C2005/3825, Transcript of Proceedings [2005] AIRCTrans 1760 (25 August 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 12479-1

SENIOR DEPUTY PRESIDENT LACY

C2005/3825 C2005/3824

ALCOA AUSTRALIA LTD
AND
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
s.170LW - Application for settlement of dispute (certification of agreement)
(C2005/3825)

ALCOA AUSTRALIA LTD
AND
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
s.99 - Notification of an industrial dispute
(C2005/3824)

MELBOURNE

2.00PM, WEDNESDAY, 10 AUGUST 2005

Reserved for Decision

Continued from 9/8/2005

PN850

THE SENIOR DEPUTY PRESIDENT: Mr Addison?

PN851

MR ADDISON: Thank you, your Honour. I think it’s our turn to lead evidence and with that, I will call John Paul Johnson.

<JOHN PAUL JOHNSON, AFFIRMED [2.00PM]
<EXAMINATION-IN-CHIEF BY MR ADDISON

PN852

MR ADDISON: Thanks Paul. Paul, can you just repeat for me an address for the purposes of the transcript please?---John Paul Johnson (address supplied).

PN853

Paul, did you prepare a witness statement, or did you assist in the preparation of a witness statement in regard to this matter before the Commission?---I did.

PN854

I’ve a copy of this statement for the Commission?---Yes.

PN855

And I ask you to have a quick look at this witness statement and advise me of any changes to it?---Sorry?

PN856

Do you wish to make any changes to it?---No, I’ve had a look through that and I’m happy with that.

PN857

Is the witness statement true and correct in every particular?---Yes.

PN858

I seek to tender that, your Honour.

EXHIBIT #AMWU2 WITNESS STATEMENT OF JOHN PAUL JOHNSON

PN859

MR ADDISON: Paul, I will take you to paragraph 3 of your witness statement and the part of paragraph 3 that’s on page 1. Down the bottom you talk about the, I think, proceeding to the top of the superstructure via a wooden ladder to a platform and two people getting inside. You were in the court yesterday when the company’s witnesses gave their evidence and you heard them disagree with this description of how the job proceeds. Is your description accurate?---Yes, that’s - in my entire time of doing the commissioning work, which you know, has been ongoing for quite a number of years is how we’ve done it on every single occasion.

PN860

Can I ask you, in that entire time how long have you been doing this job?---I estimate it around about 10 years. There’s been some changes in the particulars of the job throughout that time, but you would say 10 years.

PN861

So you’ve been doing this job for 10 years?---Yes.

**** JOHN PAUL JOHNSON XN MR ADDISON
PN862

How often would you do this job?---I’d estimate 10, 12 times a year. As, you know, there’s, as a workshop we do it approximately twice a week. Of course, I don’t do every single one of them, I share it with the other workers.

PN863

When was the last time that you personally did this job?---It would be a couple of months ago, I’d say three months.

PN864

Three months ago, fine and the time before that?---Probably about the same period. I’ve been a senior delegate at Point Henry now for, it’s coming up probably 10, or 11 months. So I haven’t done as much as I have in the preceding time because my new role as a senior delegate has taken up a lot more time.

PN865

Do I understand your evidence to be, you’ve done it twice in the last six months?
---Yes.

PN866

THE SENIOR DEPUTY PRESIDENT: Sorry, just to clarify something. Did you say that for the past 10 years you’ve been doing it, about 10 years?
---Approximately 10 years, yes.

PN867

In the first paragraph you say, however for the last 15 years or so I’ve been located at 137 workshop specialising in - - -?---Repair of superstructure, that’s correct.

PN868

That’s different, is it?---We actually repair them in the workshop and since I’ve finished my apprenticeship I’ve pretty much, you know, worked on that job refurbishing those in the workshop, but we haven’t always done this job of commissioning the supers, so that’s sort of separate from the 10 years.

PN869

I see, all right.

PN870

MR ADDISON: So prior to 10 years ago, who did the recommissioning?---Our shift - mechanical shift people, I believe.

**** JOHN PAUL JOHNSON XN MR ADDISON
PN871

And then was the job handed to the 137 workshop, was it?---Yes it was handed to the 137 workshop, I believe it was part of, from memory, I believe it was part of our last restructuring. We decided that to drive productivity improvements and efficiency et cetera, that that would be appropriate that the 137 workshop commission this work, because we are the ones who recondition it and refurbish it and if we don’t do the job properly and it goes out and when we’re commissioning it and we find it’s not done properly we can fix that straight away. Plus, we’re sort of the ones who are left with having to try and repair faults, so it sort of comes back on ourselves, rather than an independent party. So it’s part of what we call a whole job concept.

PN872

So it’s an encouragement to do a break for the workshop?---That’s basically what it comes down to, yes. If we don’t do it right well we’re the ones that fix it.

