six plus two issue. We agreed with him that we felt that they were an issue that we needed to address but we didn't see that they precluded us from going to six plus two. We felt that they were a separate issue.
PN623
So in fact your consultation consisted only of rejecting the issues that were brought to your attention?---No.
PN624
I put it to you that you rejected the issues that the union put to you, you never addressed them and your consultation was derisory?---I don't agree.
PN625
I put it to you that you were aware after the meeting of the 17th that there was no agreement between yourself and Mr Flanagan?---About what?
PN626
About the introduction of the six/two system?---So you are saying that we didn't agree about six plus two?
PN627
Yes?---That's probably right.
PN628
Is it not the case that you received correspondence from Mr Kingham on this issue?---I received a letter from Mr Kingham, yes.
PN629
Did Mr Kingham in that letter formally institute the disputes resolution procedure of your agreement?---I don't believe so, no. His letter says that he is happy to have discussions.
PN630
Perhaps I can take you to the letter at tab four of D1?---Okay.
PN631
Do you have that at front of you?---I have.
PN632
Do you see the second paragraph?---Yes.
PN633
Is it not the case that Mr Kingham says that he wishes to work through the disputes resolution procedure to overcome this dispute?---He says that he notes the parties are still in dispute over whether or not injured workers on a return to work plan who are unable to complete all duties should be counted for the purposes of the manning levels as mandated by the agreement, which is a separate issue. That was an issue for which we went to the Commission earlier that month.
**** ANDREW JOHN PITTLE XXN MR WAINWRIGHT
PN634
Yes, that is in the third paragraph. I asked you a question about the second paragraph. The second paragraph relates to the first paragraph?---Yes.
PN635
That talks about clause 15 which is the de-manning clause?---Yes.
PN636
So perhaps you can answer my question about the second paragraph?---So your question is?
PN637
The question is, is it not the case that Mr Kingham clearly institutes the disputes resolution procedure in that correspondence?---He says that he wishes to work through that procedure which is what I would expect that he would want to do. It's in our EBA.
PN638
Yes, it's in your EBA?---Yes.
PN639
And are you conversant with - well, first of all I withdraw that. Do you accept that your earlier answer that Mr Kingham had not instituted the disputes resolution procedure was incorrect?---Ask the question again.
PN640
MR DALTON: Can I just pick Mr Wainwright up on that because that's not the question that was put to him earlier. The first question was that Mr Kingham had formally invoked the disputes procedure and this is a different question. I just think it's important that he be consistent or clear in the question as a matter of fairness to the witness.
PN641
THE COMMISSIONER: Okay.
PN642
MR WAINWRIGHT: I don't understand the difference per se.
PN643
THE COMMISSIONER: I am following where we are going at the moment.
PN644
MR WAINWRIGHT: The question I asked earlier was did Mr Kingham formally invoke the disputes resolution procedure and the answer was no. I took the witness to the correspondence where that was clearly done. I am now asking him if he recognises that his first answer inaccurate.
PN645
THE COMMISSIONER: But that might be a matter for submissions.
PN646
MR WAINWRIGHT: Yes. It's also my question. My question is does the witness recognise that his earlier answer was inaccurate. He either does or he doesn't.
**** ANDREW JOHN PITTLE XXN MR WAINWRIGHT
PN647
THE COMMISSIONER: Well, his answer was that he didn't agree with you.
PN648
MR WAINWRIGHT: No, he hasn't answered that question?---Can you ask the question again?
PN649
You earlier stated to me that Mr Kingham had not formally invoked the disputes resolution procedure, did you not?---Yes.
PN650
Do you now recognise after refreshing your memory and looking at the document that your answer was inaccurate?---No.
PN651
So you are saying to me that Mr Kingham did not formally invoke the disputes resolution procedure?
PN652
MR DALTON: The witness has answered the question twice now and in my submission Mr Wainwright is well and truly bound by the answers that have been given and he has got to move on.
PN653
THE COMMISSIONER: I think it's clear what the position is and I am happy to hear you about that in due course.
PN654
MR WAINWRIGHT: Yes. Each of us are entitled to be wrong from time to time.
PN655
I asked you also if you were conversant with the contents of the disputes resolution procedure of the EBA?---Yes.
PN656
Are you conversant with the aspect that says when the disputes resolution procedure has been worked through that the status quo should
be maintained?
---Yes, it does say that.
PN657
You stated earlier that you had some meetings with Mr Flanagan, is that correct?
---Correct.
PN658
And you stated that Mr Flanagan had initiated discussions about financial payments, is that correct?---Yes.
PN659
I put it to you that discussions on financial payments were initiated by you?---I don't agree.
**** ANDREW JOHN PITTLE XXN MR WAINWRIGHT
PN660
I put it to you that you have made the comment on several occasions that Alan Evans is a deal maker?---I don't agree.
PN661
I put it to you that you have inferred on several occasions that the company would make a financial offer to the employees?---I have told the employees on a number of occasions that the company believes that it has paid for this change in the past two EBAs and that it has no intention to provide any financial compensation for doing so. In the early discussion we talked about the flexibility with regard to timing but the timing was tight.
PN662
Mark Ebejer is the occupational health and safety officer, is that correct?---He is one occupational health and safety officer.
PN663
And he is the occupational health and safety officer you referred to as putting in place some provisional improvement notices, is that correct?---That's correct.
PN664
Did you receive a request that Mr Ebejer be made available here today to give evidence?---He said he had to go to the union offices.
PN665
I am asking you if you received a request that Mr Ebejer be made available to the company to give evidence?---He said that he - yes, he said that he wanted to go to the - he was asked to go to the Commission, something along those lines.
PN666
What was your response?---My response was that we have got this process that you are working through with the VWA, that you are an integral part of that process and that we have got a deadline that we need to meet with regard to that process and if you're going to go to the Commission I can't stop you, but that you won't be paid and that I think you should ring the VWA officer and let him know what you're doing so that, you know, if we don't get this thing finished we have to some extent - he is fully conversant in the issues surrounding why we may not have got finished.
PN667
So you threatened to dock his pay if he attended the Commission today?---Well, I said that he was on a rostered shift today and as such he was due to be working for us and that required him to complete this process with the VWA.
PN668
And you talked about the VWA being involved in the process. Have they produced a field report?---They have.
PN669
Do you have a copy of the field report with you today?---No, I don't.
**** ANDREW JOHN PITTLE XXN MR WAINWRIGHT
PN670
In fact I think you do have a copy of the field report?---I do.
PN671
I knew I had seen it. And is it not the case that the company is committed to working through the issues that both on site representatives and union representatives have put to you?---What do you mean by that question?
PN672
Well, the company has committed to improving your procedures and practices in relation to the standard operating procedures, the risk assessments, the training plans, the rotation plans and the job descriptions, is that not correct?---Correct.
PN673
You are actually going to produce bits of paper that describe what should occur in these areas?---That's the intent.
PN674
Yes?---Accurate.
PN675
And I put it to you that it has never been suggested that the change to a six/one, six/two system should be delayed until the absolute
completion of that project?
---Say that again, please. Ask the question again.
PN676
Well, you are saying that the project that you are embarking upon is a large one?
---Yes.
PN677
I am putting it to you that Mr Flanagan in particular has raised these issues with you, but he has not suggested at any time that the change can't be instituted until all of the work is concluded, has he?---He hasn't said that specifically, no.
PN678
I put it to you that he specifically seeks that you demonstrate that you have thought through these issues before you institute the change?---We see them irrelevant to the change because it's a separate process that would occur whether we change or don't change, whether we work with one/seven, 10 or six people.
PN679
So is it fair to say, is it not, that the company seeks to implement the change without having considered or documented all of the
implications of the change?
---No.
PN680
You have failed to document your standard operating procedures in your current operation, haven't you?---No, that's incorrect.
PN681
Or produced for us the standard operating procedures for your current process?
---Yes, we have actually sent them to Mark's address.
**** ANDREW JOHN PITTLE XXN MR WAINWRIGHT
PN682
Well, I am asking you if you can produce them for us?---Here?
PN683
Yes?---Well, no, I don't have them here.
PN684
I put it to you that you don't have up to date standard operating procedures for your current operation?---That wasn't the question you asked me.
PN685
I put to you that you don't have up to date standard operating procedures for your current operation?---That is correct.
PN686
I put to you that you, in those circumstances, cannot understand the implications fully of changing your current system. You haven't caught up to where you are at right now?---We see that the current tasks that are being undertaken by the employees under a seven plus one scenario are the same tasks that they will be doing under a six plus two. If we saw that that was an issue, we shouldn't be running with seven plus one people.
PN687
That is because you have simply - - - ?---The only tasks we would see that do need to be considered as part of a six plus two change are the functions of reclaim. Once again, we don't see that that precludes us from going to six plus two. We just see that that precludes us from being able to use the two people to undertake reclaim activities until those risk assessments and training plans and job safety analyses have been done for that reclaim area.
PN688
THE COMMISSIONER: So do you include risk assessments as part of that view?---For the reclaim area.
PN689
You are saying that if there is a change for seven/one to six/two?---Yes.
PN690
There is no impact on the risk assessment?---That's correct, because the tasks are the tasks. They don't change.
PN691
Performed in a different way?---They're not performed in a different way.
PN692
For six people instead of seven?---Sorry. The tasks - - -
PN693
That suggests a different - - - ?---All right. The quantum of work, the quantum of work that needs to be done has changed over the course of the seven years through the technological improvements, but the safety of those tasks itself and the way that that's done doesn't change. I mean a manual handling risk assessment is still a manual handling risk assessment.
**** ANDREW JOHN PITTLE XXN MR WAINWRIGHT
PN694
Depending on the quantity of work is performing?---No, depending on the way that it's performed.
PN695
Yes, that's one issue?---Yes.
PN696
It can also be, I can drive one nail into the bench here and there is no big drama, but if I have got to do 100 in a minute I am going to be in trouble?---Yes, over a sustained period of time.
PN697
So it is the same task?---Yes.
PN698
Because I have got to do more there is a difference?---Correct.
PN699
That is all I am getting at?---Yes.
PN700
So it just occurs to me that in relation to risk assessments?---Yes.
PN701
Is it not possible that there might be something that could be different between seven and one and six and two? If the answer is no, well, that is cool?---Yes.
PN702
But it struck me that it might be?---Well, no. We believe that no, it's not. We believe that the amount of work that has reduced over that period of six years has got to the point that we can go from seven to six and the amount of work, the stresses on those people will continue with six.
PN703
It has been picked up by the technology?---Correct.
PN704
Okay.
PN705
MR WAINWRIGHT: When you broke up and the plant closed down for Christmas shut down on the 24th?---Yes.
PN706
How many people were working on the line?---There would have been - - -
PN707
How many people were working on the line in any one shift?---Eight. Eight in the board line.
PN708
And that was seven/one, is that correct?---Correct.
PN709
So you had seven people working on the line and one person in the reclaim, is that correct?---No, that person wasn't being used for reclaim activities. They might have been used for absenteeism, cover, training, whatever else.
**** ANDREW JOHN PITTLE XXN MR WAINWRIGHT
PN710
And the line is operating?---Mm.
PN711
And you have a size change or you have a system failure, how many people were there to deal with that?---Probably seven.
PN712
Probably seven. And is it not the case that under the new system the people who would be available to deal with size changes and with system failures?---Yes, yes.
PN713
Having to break a large pile of dried plaster, would be reduced?---Yes, it would be six.
PN714
So is it not the case then that that reduction means, logically, that the concentration of work for the people would be increased?---No, because it doesn't state that that six people have to get that pile of work done in the same amount of time. We understand that with less people it actually might take a little bit longer to do those things, but that's a commercial concern and not necessarily a - - -
PN715
And there would be no-one putting pressure on them to work faster?---Pardon?
PN716
There would be no-one putting pressure on them to work faster?
PN717
THE COMMISSIONER: Of course not. Of course not.
PN718
MR WAINWRIGHT: I am sorry. You answered a question earlier about you had two injured workers. Can you recap for me who those two injured workers were?---Yes, you said we had - that wasn't the question that you asked, so unless you want to ask the exact same question you asked because it wasn't something about injured workers that are on the line or something like that.
PN719
Did you mention two injured workers earlier?---I did.
PN720
Who were they?---That we have, Mark Ebejer and Boris Bozanovski.
PN721
Okay. Do you know Ali Cargala?---I know Ali Cargala, yes.
PN722
Thank you. Has he sustained an injury whilst working on the board line?---Over what time period?
PN723
I am asking you if he has sustained an injury while working on the board line?
---Yes, he has sustained an injury.
**** ANDREW JOHN PITTLE XXN MR WAINWRIGHT
PN724
Now, Eru McKay, do you know him?---Yes, I do.
PN725
Has he sustained an injury whilst working on the board line?---Yes, I do.
PN726
Has he sustained an injury whilst working on the board line?---Yes.
PN727
Dean Littler, do you know him?---Yes.
PN728
Has he sustained an injury while working on the board line?---Yes.
PN729
Daniel Culos, do you know him?---Yes.
PN730
Has he sustained an injury while working on the board line?---Yes.
PN731
You have said that you had seven employees who were prepared to work under the new system?---Yes, they have indicated that.
PN732
Who are they?---I am not going to give you the names of those people.
PN733
I am asking who they are?---I am not going to give you those names. I want to protect those individuals and I want to protect their right to privacy.
PN734
Commissioner - - -
PN735
THE COMMISSIONER: And in terms of what I have got to determine, who they are is not relevant.
PN736
MR WAINWRIGHT: No, but whether or not they in fact exist is relevant and I suspect that they don't exist.
PN737
THE COMMISSIONER: Well, that may or may not be right, I don't know. It's not relevant to what I have got to determine.
PN738
MR WAINWRIGHT: Well, what is being suggested by this witness is that it's a relevant consideration for you to take into account, that there are, according to him, employees who are willing to work under the new system. He was asked that question and he gave that - - -
PN739
THE COMMISSIONER: Can I satisfy you by saying it will have no relevance in the decision that I make?
**** ANDREW JOHN PITTLE XXN MR WAINWRIGHT
PN740
MR WAINWRIGHT: Yes, that satisfies me, Commissioner. No further questions.
PN741
THE COMMISSIONER: Mr Dalton, did you wish to re-examine your witness?
MR DALTON: Very briefly, Commissioner.
<RE-EXAMINATION BY MR DALTON [5.23PM]
PN743
MR DALTON: You were asked some questions by the Commissioner about risk assessments?---Yes.
PN744
And the possibility that a change from seven/one to six/two might raise some issues. When the issue of risk assessment was put to you in December did you consider what you might need to look at by way of risk assessment for six and two?---We did, but in doing that we looked at what were the tasks being performed, saw that those tasks were going to be the same tasks that are being performed with seven plus one and therefore had no relevance to the decision on whether to go to six plus two, from seven plus one to six plus two.