PN873

Exactly. Now Paul you listened to Charlie give his evidence yesterday. You’ve attested to the fact that the temperatures with regard to, or the temperatures associated with this job can be fairly high. You heard Charlie yesterday give evidence that so far as the company was concerned, if a tradesperson was doing the job and the tradesperson felt uncomfortable, the tradesperson, could at his or her discretion, cease doing the job, and the company would not push them to get the job done. Is that the way it works?---I guess that depends on your interpretation of the word comfortable, for starters. I don’t think I’ve ever done this job in comfort. The minimum type of temperatures that we work in is the low thirties and in summer it quite often hits the low fifties. I haven’t personally recorded it, but I’ve had other members tell me that it’s got into the high fifties. So there’s no such level of comfort there. So, yes look, as far as, if I felt uncomfortable, could I walk away from that job, I believe that if I walked away from that job feeling uncomfortable well then I’d be answering questions in front of management as to why I didn’t get the job done.

PN874

Okay, now in your description of the job you say that it is a three tradesperson job?---That’s correct.

**** JOHN PAUL JOHNSON XN MR ADDISON
PN875

Can you tell the Commission, why you believe it should continue to be a three tradesperson job?---Yes, when we perform this job, we don’t see that third person as purely a spotter who just stands around and looks for hazards. We see that as a key part of their work and they also assist at certain times. When we are working in the scissor lift they help hand things up to us. We have to take up several sections of pipes, insulation spacers, tools, silicon, spare nuts and bolts and washers, spare clips, et cetera, we have to take all of this up. What we call, what you would call a cable tray, a wooden cable tray et cetera. So you can’t load that on to the scissor lift and expect to lift it all up in one, in one go. So we take up a part, we install it, the third person can hand up the wooden ladder, we’ll put that up or they’ll hand up a piece of pipe. If there’s a tool that we need, or an insulation washer et cetera, they’ll hand that up to us. Part of the reason for that is that the scissor lift is actually a very awkward piece of machinery to get in and out of. You climb up three steps which are vertical steps, they’re not like a stairway in a building, they are three vertical steps and then you have to hop in through this very small gateway that has a bar over the top of it, to maintain the rigidity of the handrail and you have to squeeze through that hole. It’s the least times that you can be getting up and down there the less chance of an accident or a strain et cetera. It’s just very time consuming as well so from a productivity basis we find that it’s just much more appropriate to have those things handed up as we need them.

PN876

Okay and how much of a time on the job, do you need the third person to be handing you gear?---I’d say approximately 75 per cent. There is a period where that third person very much takes on the role of much more a spotter rather than an assistant and that’s when we are actually inside the hoppers in the superstructure and we have the spotter up on the platform with us and at that ponit in time, the spotter doesn’t assist as much. He will occasionally hand something like a screwdriver or a torch or what have you, but predominately his role at that time, is to observe for safety.

**** JOHN PAUL JOHNSON XN MR ADDISON
PN877

You just said there that the spotter is up on the platform. Now this is a position, or this is a matter which the company gave evidence about yesterday. The company witnesses gave evidence that the spotter should not be on the platform but should be in the wide aisle, it seems for a couple of reasons. One reason was that the spotter in the wide aisle could see the lights which indicate an anode problem. Have you had an opportunity to check the operation of the lights in the plant since yesterday?---Well I had a little bit of spare time to go and do that this morning. It was a fairly quick observation.

PN878

Yes?---In the west end of our pot room 101, I believe there was 52 light sockets there, that had lights fitted to them and there was 4 light globes.

PN879

So do I understand that out of 52 available lights, 4 were in working
condition?---That’s correct. That’s on the wide side of the, it’s our wide aisle, which is - I drove down there to do that. That is the aisle that the company proposes that we should have the spotter in.

PN880

Okay now in terms of an anode fault, is the lights, the principle mechanism by which you are alerted to that problem?---The principle one that we rely upon is the computer system in the pot room which is connected to a voice alert and we get a voice warning, that an anode effect has taken place.

PN881

Does that voice warning come at the same time as the lights flash?---I believe so.

PN882

Yes, so I take it from that that if the spotter was on the platform, the spotter would hear the voice warning?---That’s correct yes, while they are up there they can hear that voice warning.

PN883

Is there any processes in place to determine the appropriate place for the
spotter?---No, it’s not - there’s nothing written in the SWIs or HIRA that I’ve managed to find. And the first time that I actually heard anyone suggest that the person should be located in the wide aisle, was through discussions with Bob and Charlie, that’s Bob Holland and Charlie Adornetto, and they alerted me that in their opinion the wide aisle was the most appropriate place. But other than that I’d never heard that before.

**** JOHN PAUL JOHNSON XN MR ADDISON
PN884

And when had Charlie and Bob told you that?---It would be within the last couple of months I suppose, I can’t put a timeframe on it.

PN885

So for 9 years and 10 months prior to that discussion with Charlie had anybody told you where the spotter should be?---No.

PN886

The spotter you say is on the platform with you?---That’s correct.

PN887

Is there any reason why the spotter is there?---Yes, we’ve always had that person there because those two people who are inside that hopper are using hammers to get the pipe into place. That pipe is actually a tight fit and part of the job role is that it must be hammered home to make sure that it’s fully on there. So, it’s a loud environment in there. They’re working below level where they can’t see outside of this superstructure. So having the third person up there if there’s any danger et cetera, they can give the people a tap on the Rayco helmets, they are wearing these Rayco breathing helmets, because of the fumes there. They can give them a tap on the helmet and alert that there is some issue that they need to address.

PN888

If there was an issue an people were in the hopper doing the job that you’ve just described, and the spotter was on the wide aisle, how long would it take the spotter to alert the people inside the hopper?---I guess that would depend on how quick he can scramble up a set of steps on to the grading beside the pots and then up a wooden ladder and you know, give them a tap on the shoulder I suppose.

PN889

How long do you estimate?---30 seconds to a minute I suppose, 30 seconds something like that.

PN890

30 seconds to a minute okay and how long would it take a spotter on the platform to alert a person to a potential hazard?---Well once the spotter noticed a hazard they should be immediately tapping those people, so.

PN891

Now there was some evidence yesterday with regard to magnetic effects, and the effects on scissor lifts. Do you have any comments that you can make with regard to that particular problem in the workplace?---Magnetism is a problem to a range of equipment out at Point Henry. It effects the governors on diesel motors. It also effects like the electronic solenoids et cetera within the hydraulic circuits of the scissor lift. We have a continued and repeated problem with trying to steer and move the scissor lift back and forward when we are in close proximity to the buzz bar. We put a wooden barrier which is a half inch thick piece of plywood, hard against the buzz bar to help reduce pot earth potential and we park the scissor lift hard against that. And when we are trying to put it into that position and remove it from that position we have a lot of trouble steering. We have trouble getting the brakes to release. Sometimes the brakes won’t release, so we like hook a cable on and drag it away a bit. And we also have trouble with the hydraulic circuits wanting to let the scissor lift go up and down. Now that happens – the frequency of that is that we have problems with that magnetism effecting the vehicle on virtually every single time we do a commission or a decommission. And we have had a few occasions, though they be rare, we have had a few occasions where the scissor lift has jammed in the up position because the solenoids wouldn’t release and that requires someone to release a manual hydraulic valve and bleed the oil out of the system and allow the scissor lift to lower to the ground.

**** JOHN PAUL JOHNSON XN MR ADDISON
PN892

Is it your evidence, the two people who are in the scissor lift in the up position when it is stuck, are they able to release the valve and drain the oil?---No.

PN893

No?---No.

PN894

Where physically is that valve located?---It’s located close to the lower part of the machine which requires someone to be standing on the ground to access that valve.

PN895

Okay and if you were stuck in the scissor lift in the up position, would you not use your radio to contact somebody?---Well the 137 workshop we haven’t actually got any radios.

PN896

Have you ever had any radios?---Well not, I’ve worked there for you know, I’ve been located in that workshop for 15 years and during my apprenticeship I worked intermittently through that workshop, I don’t recall there ever being a radio in that workshop.

PN897

Well Mr Holland gave evidence yesterday that everybody’s got a radio, or everybody’s got access to a radio, is that correct?---Well certainly not in that department, I think Mr Holland was mistaken, mistaken there, we’ve never had a radio in that workshop.

PN898

Now in terms of if you were stuck in the up position, and you didn’t have a third person on the ground, even if you had a radio, how long would it take for a person to come and release the oil?---How long is a piece of string? I guess that depends on where they’re located. You know, if they off having there – you know a person is capable of answering that phone who’s off in an office, part of the radio’s phone call, the person who is capable of responding to that call who is off in an office or something, it might as a minimum take a couple of minutes. It might take five minutes, you know, worst case scenario I’d hate to think that it would take 10 minutes or something. But unless they were standing right beside you know, which I suppose you’ve got a spotter there, so it’s not an issue. It’s going to take some time for them to get to you.

**** JOHN PAUL JOHNSON XN MR ADDISON
PN899

You just mentioned the spotter. Can I get the witness to have a look at the company documents? Paul, can I ask you to have a look at Bob’s witness statement and particularly the attachments to Bob’s witness statement. In particular page 1 - - -

PN900

THE SENIOR DEPUTY PRESIDENT: It’s Mr Holland’s.

PN901

MR ADDISON: Yes, sorry your Honour, it’s Mr Holland’s witness statements. Page 1, which is the SWI?---Yes.