PN745
All right. The Commissioner said, of course, that with less people they may have more work to do. Can I just ask you this question, if the system fails and you have got six people and they have to all chip in and try and clean up, etcetera, what happens to the person who has been taken off the board line, so you have got two people excess, are they corralled into the reclaimed area or training, or are they able to be redeployed to deal with the exigencies?---They could be redeployed to deal with those sort of contingencies, as could people in the plaster mill, which is another functional area that would be operating at the same time, could also be deployed. Those are the sorts of things that we determine on an as needs basis when those situations arise.
PN746
Yes. And did you give thought to, perhaps apart from those contingencies, just within the more normal sphere of the process issues
that might come up, did you give consideration to any risk assessment issues from seven/one to six and two?
---Yes, we did and we actually - the outcome of that assessment was that while the tasks might take a little bit longer to complete,
they did not in themselves pose any new additional risks.
PN747
All right. When you say a little bit longer?---Yes.
PN748
How is it that less people are able to handle those tasks if they are going to take longer to perform?---Because there is a certain amount of work, you know, the pile is so big, say, and if you are shovelling sand from a pile and you have three people, you can usually get it done faster than what you could if there is only two people shovelling the sand and so on that basis.
PN749
All right. No more questions.
**** ANDREW JOHN PITTLE RXN MR DALTON
PN750
THE COMMISSIONER: All right. Thank you, I have got no questions. You are excused, thank you.
<THE WITNESS WITHDREW [5.27PM]
PN751
MR DALTON: That's the evidence of the company, Commissioner.
PN752
THE COMMISSIONER: All right. Having arrived at that point and having heard all of the evidence, what I would like to do is have a yarn with both you, Mr Wainwright and you, Mr Dalton, out the back for a minute about where we might go with all of this. I won't be going into - I want to float something with you having heard the evidence.
PN753
MR DALTON: I will just need to get instructions.
PN754
THE COMMISSIONER: Yes, that's fine. That's fine. Can I say what I want to put is not very complicated, all right.
PN755
MR DALTON: Well, Commissioner, the reason why I was just getting instructions is just in light of the ..... Commonwealth Bank decision obviously any comments made by the Commission at this advanced of this particular hearing would need to be put as a sensitive matter.
PN756
THE COMMISSIONER: I don't think I am going to upset you in relation to that judgment.
PN757
MR DALTON: Well, Commissioner, if you are content to put what you wan to say on transcript then that's fine.
PN758
THE COMMISSIONER: I just want to run something past both of you, but I would like to do that privately, just to get a sense of where we might be going, that's all.
PN759
MR DALTON: Well, I have got instructions on that. If it is directed at circumstances in which a return to work might be achieved and that is done on, you know, the usual without prejudice basis, then I have got instructions to hear what the Commission has to put on that.
PN760
THE COMMISSIONER: Okay. Are you happy to do that in a private setting or - - -
PN761
MR DALTON: Sorry, that was on the basis that it was to be in private, yes.
PN762
THE COMMISSIONER: And I take it you are okay with that, Mr Wainwright?
PN763
MR WAINWRIGHT: I am sure I don't need 10 minutes to tell you that, yes, I am happy with that arrangement.
PN764
THE COMMISSIONER: Come out the back for a minute. We will adjourn just briefly.
<SHORT ADJOURNMENT [5.32PM]
<RESUMED [6.12PM]
PN765
THE COMMISSIONER: We will take some final submissions. Mr Wainwright.
PN766
MR WAINWRIGHT: Thank you, Commissioner. Put simply, the CFMEU submits that jurisdiction exists for you to issue orders pursuant to section 127. We say simply that the company is engaging in industrial action and it has been pointed out to you earlier today, Commissioner, that in our application in the grounds we have said that the conduct that we were complaining about at (d) was the unilateral decision to implement the change, there is a typo there, on 4 January 2005.
PN767
What the evidence has shown clearly is that flowing from that unilateral decision is that the workforce wasn't prepared to work under the existing system and they made themselves available to work under the existing system and the company made a second decision not to offer work under the existing system of seven/one and we allege that then standing down employees who were prepared to work under the agreement was also unlawful industrial action, and in relation to those two areas of industrial action we seek that you grant orders.
PN768
We have in our application sought an order for a month. I do seek to amend that. We have had some - I withdraw that. What we seek is that an order be granted that the company cease to engage in their industrial action between now and such time as the Commission as it is currently is able to hear a report back. What that would mean in practice is that the disputes resolution procedure of the agreement is in force and the status quo system is worked from the first available opportunity, which I suspect would be 6 o'clock tomorrow evening, and that because, Commissioner, there is a shift that would start at 6 o'clock, I suspect that it would not be logistically possible for the management to pull that shift together.
PN769
I may be wrong and obviously, as I stated, employees are available to work under the seven/one system, but regardless, we say that the order should be that the status quo remain and people work under the seven/one system until such time as we are able to come back to the Commission as it is currently constituted, which I would foresee would be about the 24th or 25 January. So we seek an order that is lesser than that that we sought in our original application. We submit that this industrial action is happening and has been happening since 4 January. We submit that you can rely on the fact that the industrial action will continue, that being Mr Pittle's evidence, that he wants to have the board line running in a configuration of six plus two and that he will consider no other consideration.
PN770
If you accept our argument that the unilateral change to the six/two system was industrial action and that the stand downs were industrial action, then Mr Pittle's evidence is every clear that the company intends to continue to engage in the industrial action, but for an order of the Commission. The CFMEU brings the application. We have standing to bring the application. We are a party to the certified agreement. We represent employees who are covered by the certified agreement and we are entitled under our rules to represent those employees.
PN771
On the evidence it is important to note that we are the applicant, not the individual employees on site. The reason why that is important, Commissioner, is that it's the CFMEU who corresponded with the company on 14 December and official triggered the disputes resolution procedure and stated specifically that we believe that whilst we were working through that procedure that the status quo should remain. We believed that that was occurring and that the parties would be attending the Commission today, 12 January, as an end point to that. We did not expect that having triggered the disputes resolution procedure that this meant that the change could be pushed off ad infinitum.
PN772
We understood in entering into the agreement that the company did have the ability to change the manning levels. We understood that at the time we entered into the document. The document was explained fully to the employees and the employees understood all that, and all of the requirements of clause 15 having been met, then the change would be instituted. What we simply said about the correspondence we had received from the company was, we have a dispute about the implementation of the change and we want to proceed with that dispute in the appropriate manner, again under the enterprise agreement.
PN773
It is inconsistent for the company to say to you that you should concentrate on clause 15 of the agreement and other clauses of the agreement but ignore the very clear intent of the disputes resolution procedure in the same document. We say that it sets a very bad precedent, that if a disputes resolution procedure encourages parties, or compels parties to do certain things and specifically things that involve the Commission, that parties have been allowed to ignore those obligations and go on their merry way.
PN774
I have had the fortunate experience of hearing applicants complain many times that they believe my organisation ignores disputes resolution procedures, so we find it very interesting in circumstances where we state very clearly in correspondence that we wish to trigger the disputes resolution procedure, we wish to work within the disputes resolution procedure, the companies then the feel that they can engage in industrial action without fair of sanction and obviously this is a development that we will observe with great interest. The company may be setting a very interesting precedent.
PN775
So we say, Commissioner, that industrial action as defined by the Act is occurring in these circumstances. I don't need to take you through the provisions of section 4.1 of the Act. We say that what is occurring here clearly meets that definition. We say that preventing the employees from doing their work is industrial action. I want to hand up a decision by Commissioner Whelan to you, Commissioner.
PN776
THE COMMISSIONER: Thank you.
PN777
MR WAINWRIGHT: Commissioner, in this case the Commissioner was considering an application against the company pursuant to section 127, similar to the circumstances here. It was put to her in submissions, in pages three and four, that industrial action - I am reading now from the paragraph at the bottom of the page, above what looks like (a) and (c) there on page three of 12. I am not where (b) went. It was by Mr Friend that:
PN778
The industrial action being taken by the employer constitutes breach of awards and undertakings, matters which the Commission has historically regard as very serious.