PN902

The 174 pot commissioning process. Now you heard evidence from Mr Holland, yesterday that this – I think it was Mr Holland, it could be Charlie I can’t recall. But one of the company’s witnesses anyway gave evidence yesterday that this document had been put together by the Occupational Health and Safety Representative in consultation with the Safety Department and the Work Group. Is that the facts as you know them?---The SWI, I believe was put together by the – or in consultation with our maintenance people.

PN903

Yes, did you have an input into the SWI?---Personally, I didn’t.

PN904

You didn’t?---No.

PN905

Okay, now if I take you to the question of resources on the first page of the SWI, you will see there that it calls for one electrician, and three 137 personnel, one of which is a spotter. Is that the correct resources as you understand it?---That’s correct and that’s how we’ve always performed it.

PN906

Okay, now the electrician how much involvement does the electrician have in the job?---Very small amount, just if the wires are frayed or damaged et cetera, we connect up electrical services as well. We have authority to connect them because they’re plugs, you know, we are not touching wiring with screwdrivers, or any, there’s no danger there. So it’s just plugging in electrical leads. But if those plugs are damaged, if the wires are frayed, something like that well then it’s an electrician who would replace the component.

PN907

So the electrician is an ad hoc resource, is that right?---That’s correct.

**** JOHN PAUL JOHNSON XN MR ADDISON
PN908

The three 137 personnel, in terms of this job are all of the three, 137 personnel used all of the time, or only some of the time?---All the time.

PN909

All the time and the third person as we are referring to the spotter as, is that person starting, is it the same person all the way through the job or is it different people at different times during the job?---No, it rotates around. It doesn’t rotate every single job but if it’s a hot job or if people are starting to get a bit frustrated. There’s a large level of frustration in this job because we are dealing with old paint that’s been changed and modified and not put back into sit where it came out of et cetera. What might seem like a fairly easy task to bolt it, a couple of sections of pipe in, when they don’t line up and you’re struggling to bet a bolt hole through a – a bolt through a hole that’s got multiple levels of insulation washers on it, people get frustrated and that. So, besides the heat there’s even the level of frustration that you can, that the third person can say, hang on, you know try this, where’s a pinch bar or something and the third person can swap in and the other bloke can have a bit of a rest and let someone else battle on for a bit of a while.

PN910

I want to take you to the actual document I think it is 1.06 which is on about the fourth page?---Yes.

PN911

And it says at 1.06, pot spotter in place, one pot spotter in position to watch for possible pot room hazards. That doesn’t require the spotter to be the wide owl, does it?---No.

PN912

You may be able to help me Paul, but I can’t find a spot that says, spotter removed from job, can you find a spot?---No, that’s not contained within that document from my reading of it.

PN913

I didn’t think so. Okay now this was done by the health and safety rep, can I take you to the next attachment to Mr Holland’s statement, which the document which is the HIRA. We heard evidence yesterday that it seems to have been compiled, I guess by Mr Rose, Mr Kinnear and Mr Smith. Are any of those people, to your knowledge, members of the work group?---No, they’re not.

PN914

We heard yesterday that they were an engineer, a supervisor, and a technology consultant. To your knowledge have any of them ever done the actual physical work of commissioning a pot?---Not to my knowledge.

**** JOHN PAUL JOHNSON XN MR ADDISON
PN915

Is it likely that any of them have ever done the job of commissioning a pot?---I would doubt very much. I believe Bill Ginnane, William Ginnane was a fitter and turner at some stage in the past, I don’t know in that role, at another plant, or something if he may have. But, in all likelihood to my knowledge, no none of them would ever.

PN916

Let me put it this way, in your 10 years of doing this particular job and being involved in this particular workshop, has any of those three people, commissioned a pot to your knowledge?---They’ve never commissioned one in my knowledge.

PN917

In terms of the modification to that particular document, and if you look at the bottom of the document, the footer on the document you will see it was modified on 8 April 2005. Were you as the senior delegate advised of any modifications to this document?---No, I wasn’t.

PN918

To your knowledge were any of the health and safety reps consulted with regard to the modifications of this document?---No, they were not, and I went out of my way to – because it drew interest to me, so I asked Gregory Seears the safety rep for the 137 workshop and who has done a lot of the work with this sort of stuff in the past, had he known about it and he informed me that no, he didn’t know either.

PN919

When did you ask him that?---Within the last – it would have been a week and a half ago.

PN920

Could I ask you, you heard Mr Holland’s evidence yesterday?---I did, yes.

PN921

Mr Holland believes that you are the senior kalegan for an extraordinarily militant group of workers. Would you agree with him?---No I wouldn’t agree with that. We actually had a member in the Victorian Government, Mr Rob Hulls, come down and present us with an industrial relations excellence award this year, and we, of course, got our photo taken with him with a plaque that he presented to us. And in his words in presenting that plaque he said that Alcoa Point Henry Management and Unions were a role model that other industries should look towards for our leadership.

**** JOHN PAUL JOHNSON XN MR ADDISON
PN922

When was the last time to your knowledge there was a strike at the plant?---I can recall a one day strike where we didn’t return to work after a mass meeting over an EBA that I believe would have been in the late 90’s.

PN923

Right so, between 5 and 10 years ago?---That would be correct, yes.

PN924

That was in the context of negotiating an agreement was it?---That’s correct.

PN925

To your knowledge has there been any other industrial activity on this site?---No, the only other activities that we participate in is when there’s all union rallies or something like that, political rallies we might attend to them from time to time.

PN926

You have given evidence that Rob Hulls who is the Victorian IR Minister presented a plaque for IR excellence on site. Is the industrial relations generally good?---Yes, in fact Alcoa seem to brag about it.

PN927

And the consultation between management and employees, is that
satisfactory?---Look there is always room for improvement. I don’t know if there seems to have been a bit of a change lately, but there has been a few things that have frustrated me.

PN928

There’s been evidence in these proceedings, it’s been put to the employers witnesses on a number of occasions, that the employees, that is the workers you represent, consider that the proposed changes would constitute a threat to their health and safety?---That’s correct.

PN929

The evidence is that you have emailed the company’s representatives and told them that?---Yes, that’s correct.

PN930

Can you tell me what efforts you’ve made to try and impress on the company those concerns?---Since the concern was raised, we’ve almost raised this on a weekly basis. Charlie Adornetto and myself along with Damien Luppino my
co-delegate Bob Holland, try and catch up on a weekly basis just to talk about what sort of things are happening around the plant et cetera. And I believe at almost every single one of those, the issue has been raised to one degree or another.

**** JOHN PAUL JOHNSON XN MR ADDISON
PN931

There was evidence yesterday, and it’s evidence which is different witness statement, you’ve said in your witness statement that this matter did not go to the committee, which is the EDLT committee?---That’s correct.

PN932

The company’s witnesses yesterday gave evidence that it had in fact been to the EDLT. From your perspective, what has occurred with regard to this matter of the EDLT?---In regards to the matter of using a PC as the third man, I don’t believe that at any time that was raised at the EDLT. Most certainly at the EDLT meeting it was pressed upon us that the company had some productivity issues which was no fault of any worker et cetera, it was part of the complexity of producing aluminium and that we were in a bit of a tight spot and we needed to see our way through that and that it would require the quick turn around of these superstructures which would mean the commissioning needed to not be held up and I gave a commitment on behalf of the AMWU that we would assist the company in turning those pots around and maintaining the plants note to get us back on track.

PN933

So the issue of three as opposed to two tradespersons has not been raised at the EDLT?---That’s correct.

PN934

Now there’s some evidence from Mr Pole, Mr Pool, Mr Kel Pool, is that right yesterday afternoon, with regard to the meeting he’d had with yourself with regard to manning levels on the site. Do you recall that evidence?---Yes, I do.

PN935

Mr Pool had said that he did not agree with you that he would maintain the level of tradespeople on the site. What do you say to that?---I attended a meeting at Deakin University where the three unions at Point Henry plus all the senior management, were present. I’d just been a newly elected senior delegate of the AMWU, so I wanted to press our position leading into a workplace restructure. I said that the AMWU would participate and be supportive of that structure and help bring about productivity and efficiency improvements, but that it would be on the basis that our numbers would not be reduced. I said that productivity and efficiency improvements can only lead to one of two things. That being that the same number of workers, do more work, or the less number of workers do the same amount of work. And what I said was that we held a position that the AMWU should have the same number of workers and that we should do more work and take that work off the contractors leading to savings in contract cost for the company. Kel Pool indicated to me that he was in the same opinion and that’s what we would be working towards doing.

**** JOHN PAUL JOHNSON XN MR ADDISON
PN936

Well while we are on the question of contractors. Have contractors been used on this pot recommissioning job to your knowledge?---Yes.

PN937

And the contractors who have been used, what skills do they have?---Contractors who do this job are people who assist us also in the refurbishment of the superstructures in our workshop. Our workshop doesn’t have the manning levels, or personnel levels, to perform this work by ourselves. So we rely on the contractors to support us and they more or less become part of our work team. So about fifty per cent of the time when we are commissioning or decommissioning pots, we’re actually taking down one or more of those contractors with us.

PN938

In terms of those contractors, are they tradespeople?---The are tradespeople, yes.

PN939

Now you’ve given evidence earlier and you’ve said in your witness statement, that there are employees that have told you to reduce from three tradespeople to two tradespeople on this job would be to compromise safety?---That’s correct.

PN940

Do you agree with them?---I do.