PN779
And we say that similarly here, the industrial action that is being taken is in breach of the agreement and that the Commission has to take that matter seriously. This is a document certified by the Commission and given ..... and the Commission must take a strong stand when that document is breached. I just also want to take you briefly to page seven, Commissioner, where the learned Commissioner Whelan concludes at the paragraph under the replication of section 4:
PN780
It has been accepted by this Commission in a number of cases that employers can engage in industrial action.
PN781
I think that's a concept that is well accepted through the Commission now and one that I won't trouble you with further. I would like to give you another decision by Senior Deputy President Lacy if I can. We again rely on this decision, Commissioner, in relation to the power of the Commission to make orders against a company, but we want to point you in particular to paragraph 37 on page seven. This matter involved a particular individual worker who performed cleaning duties. It is the last sentence of paragraph 37 that we are interested in, Commissioner, where the Senior Deputy President says:
PN782
There is no evidence of any reason at all for refusing to allow Ms Ester to perform her work.
PN783
And we say that similar circumstances exist here, that the evidence shows that employees were prepared to perform their work in accordance with the certified agreement on 4 January. They sought to do their work in accordance with the certified agreement and Mr Pittle has stated clearly that they were given the option of performing work on a different basis, on a basis that came down in the form of a fiat by the company. We say that it's akin to the union in certain circumstances saying we have a clause in our agreement that says there has to be a ratio of tradesmen to apprentices, which was quite a common clause in days gone by, and the employer in certain circumstances isn't meeting that ratio, they're not employing enough apprentices, and we give you three weeks notice that we are going to have the requisite number of apprentices on the job.
PN784
So we are going to get an extra two or an extra three people and they are going to be employed on the job from that date and you have got three weeks notice, and ignore the fact that the three weeks notice spans the holiday period. You have been consulted with, this is your consultation, and we rock up and say then at the conclusion of the four weeks, these extra apprentices are working, that's what the agreement says that we have the power to do. Would that be seen to be industrial action? Would an employer simply accept that dictation from us? I don't think that they would and I think that what the company is doing here is exactly that. They are saying we have the power in the EBA to change the manning levels and on that they are correct.
PN785
They are saying, and we are telling you we are going to do it and we are calling that consultation. We say that there hasn't been consultation. We say that when valid issues and concerns were raised about the change that they were dismissed out of hand. And Mr Pittle has a pithy phrase, that they weren't show stoppers. I have heard this a little bit over the last couple of days. Apparently the list of five issues in Mr Pittle's opinion weren't show stoppers. I think it's entirely valid for him to have that opinion about the five issues, but what the applicant should be able to expect when they bring up issues with concern in consultation with the company is that they be taken seriously and they be addressed.
PN786
We said that in circumstances where you have a board line that runs in a particular way now and you want to change that, you want to concentrate the work for the people who are working on the board line, then you have to consider the standard operating procedures, the risk assessments, the training plans, the rotation plans and the job descriptions. You have to consider those. The company has said, well, we have to consider those anyway so it's not a consideration for the change. They have ignored the fact that they haven't considered them for ever knows how long, that they have conceded to you that their house isn't in order and they need to fix things up.
PN787
They have said because we have been so recalcitrant in the past it's not really an issue for us to consider now in the change. Really what they are saying is, they have got a V6 car that doesn't work, that's dangerous at speed, and now they want a V8 car and they don't want to consider the fact that the engine isn't working. They don't want to consider that there are implications in the change in relation to things like the standard operating procedure. We have said to them, yes, you have the ability to demand, what we want you to consider is the implications in relation to these things of the new system, we want you to demonstrate to us that you have considered them appropriately. And they never demonstrated to us any such consideration because in the evidence that's before you it was the opinion of the company that they weren't show stoppers.
PN788
So what we consider issues, they have never considered issues and it is reflected in D1. It is reflected in D where Mr Pittle attested that it was true and correct, on page three, the meeting on the 17th that:
PN789
Neither employees, nor Collin raise any issues about six plus two.
PN790
He then gave evidence that yes, the list of five issues was raised. Mr Flanagan gave evidence that he raised the list of five issues. Mr Brereton gave evidence that he raised the list of five issues. The company gives a misleading document to the Commission and to the applicant. They then attempt to amend the misleading document, but the particular provision that was on its face inaccurate isn't amended. It's not said, well, they didn't raise any issues, they did talk about these five things but we didn't think they were issues. So that's why we say consultation hasn't occurred and it was clear to the company and it's clear on the evidence that the parties were not in agreement about the implementation of the change.
PN791
The issue is the company's unilateral decision to go ahead and do it anyway and we argue that that decision is industrial action and gives rise to you exercising powers. I have another decision that I wish to give to you, Commissioner. Commissioner, this fire fighters decision by Commissioner Hingley is in my opinion a very persuasive decision based on a fact scenario that's very close to the one that we are considering today and just by way of background, it really talks about different employees within the fire fighting service and whether or not employees can be directed to relieve at other stations and apparently in the fire fighting service there are some fighters who can relieve and some who can't and the employers decided to direct to some fire fighters to relieve in other stations who had traditionally been seen as those who couldn't be so directed.
PN792
So I say analogous with what is occurring here and some of Commissioner Hingley's comments at page 11 are helpful, at the bottom of page 11 where he says:
PN793
The CFA and a public spokesman talked about the need to change existing provisions to gain more flexible and...(reads)... in any event - - -
PN794
If I swallow this fly I am not going to be happy, Commissioner.
PN795
THE COMMISSIONER: It's all right, it just came from here. I have been having trouble too.
PN796
MR WAINWRIGHT: At least it has got taste.
PN797
THE COMMISSIONER: I can safely say there are no flies on me now.
PN798
MR WAINWRIGHT: So I think I was at the bottom of page three where the UFU was seeking an order that would preserve the status quo and that's simply what we are doing here, Commissioner. But we make clear that we don't seek to preserve the status quo forever. We recognise the provisions of clause 15 of the certified agreement. We consider ourselves bound by the provisions of clause 15 of the certified agreement, but we think that it needs to be implemented correctly and fairly and we think that the issues that we put to the company need to be considered properly. Commissioner Hingley concludes at page 11 in the second paragraph of page 11, Commissioner:
PN799
That the unlawful standing down or standing aside without pay in this matter constitutes ...(reads)... on the performance of work.
PN800
And we say that employees having attended on 4 January made it clear to their employer that they were prepared to work under the terms of their certified agreement and being stood down because they weren't prepared to work under the heinous obligations that the company put them, are in exactly the same circumstances, that their standing down is unlawful and that they should have the protection of an order from the Commission. Commissioner Hingley says at the top of page 10 of 11:
PN801
Soon after certification it became apparent that the parties did not agree.
PN802
Similarly in these circumstances Mr Kingham's letter made it clear that the parties did not agree. And Commissioner Hingley was disappointed
that the matter did not proceed to conclusion as intended by clause 48 before and instead of stand downs occurring and employees
losing wages. And we echo what he says. We are disappointed that the company didn't exercise some patience and wait for the hearing
that had been listed in the Commission for the 12th and certainly
Mr Flanagan went on his annual leave at the shut down safe in the knowledge that the issue was being dealt with in the appropriate
manner and we could discuss things when we got here with the Commission.