PN941

Why do you agree with them?---I initially, I hadn’t worked with any production workers in the past et cetera and I went around and canvassed my members on this to get a better understanding of this and they explained it to me and certainly convinced me that the PC is a person who is trained primarily to meet production targets and it’s the focus of his training and the focus of his day to day work. He’s not trained in maintenance and understanding the safety of maintenance. He’s not part of a crew who is established in doing this job and knows the particular hazards of it and can give advice to say, you know, watch out with that piece of pipe, the magnetism could catch a finger or whatever, don’t try lining up that bolt holder finger you need a pinch bar et cetera. They just can’t give that day to day advice, you know, when somebody is struggling away to help with safety. Also, you know, on the opposite, you know, our own people who do that job are people that we know and we trust and we’ve seen them do this job safely et cetera, they’ve demonstrated it, they’ve been specifically trained to do maintenance in a safe environment.

**** JOHN PAUL JOHNSON XN MR ADDISON
PN942

In terms of some with regard to some of the evidence that was given yesterday, Charlie in his evidence said that with regard to the spotter handling tools, the tradespeople in the scissor lift should take all the tools and all the equipment up with them in the scissor lift. Do you agree with that?---That would be dangerous to consider doing that.

PN943

So you say that’s a safety hazard in itself?---Absolutely.

PN944

Now Mr Holland gave evidence that when he acted as a safety spotter, and he gave evidence that he’d done this job himself about 10 years ago on two occasions as the safety spotter. Mr Holland said he did nothing as the safety spotter except stand and watch. Is that your experience of what safety spotter’s do?---No, it’s certainly not my experience of what safety spotters do, I believe that the reason why that would have happened is because Bob Holland would have performed that role, not when he was in the capacity of a member of the 137 workshop or the regular people, who do that job. I believe Bob would have done that job since he was promoted to a staff position. And in that time he probably had lost contact with, you know, how that job actually is done, how it’s done safely et cetera. So I think the way in which Bob Holland did that job adequately explains what we can expect from the PC when doing that job as well, that they will stand there and not give any assistance et cetera and you know, observe visually for some safety problems and things.

PN945

As a tradesperson doing that job, if you had a person standing with his hands in his pocket and not assisting on the job, would you find that acceptable?---No.

PN946

So if Mr Holland was assisting you tomorrow in this job in the way he assisted others in that job 10 years ago, would you find that acceptable?---I wouldn’t accept Bob Holland as a spotter at all because I don’t believe that he’s in touch with the present safety issues around that job.

PN947

No further questions.

PN948

THE SENIOR DEPUTY PRESIDENT: Thank you Mr Addison, Mr Watson?

<CROSS-EXAMINATION BY MR WATSON [2.38PM]

PN949

MR WATSON: Thank you, your Honour. Mr Johnson, you were taken by
Mr Addison to the standard work instruction? You will have to give audible answers for the transcript. That’s a yes?---Yes.

**** JOHN PAUL JOHNSON XXN MR WATSON
PN950

And those standard work instructions are used for all of the jobs undertaken by maintenance, are they not?---No, there’s some jobs that might come up on a once off basis or something, a new job et cetera, that an SWI would not have been developed for.

PN951

Okay, but for work that is regular and repeated type of jobs, the practise is to develop the standard work instructions?---That’s correct.

PN952

And you’re familiar with using those for a variety of jobs that you in your role as a tradesman undertake?---That’s correct.

PN953

On a day to day basis?---That’s correct.

PN954

And you are aware also that standard work instructions are usually supported or preceded by HIRAs, being the hazard risk assessments?---That’s correct, they’re developed from that HIRA.

PN955

You are aware that if there’s any concern about the work methods in the SWI or hazard instruction, there’s an ability for you as a tradesman or as a delegate on behalf of your members, to raise those concerns and have those matters looked at?---Yes, that’s right.

PN956

Does that happen very often?---It happens from time to time, certainly some we raise and some are in conjunction with the company and the employees we’re able to find quick and easy solutions to, and some of course aren’t so easy to find solutions to.

PN957

Yes, but if you both look at it and there’s an easy solution, you would expect that the relevant documentation, the work method would be revised as a result of that?---Would reflect that, yes.

PN958

Now you accepted this morning that SWI 174, which was the commissioning standard work instruction was developed with the involvement of at least one employee who undertook the work?---That’s correct.

PN959

And were you aware when the relevant HIRA was being developed in relation to that role?---No I couldn’t give you a date or anything like that.

**** JOHN PAUL JOHNSON XXN MR WATSON
PN960

Yes, but do you remember when it was – not the actual date, but do you remember when that was?---I recall people being involved in that.

PN961

Do you recall what they were doing in order to develop that HIRA?---Not specifically, but there was company and our people so I had confidence that between the two of them they would develop that.