PN803
He knew that we didn't necessarily have to end up agreeing but at least the disputes procedure was doing its job. Why then the company decided unilaterally to try and enforce their view on the 4th remains a mystery. I should at that point, Commissioner, just hand up a sheet that is an excerpt of a decision of Commissioner Smith and I think it's fair to say that this excerpt of a decision of Commissioner Smith encapsulates what we say about the company's activities in relation to this matter, that having had the announcement from Mr Pittle at the consultative committee meeting on the 9th and in correspondence to Mr Kingham on about that the 9th, that they intended to make the change.
PN804
The company seeks to put to you to influence the exercise of your discretion that they have consulted with the union and we say that Commissioner Smith is perfectly correct, that there has been no contribution to the decision making process by the applicant because the issues that we saw as being relevant and we continue to see as being relevant in relation to the change were dismissed out of hand. The consultation procedure never got off the ground and you can't call an announcement resulting in an eventual decision consultation. What would have been consultative is for the company to have prepared some response to the list that they were given by Mr Flanagan in the meeting on the 17th and told us their views in a measured and documented way on those issues and the implications for those issues of the change from seven/one to six/two.
PN805
They didn't do that because as I have stated, they never saw them as being issues. So the consultation procedure is skipped over and they want the applicant to accept that. Commissioner, we say that these are circumstances in which you should exercise your discretion. We rely on Coal and Allied, which, Commissioner, I don't think it is necessary to provide you.
PN806
THE COMMISSIONER: No, it's all right.
PN807
MR WAINWRIGHT: I think another advocate took you through some of the aspects of Coal and Allied this morning.
PN808
THE COMMISSIONER: Yes.
PN809
MR WAINWRIGHT: For reasons unknown to me. But we say that you should be guided by the objects of the Act and an understanding of the power in effect of the exercise to the scheme of the Act and certainly here we say that the objects of the Act are central to your consideration. They put the objects of the Act up the front of the Act and I think that's for a particular reason and that's so that people will think about them a little bit and we want to point you in particular, Commissioner, to 3(e). It talks about effective agreement making and ensuring that parties abide by awards and agreements that apply to them.
PN810
Well, we believe that that should be done here and we believe that the certified agreement states clearly that once it has been triggered it should be respected and that the status quo should remain until the parties agree otherwise or until the assistance of the Commission has been effected, and that obviously has not happened here. Commissioner, we rely on the evidence of Mr Brereton as to the happening of the industrial action. He stated clearly that he attended the site and was prepared to work under the provisions of the certified agreement and he was told that he worked under the system that the company proposed, that he would be stood aside.
PN811
We have 19 employees all in the exact same circumstances, all of whom are being denied the ability to earn income from 4 December and we say that this is a serious matter that should be dealt with by the Commission urgently and that the common sense outcome is that the status quo, the seven/one system be enforced, that the Commission's powers be exercised to ensure that all industrial action ceases immediately and that the company do what they should have done from the 17th and that is, have a fair dinkum look at the issues that Mr Flanagan brought to their attention and consult with us in an appropriate way and therefore meet their obligations under the EBA.
PN812
Relevant to that consideration, Commissioner, clearly is the conduct of the parties and what has been clear from the evidence of the company is that they are taking no steps whatsoever to ensure the work resumes at the plant. The union has taken a highly unusual step of lodging a section 127 application and I can count on one hand the number of times I have seen unions lodge such applications and certainly in my time with CFMEU I can't recall doing this before. So it has fallen on us to do something to attempt to get people back making plasterboard, which would seem to be the purpose of building a very large facility down at Port Melbourne.
PN813
But what has the company been doing since 4 January? Precisely nothing. They are not making anything. Mr Pittle has given evidence that the board line hasn't worked. He was asked how do you see the board line working and he has no answer. So the conduct of the parties is essential to your consideration of the exercise of your discretion and it seems to me that the only way work will resume at the site is if you do exercise your discretion and issue orders because the alternative would be that you find that you don't have jurisdiction and you therefore don't issue orders, or you find that you do have jurisdiction and you don't wish to issue orders, all of which is certainly within your purview to find, and we leave here today and we are back in exactly the same place.
PN814
We have the company saying we want to build board, we want to manufacture board with six/two and we have the employees saying, well, we believe we have the right under the agreement to work under the status quo system of seven/one and they are diametrically opposed. What do we do about that? What do we as players in the industrial relations system do about overcoming the dispute? And Coal and Allied talks about exercise of powers to deal with the action and we believe that that is what you should do. We say that the issuing of orders under section 127 is a serious step. It's a reflection of the seriousness of the situation that we have had to bring this application, that although it's unusual to seek orders under this section against employers it's clear that you have the power to do so.
PN815
Just to finally illustrate that point I wish to hand you another decision, which is a full bench decision, Commissioner, in relation to a decision that you made. Commissioner, we have been - - -
PN816
THE COMMISSIONER: They often come back to haunt you.
PN817
MR WAINWRIGHT: Well, I try not to put anything on paper but from time to time we have to and I suspect that this transcript might come back to haunt me before too long. Commissioner, we have been endeavouring in this application over the last 48 hours to find some way, any way to effect a return to work in a manner that respects the agreement that the parties reached and that respects the agreement that the Commission certified. Now, we say that the company's reliance on their ability under clause 15 to change the manning levels has blinded them to their responsibilities in other areas of the agreement.
PN818
We say that a balance needs to be achieved between the different provisions of that agreement and we say that that balance can be achieved by effecting the consultative procedure properly and we say very clearly and we have not been shy about this point. We say that that need not delay the implementation of the manning level change for a lengthy period. We believe that the company intransigence in relation to that serves as further proof that it's their intention to engage in industrial action and it's their intention to cease production at the site. We believe that that's their motivation. This is a manufactured situation so that they have a reason to stand people down.
PN819
If that wasn't their motivation we ask the question why is it that they have not taken the opportunity of solving the problem, why is it that they have not done anything about achieving a resumption of production at the site. Commissioner, we seek that you issue orders in relation to this application.
PN820
THE COMMISSIONER: Thank you. Mr Dalton.
PN821
MR DALTON: Commissioner, it's the company's submission that you don't have jurisdiction to make any orders and that the proper course here is to dismiss the application. Commissioner, as you know, the Commission is required to deal with these applications as quickly as possible and we would say that the proper course is that a decision dismissing the application is done with that requirement in mind. Now, you are aware of the jurisdictional requirements of the elements that need to be satisfied. Firstly, there is the industrial action that has to be happening, threatened, impending or probable, and then there is these other two elements. The first one, that the alleged industrial action be in relation to a dispute or in relation to work that is covered by a federal instrument and then the third element is that the applicant has standing.
PN822
In relation to the second and the third elements we don't take any issue with that. Our issue is directly in relation to whether
the conduct of the company constitutes industrial action. Now, when you look at the union's application, Commissioner, it sheds
little light on the basis upon which the application is brought. If I could direct the Commission's attention to the application
and firstly the proposed order in the application, which I think starts from the first page of the application. You will see when
you look through it that it's aimed fairly and squarely at the conduct of the company in reducing the number of employees from seven
to six in the board line and the order sought is that that stop or discontinue, at least until
11 February 2005. I think Mr Wainwright has amended that today to say until the Commission can next report back.
PN823
THE COMMISSIONER: Yes.
PN824
MR DALTON: But if you have a look at it, the definition of industrial - sorry there is a direction that industrial action cease and be discontinued and then you will see industrial action at part 3.2 as:
PN825
Reduction of manning on the board line at the Port Melbourne operation.
PN826
Now, there is no reference to stand asides or stand downs. This is about reducing from seven to six and the only exception to this direction is at 4.1 which deals with occupational health and safety. I am not sure how that would operate in practice here, but in any event, that's the only exception. So there is not an exception cast on, for example, consultation procedures having been completed or something like that. It's just a prohibition on reducing the manning for a defined period of time. If you have a look at the grounds in support of the application, that is on the next page, they don't set out in comprehensible way how it can be said that what the company's conduct can constitute industrial action under the definition of section 4 of the Act.