PN962

And do you recall, or do you expect that they would watch the work being undertaken when a particular pot was being commissioned?---I don’t know if that would have been the case that they necessarily would have watched, but they certainly would have taken into account what our people had to say about the risks et cetera.

PN963

Yes, so you would expect that they would have spoken to people about
that?---Absolutely, yes.

PN964

You gave some evidence today about the scissor lift?---Yes, that’s correct.

PN965

Now the scissor lift is used in the example you gave from the narrow aisle, is that correct?---That is correct, yes.

PN966

So it’s positioned on the floor in the narrow aisle near where we inspected the pot on inspections, last week?---Yes.

PN967

And you said you are aware of occasions, and I think you said it was rare, that the scissor lift has jammed in the upper position?---That’s correct.

PN968

Yes, and was that an example where the third member of the crew was in the general vicinity on the narrow side?---Yes, the third person released the valve and let it down.

PN969

And were you involved in these, or did you hear about these incidences?---I wasn’t involved, I heard about them.

PN970

You heard about them later. So how do you know these details? Have you been told?---Yes, that’s right.

PN971

These details?---I have yes.

**** JOHN PAUL JOHNSON XXN MR WATSON
PN972

And do you know how long ago was the last occasion?---I believe it was a while ago, the last one that I’d heard of involved our member Jim, James Harvey and that probably would have been over a year ago.

PN973

Now you gave evidence about the position of the safety spotter while the tradespersons are in the hopper performing the work at the top of the superstructure?---That’s correct.

PN974

And you said that if the safety spotter was on the wide aisle, it would take about 30 seconds, I think was your evidence to get from there to contact the tradesman in the hopper?---That’s correct.

PN975

And that involves going up on to the platform and then up a wooden ladder, is that correct?---Up on to – the pots are surrounded with grating, so it’s a three step up on to the grating and then up the rungs of the ladder on to the platform.

PN976

So three steps from the floor of the pot rooms to the grating?---Yes.

PN977

Which is referred to as the decking?---We would normally call just on the grating.

PN978

And then up a number of rungs on the ladder to tap them on the
shoulder?---That’s correct, yes.

PN979

You said that might take 30 seconds?---I said as a guess, yes.

PN980

And if the safety spotter is on the grating, how long would it take?---On the gratings?

PN981

Yes?---They might say five or ten seconds, it’s still going to take 20 seconds or something.

PN982

So it’s not an immediate, they’ve still got to go up the ladder?---No, you may have misunderstood my evidence. My evidence was that our spotter at the moment, is on the platform, which the platform is located as a safety barrier that we stand on, on top of the superstructure.

PN983

So they are not on the gratings?---They are not on the gratings.

**** JOHN PAUL JOHNSON XXN MR WATSON
PN984

They are on the top of the ladder in any event?---That’s correct.

PN985

I see. You said that in your experience it is the 137 workshop tradesperson who undertake the work in question?---The recommissioning, yes.

PN986

Are you aware of servicemen being used to assist in that process on occasions?---I believe that a serviceman was used on one occasion, yes.

PN987

You only think it was one occasion?---That’s correct.

PN988

You sure that there was only one occasion, or that it’s the only one you are aware of?---I mean, am I sure what happens around the corner, I don’t know.

PN989

MR ADDISON: I object to this there was no evidence in chief in regard to this serviceman, it is brand new. This comes as a complete surprise to us. My friend has asked the question which amounts to an ambush in any event. But I haven’t objected, but I object to him pursuing this line further on the basis that he did not lead this evidence through his evidence. The rule in Browne and Dunn would have it that he needs to have done that before he starts posing this to our witnesses. So we would object to that question.

PN990

THE SENIOR DEPUTY PRESIDENT: Where are we going with this part of it Mr Watson?

PN991

MR WATSON: Your Honour, I want to get clarification as to who actually does this work and this witness has given evidence about who does it and he said it in clear terms. The evidence of our witnesses did indicate that it was more than the tradesman in the 137 workshop that undertook the work and I want to get clarification from this witness as to those matters that he has given evidence about.

PN992

THE SENIOR DEPUTY PRESIDENT: Yes, well what’s wrong with that Mr Addison?

PN993

MR ADDISON: Your Honour, I wouldn’t complain if he, if my friend deals with the evidence that his witnesses gave. His witnesses give no evidence about a serviceman. His witnesses give evidence about shift people and other 137 workshop people. Now if my friend tries to – we are not going to object to that.

**** JOHN PAUL JOHNSON XXN MR WATSON
PN994

THE SENIOR DEPUTY PRESIDENT: No, no but Mr Watson is entitled to test the evidence that’s already been given by Mr Johnson in examination in chief, irrespective of the fact that he didn’t - - -

PN995

MR ADDISON: I agree he is indeed, but he is not entitled, not entitled to ambush Mr Johnson, or us for that matter. He is required unde the rules of evidence, and I accept that the Commission is not strictly governed by the rules of evidence. But the rules of evidence and the rule in Browne and Dunn would require that before he can put these propositions, he would have had to put this material through his own witnesses and he hasn’t.