PN827
Further, on their face they don't support the order that is sought. If you have a look at paragraph (a) of the grounds there is a recognition and acceptance that the certified agreement allows that clause 15 for changes to manning levels. Paragraphs (b) and (c) go on to refer to the exchange of correspondence which I think were marked as exhibits W1 and W2 respectively, and then paragraph (d) alleges that the company, quote:
PN828
Made a unilateral decision to implement a change on 4.1.2005.
PN829
Then paragraphs (f) and (g) attempt to tie that into the definition of industrial action. So what is complained of, Commissioner, is what appears to be a failure to comply with the consultation/disputes resolution procedure in the agreement because the only reference you get to conduct here is in paragraph (d) which is this unilateral decision to implement the change. That's the application that was brought and the grounds are in support of it. Now, those grounds have been developed somewhat but I think what we can get from the last day or so in the evidence and the submissions of Mr Wainwright is that it's about what they see as a lack of consultation.
PN830
They don't think that the consultative processes have been exhausted. They don't believe that the company has fully considered the issues that the issue has raised. So that is the basis upon which this application is brought and I think it is important to characterise the conduct that they are saying constitutes the industrial action because it's impossible to decide whether there is industrial action here without characterising what it is the union is saying is the company's conduct. If you have a look at the definition of industrial action and if you have regard to the grounds in support of the application it seems to me that limbs (a) and (b) are the ones that you have to look at. So section 4, definition of industrial action, and it has got a number of paragraphs. Paragraph (a):
PN831
The performance of work in a manner different from that which it is customarily performed or the adoption ...(reads).. in the performance of work.
PN832
If you have a look at paragraph (g) of the grounds in support, that appears to be a limb in the definition that the CFMEU relies upon. Now, you need to break that paragraph down to work out what is involved. Now, firstly, it has to involve either the performance of work in a manner different from that in which it's customarily performed, or secondly, there has to be the adoption of a practice in relation to work. Now, if you go to paragraph (g) of the grounds in the application you will see that they are referring to the performance of work. So they are relying on aspect.
PN833
Importantly and secondly, it has to result in a restriction or limitation on, or a delay in the performance of the work and then the rest of that limb really is just, I think, linking the subject matter of section - or anything that relates to industrial action to industrial instruments or industrial dispute. So we don't need to deal with that any further. Now, in my submission the reliance on the performance of work aspect is completely misconceived and they won't be able to rely on limb (a) of the definition of industrial action. The reason why I say that is that an employer doesn't perform work and there are cases that make that quite clear.
PN834
If I could hand you a bundle of cases because I am going to be referring to some as we go through. Do you have the decision of Senior Deputy Kaufman?
PN835
THE COMMISSIONER: Yes.
PN836
MR DALTON: CPSU v Telstra.
PN837
THE COMMISSIONER: Yes.
PN838
MR DALTON: Paragraph 21. Perhaps I will leave you to read that, Commissioner, but you will see towards the end of that paragraph he makes it clear he doesn't accept that the employer performs work.
PN839
THE COMMISSIONER: Yes.
PN840
MR DALTON: And paragraph 22. Now, since that decision, Commissioner, there has been the decision of the Full Bench of the Commission in The Age Company Ltd v AFMEPKIU and CEPU. Hopefully that's the next case that you have got in your bundle.
PN841
THE COMMISSIONER: Yes.
PN842
MR DALTON: It's print 946290. Paragraph 16. I think the third sentence makes that proposition very clear because it says:
PN843
The first element, which is concerned with the way in which work is performed, involves action by an employee or employees.
PN844
And it goes to reach the relevant conclusion in that case.
PN845
THE COMMISSIONER: Yes.
PN846
MR DALTON: So we rely on those decisions for the proposition that you can't rely on that aspect of the limb of the definition of the performance of work aspect in paragraph (a) because an employer doesn't perform work. Now, the CFMEU has tried to get around that conceptual hurdle by throwing in some words that you won't find in paragraph (a) of the definition. If you have a look at paragraph (g) of the grounds in the application you will see it starts:
PN847
The conduct of Booral results in the performance of work different from that in which it's customarily performed.
PN848
They don't allege that the company is actually performing work. They are alleging that the conduct results in the performance of work in a manner different to which it is customarily performed. You won't find those two words, results in, in the definition of paragraph (a). So they have tried to get around the problem by throwing in those words and that's where you will see that you just can't rely on paragraph (a) of the definition. So that's the first aspect of paragraph (a). I mentioned that second requirement that even if you can rely on the first element you have to show that it results in a ban, a limitation or a delay in the performance of the work, so let's just put aside the way that the CFMEU has cast its case just to illustrate the point.
PN849
Let's assume for the moment that the company's conduct in moving from seven to six involves the performance of work in a manner that's different to which it's customarily performed. The evidence doesn't show that that's going to result in a restriction delay in the performance of work, etcetera, because the evidence shows that the same work is being performed. I don't need to take you to that detail, Commissioner, that we have heard plenty of evidence about in the last day or so. So that deals with paragraph (a). In paragraph (b) of the definition of industrial action it says:
PN850
A ban, limitation or restriction on the performance of work or on the acceptance ...(reads)... or AWA.
PN851
Etcetera. Now, there have been previous decisions of this Commission that have regarded this paragraph as being capable of applying to employer action. So it's possible for employer action to constitute a ban, limitation or a restriction on the performance of work. So the conduct of an employer not in itself the performance of work could be a ban, limitation or a restriction on the performance of work and that appears to be the CFMEUs argument when you look at paragraph (g) in the grounds in its application. Now, again, in my submission that argument is misconceived as well because the company's through its move from seven down to six is not banning, limiting or restricting the performance of work because the work still needs to be done, for the reasons that I have mentioned just before.
PN852
You have got an amount of work that needs to be performed in the board line, there being efficiencies over the last few years and they don't need seven to work there any more, they need six. Importantly, there aren't any redundancies as a result of this change. You have been referred to some cases by Mr Wainwright, in particular the decision of Commissioner Whelan, also the decision involving the Esso where the cleaner - sorry, the Skywest decision. Commissioner Whelan's decision involved a redundancy, termination of employment, and there has been previous decisions of the Commission to say that a termination of employment in some cases can constitute industrial action, although you have got that Full Bench decision in the Age that decided that it wasn't in that case.
PN853
In the Skywest case there was actually a refusal by the employer to allow the cleaner onto the site to perform her work, following a decision of the Commission to reinstate her to her job. Now, those are cases where the employer has been found to have engaged in conduct that is effectively a ban on the performance of the work. It is nothing like that in this particular case because all you have got is the work needs to be performed, the company is just saying that instead of seven at the board line on any one particular shift we need six, but we still need all of you people to perform work, the same work needs to be performed, as we needed it done in December, it needs to be done in January.
PN854
So you can't say that moving from seven/one to six/two involves any relevant restriction on the performance of work. The notion that a breach of the certified agreement, let's assume for the moment, we don't accept this of course, but let's assume for the moment that the company hasn't complied with its obligations under the certified agreement through consultation or disputes resolution. There are a number of cases which support the proposition that a breach of a certified agreement in and of itself does not amount to industrial action. You have to identify a relevant ban, limitation or restriction on the performance of work. So where is the ban, limitation or restriction on the performance of the work that needs to be done in the board line area, or in reclaim or elsewhere?
PN855
There isn't one and simply pointing to a breach is not good enough for a section 127 application. There's another forum where if they want to prosecute for a breach that's where it is to be run. You can't use the Commission as a means by which to get effectively injunctive relief in circumstances where you can't get it from the Federal Court for breach of a certified agreement. Those cases are in your bundle as well. I don't propose to take you to the detail of them but I will just note there's the decision of Senior Deputy President Watson in the Carter Hold Harvey case. I refer you in particular paragraph 31. That was the first decision that made that clear. Then Deputy President Ives in National Union of Workers v Graincorp.
PN856
Paragraphs 32 through to 44 he deals fairly comprehensively with that issue. Commissioner, again, given the hour I don't want to take you through the detail of this but perhaps if you could read and consider that decision in Graincorp because Deputy President Ives deals with very similar issues. In that particular case the NUW argued a number of points, one of which was that the reduction in manning was contrary to the provisions of the certified agreement and meant that the conduct was industrial action and that argument was rejected for the reasons that I am putting to you. So we rely very much on the decision on the decision of Deputy President Ives in Graincorp.
PN857
In any event, we submit that there hasn't been any breach of the certified agreement and I have already referred to you in opening yesterday of the provisions that give clear rights to the employer to reduce manning at clause 15, to make changes at clause 22, subject to an obligation to consult where there's a significant change or a major change and those clauses are at 30, paragraph (g) and clause 31. The process of consultation doesn't require agreement. It may result in agreement and hopefully it does more often than not, but it doesn't require agreement before change can be made.
PN858
In my submission it requires the employer to give a reasonable opportunity to the union and employees to give feedback on the proposal, feedback which may be that the proposal shouldn't go ahead or that it should be adjusted in some ways. That reasonable opportunity clearly involves an obligation to provide information. You will see from exhibit D1 and the evidence of Mr Pittle is that information was provided at an early stage. He provided reasons for it. He also provided a question and answer document which succinctly put the reasons for the change and what he was proposing to do. So the information was there. Mr Brereton accepts that he used that information to prepare the documents that he produced to raise issues.
PN859
We know from the evidence of the unions that the issues that they raised are issues whether seven people worked directly on the board line or six. The only issues that were specific to a move to a six and two were the issues of rotation into reclaim or training, etcetera. That issue was raised and the company responded to that and said that the fair thing to do is that everyone rotate and I think there was an issue about meal breaks raised and the company responded to that, as to how it saw the meal breaks working, and there was the question of training and how training would be scheduled in light of the fact that there would probably be more people available to be trained, if there were two people rotating through rather than one, and the company said that it is looking at developing the training throughout the course of the year.
PN860
But none of those issues in the company's view meant that six and two had to be put on hold until those things were locked in and bedded down and in my submission the evidence showed quite clearly that there weren't any show stoppers. There weren't any issues that were raised that on a reasonable view required the company to sit back and wait or revisit its proposal. There was the issue of risk assessments as well. The Commissioner asked some direct questions of Mr Pittle about that and Mr Pittle gave answers. In my submission that showed that he had thought through those issues carefully. He had looked at it in terms of the tasks that needed to be performed. He formed the view that based on that part of the analysis you didn't need to - sorry, there wasn't any difference whether seven people were working or six.
PN861
On the issue of whether there was a safety issue or a risk assessment required because less people might be doing more work, he gave detailed answers on that and he said he did respond to those issues to the unions. The evidence shows that no fresh issues have been raised since Christmas. There were meetings I think on the 22nd and the 24th. No fresh issues have been raised since Mr Brereton's second document which I think was handed on 22 December. So in light of that the company thinks that it has exhausted the consultative processes and it has considered them in good faith and based on that it proposed to move ahead on 4 January which it did.
PN862
In relation to the disputes procedure, again I don't want to spend too long on this because as I have said, I don't think a breach of a certified agreement in and of itself provides any basis for a section 127 order. But the union is relying on a letter, W2, as formally invoking a disputes procedure. We would simply say that there is real doubt about that because in our submission it's a general expression of an intention to work through procedures in the agreement, then it goes to refer to particular disputes. It's our submission put succinctly, that consultation had to occur, it occurred shortly after that letter. If there were concerns or issues that the union had that didn't think were being adequately addressed over the next couple of weeks leading into Christmas it had the opportunity to raise it and escalate through the disputes procedure by notifying the Commission and it chose not to do that.
PN863
It says, well, we are relying on the company's section 99. Well, the company's section 99 on its face was quite clear. It was directed at what the company saw back on 17 December as a failure of the union to engage in consultation. Exhibit D1 shows that the unions did engage in consultation between the 17th and the 22nd, 23 December and the company's 99 was withdrawn on that basis. It's our submission that clause 17 of the disputes procedure is not something to be used by a party simply to forestall the substance of the issue that might be in dispute. The procedures have to be invoked and progressed and they have to be done quickly.
PN864
Just because the union thought that things might be better dealt with, you know, when they get back from the Christmas/new year break
and on and from
10 January doesn't mean that the company has to wait for that. The issue is whether reasonable opportunity for them to put up the
issues that they had was given and in my submission that opportunity was given. Now, for those reasons, Commissioner, there is nothing
in the definition of industrial action either under limb (a) or limb (b), which are the two limbs relied upon, that is going to offer
any basis for the Commission to be satisfied that there is industrial action occurring. It's just simply misconceived in our respectful
submission.
PN865
If you are against me on that, then I would say briefly in relation to discretionary considerations the following. There is no evidence that the proposal is anything other than a genuine commercial decision. In fact the evidence is that that's exactly what it is. Mr Pittle gave some detailed about that and that hasn't been challenged. There are no redundancies arising from this. In our submission there's no prejudice to employees in their employment as a result of the move from seven to six. The employees remain on strike at this stage and obviously that situation is regrettable and it will be preferable that they be at work, both from the company's viewpoint for production and also from the employees' viewpoint so that they can be earning money.
PN866
But one has to accept that it is their decision as the industrial reaction to what the company has proposed to do that explains why they are in that situation. Now, in my respectful submission it's not for the Commission in the context of this section 127 application to be making any assumptions about how that might play out. Obviously employees, the unions and the company will have to review their position in light of the outcome of this application. That review would be going on all the time, one would expect. The company has given evidence that it's making effort to try to get people to work.
PN867
There may be any number of things, responses by the company, the employees or the unions that will bring this matter hopefully to a resolution. In my submission it's not for the Commission in this application to be looking at ways in which that particular set of circumstances might be addressed. The issue before the Commission is whether there is industrial action by the company. That's what the unions chose to bring before the Commission and for the reasons I have already said, in my respectful submission there isn't jurisdiction for you to deal with that. As a matter of discretion if you think you do have jurisdiction, I point to you to the decision of Commission Bacon in the Flight West case. That's in your bundle.
PN868
THE COMMISSIONER: Yes.
PN869
MR DALTON: Print P5229. The Commissioner in that case says that:
PN870
As a matter of overall approach on discretion the Commission should be satisfied that there are ...(reads)... commercial decision.
PN871
And here where you have got clauses in the agreement which are quite express and specific on the ability of the employer to implement a reduction in manning, we think that that decision carries particular weight on the discretionary aspect. Commissioner, as a final point I just want to address you in relation to other powers that might be available to the Commission, in particular, powers that might address this unsatisfactory situation of the employees not being at work and not earning money and the company not be able to produce board at the moment.
PN872
The first point and the crucial point here is that your power to make recommendations or directions are available in relation to an industrial dispute or unless the context otherwise requires in the Act in relation to any other proceeding. But if you accept my strong submission on jurisdiction, you don't have the power to make recommendations or directions because you don't have a matter before you on which you have jurisdiction. You have to have a proceeding before you that enables you to exercise the powers that are you are available to you under section 111. So that's the first point that I would make in relation to that.
PN873
On the assumption - sorry. If you think that you do have jurisdiction, then on the issue of directions our primary position is that none be made and that the Commission not make any assumptions about how things were played out in that regard. Our alternative submission is that the Commission take up what has been put by Mr Pittle in his examination-in-chief today and that is that there be a period of time, perhaps until the end of March, under which the employees work the six and two on a without prejudice basis and that that would be subject to review at the end of March. The reason why there should be a period of a couple of months is that it will give the parties sufficient time to see how that six plus two works and it will also take heat out of the matter because simply having a review period after a couple of weeks here is really not going to do it justice because the union is strongly opposed to six and two as a lasting outcome.
PN874
So in our submission that is something that the company, if directed to do, would do. Could I say that there are good merit reasons if you are minded to make a direction for it to be done in that way and that is, the company's position that the consultative process has been exhausted, that that is illustrated by the fact that the unions have not been able to raise any new issues since the 22nd or 23 December, that the unions and the employees are not prejudiced in relation to the move to six and two, that it is subject to review at the end of March, that there's time enough for the heat to be taken out of it and for measured and proper assessment of that six and two arrangement to be made and the Commission can be involved at the end of March if there is not agreement for the six and two to be the ongoing roster at that time.
PN875
Commissioner, as my final point could I address you in relation to the seven and one. If that's a matter that you are minded to include in a direction then I am instructed to make it clear on the record that any direction or recommendation that requires the company to revert to seven and one would not be followed if it did not involve a hard implementation date, I think on 24 January when the Commission is next available. To explain, if any residual issues are not resolved the default position would need to be that the company can implement the six plus two at that time.
PN876
To make that clear in the context of this application, we would say that the application for the order would need to be dismissed, that the Commission direct that process but that there not be a report back locked in, but the union have the right to reapply and the Commission being available on the 24th could call it on at that time. If there is not a hard implementation date, then I cannot get instructions that the company would follows - I beg your pardon. My instructions are that I cannot provide any assurance to the Commission that it would follow such a direction in light of the position of the company that has been stated in detail in this case.
PN877
THE COMMISSIONER: I understand the context in which you put it.
PN878
MR DALTON: If the Commission pleases, those are the submissions of the company.
PN879
THE COMMISSIONER: Thank you. Mr Wainwright.
PN880
MR WAINWRIGHT: Commissioner, can I start off by congratulating my friend that having the skill to seek that orders be given against
the applicant in a section 127 application is not a tactic that I have considered in the past, it's certainly one that I am going to consider in the future and
the effrontery of it amazes me. This is indeed our application and we did indeed seek orders against them and we want them to stop
the industrial action which they have engaged. Now, I think what is required here is a little lawyering and a little more common
sense. Has work been performed since 4 January? No, it hasn't. Why has it not been performed since
4 January? Because the employees have made themselves available to perform work in accordance with their certified agreement and
for that they have been stood down.
PN881
It has been suggested to you a couple of things, first of all that they are on strike. The employees aren't on strike. Mr Pittle has given evidence that they have been stood down. Now, the respondent can't have it both ways. There are either stood down on the evidence of their main witness, or they are on strike in the submission of their advocate, but that's a matter for the Commission to determine. It's also said that the CFMEU has strongly opposed to six/two as a lasting outcome. That's clearly not correct. In my submissions that I made to you not an hour ago we stated that we understood the provisions of clause 15 and we understood the powers of the company, but we also understood that they had to be exercised within the context of the rest of the agreement.
PN882
None of that should suggest to anyone that we are opposed to the six/two as a lasting outcome and in fact we are not. We are not opposed to the six/two as a lasting outcome. Commissioner, The Age decisions and other decisions are to do with dismissal of employees. As I have said to you, those are not the circumstances here. You should not follow those decisions, you should distinguish them. The respondent also states that Mr Pittle considered our suggestions and responded to them and they say we have raised no issues.
PN883
We have issue with that submission. We say that Mr Pittle has now responded to the initial issues that we have raised. He judged them not to be show stoppers and dismissed them out of hand and it seems to us ludicrous that we should then arrive with other issues so that they can also be ignored. We are either engaged in consultation or we are not. You can't be a little bit pregnant and we are not interested in shopping around so that we can find an issue that the company decides is in fact an issue. They can address the issues that we have brought up in the first place.
PN884
They have failed to do that. They continue to fail in that regard and it seems to us interesting to suggest that we should somehow come up with different issues. With regard to the exercise of your powers other than issuing an order, we make it clear that we are seeking that you exercise your powers. We are not seeking that you exercise any powers other than those that you have in section 127. We have been during the process of this application open to all considerations. None of those have been taken advantage of. We are left in the position of seeking an order from you and we seek nothing else from you, and I think it's correct to say that you have a threshold decision to make about your jurisdiction.
PN885
On that we merely restate our submissions that it's clear that industrial action is occurring here and if industrial isn't occurring here I am wondering why it is that the Port Melbourne isn't running right now. If it's not running, why not? It's not running and that's because there's industrial action in place. I stated in my opening submissions that yes, it's correct to say that in our application we pointed to the unilateral implementation for change at (d). We didn't point the decision of the company to stand the employees down, unaccustomed as we are to making these applications. None of that limits your ability to issue orders about that action. None of that - - -
PN886
MR DALTON: This is a reply submission. Now, it seems to be that
Mr Wainwright has tried to expand the application and I object to that course.
PN887
THE COMMISSIONER: Yes. I think we have to stick with what is before me, Mr Wainwright.
PN888
MR WAINWRIGHT: Commissioner, as you have ruled. I will leave it to your consideration.
PN889
THE COMMISSIONER: All right. I indicated to you earlier that I would give an ex tempore decision once I got the final submissions. I don't propose to do that. I think I ought to give some consideration to what has been put here, but I am conscious of the fact that work is not taking place at the moment. I will get that decision written overnight and it will be distributed to the parties first thing in the morning.
PN890
MR DALTON: Commissioner, just perhaps before you adjourn. The oral submissions that I gave were basically read from a written submission that I have prepared so given the transcript is not available you may wish to - - -
PN891
THE COMMISSIONER: That could be helpful, yes, thank you.
PN892
MR WAINWRIGHT: Well, Commissioner, I might take the opportunity to do that similarly.
PN893
THE COMMISSIONER: Good, good. I am always open to help. You have already seen me up before appeal benches, although I did all right on that one.
MR DALTON: Perhaps if they could be marked as well, Commissioner.
EXHIBIT #D2 OUTLINE OF SUBMISSIONS OF MR DALTON
EXHIBIT #W4 OUTLINE OF SUBMISSIONS OF MR WAINWRIGHT
PN895
THE COMMISSIONER: On that basis I will adjourn these proceedings and as I have indicated, I will hand down the decision in the morning.
<ADJOURNED ACCORDINGLY [7.32PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
COLLIN FLANAGAN, SWORN PN309
EXAMINATION-IN-CHIEF BY MR WAINWRIGHT PN309
CROSS-EXAMINATION BY MR DALTON PN357
RE-EXAMINATION BY MR WAINWRIGHT PN380
THE WITNESS WITHDREW PN401
ANDREW JOHN PITTLE, SWORN PN413
EXAMINATION-IN-CHIEF BY MR DALTON PN413
CROSS-EXAMINATION BY MR WAINWRIGHT PN556
RE-EXAMINATION BY MR DALTON PN742
THE WITNESS WITHDREW PN750
EXHIBIT #D2 OUTLINE OF SUBMISSIONS OF MR DALTON PN894
EXHIBIT #W4 OUTLINE OF SUBMISSIONS OF MR WAINWRIGHT PN894
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