PN996

THE SENIOR DEPUTY PRESIDENT: I don’t know that he has put them, is has he, he is asking the questions. He is bound by the answers.

PN997

MR ADDISON: He has put the propositions.

PN998

THE SENIOR DEPUTY PRESIDENT: But he is bound by the answers.

PN999

MR ADDISON: I don’t say that he’s not entitled to ask the questions, he is and I accept that. But if he is putting leading propositions in cross-examination of my witness, he needs to have laid the foundation of his own witnesses. And he hasn’t done that.

PN1000

THE SENIOR DEPUTY PRESIDENT: Save to the extent that Mr Johnson has laid the foundation in his own evidence in chief.

PN1001

MR ADDISON: Well Mr Johnson has given no evidence in chief with regard to servicemen, service people doing this work. Mr Johnson has simply said that it is 137 workshop who do the work. Now my friend asks then, my friend puts a proposition about service people which is something entirely new in this case, it has not been raised at all prior to this point. I say that’s unfair. If my friend wants to put a propositions about shift workers, that is not unfair, my friend has a foundation for that. But my friend doesn’t have the foundation for the specific questions. That’s all I say, your Honour.

PN1002

THE SENIOR DEPUTY PRESIDENT: What do you say Mr Watson?

PN1003

MR WATSON: Your Honour, the ruling in Browne and Dunn is that we cannot lead evidence if we have not fairly put propositions to a witness that might be lead subsequently in evidence of our own. It is a rule of fairness designed to ensure that we give the other side an opportunity to comment on evidence that might be given subsequently of a certain nature. This has got nothing to do with the rule in Browne and Dunn. The objection seems to be that there is no contrary evidence already, but that doesn’t – there’s no rule that I can’t test.

**** JOHN PAUL JOHNSON XXN MR WATSON
PN1004

THE SENIOR DEPUTY PRESIDENT: You are entitled to illicit evidence from Mr Johnson irrespective of whether you’ve raised it. But whatever evidence that might be you are bound by this, that’s the basis of it.

PN1005

MR WATSON: Yes, your Honour.

PN1006

THE SENIOR DEPUTY PRESIDENT: Yes, well proceed, I allow the question.

PN1007

MR WATSON: Mr Johnson, perhaps I could rephrase the question this way. You indicated that you are aware of one occasion that a serviceman had been used. Does that mean that you know that it’s only happened on one occasion, or that you are only aware that there’s one occasion and there might have been more but that you are not aware of?---It would be highly unlikely that there would be any other occasions. I know of three occasions that I’ve heard and I trust that the people are telling the truth. That it’s been done by someone else. Two, it’s Bob Holland that I’m accepting his word that he said that he did it. I haven’t heard that from my members, but I’m prepared to accept Bob’s word on it. And I’ve heard that one serviceman assisted as a spotter on one occasion.

PN1008

THE SENIOR DEPUTY PRESIDENT: What do you mean by serviceman?
---Serviceman he works in the 137 workshop he is our fork truck driver, he assists, he drills holes for us, you know, if he - - -

PN1009

He is not a tradesman?---He’s not a tradesman, he’s a guy who’s been trained in some basic trade skills and assists our workshop in some of the, just say, less skilled jobs in there and yes, does a large degree, if we need something moved with the fork truck or the crane, or something like that, he assists with that type of work as well. And that serviceman was a guy who was located in the 137 workshop.

PN1010

MR WATSON: The one you are aware of?---That’s correct.

PN1011

And what are the hours of work of the 137 workshop people?---We only do a day and afternoon on Monday to Fridays.

PN1012

And you are aware that pots, especially in more recent times, have been commissioned outside of those times?---That’s correct on the night shift and on weekends it has been more common lately.

**** JOHN PAUL JOHNSON XXN MR WATSON
PN1013

And who undertakes that work?---Our shift fitters.

PN1014

THE SENIOR DEPUTY PRESIDENT: Shift, what sorry?---Fitters.

PN1015

MR WATSON: And the shift fitters are not located in the 137 workshop, are they?---No, they are located in the building beside us.

PN1016

And they’re responsible for whatever maintenance requirements are required while they are on shift?---That’s correct.

PN1017

Now you said I think it was last year, that you were elected as the senior AMWU delegate on site?---That’s correct.

PN1018

Were you previously a delegate of a group?---I was the assistant delegate in my workshop.

PN1019

Your workshop being the 137 site?---That’s correct.

PN1020

And last year you assumed responsibility for all AMWU members throughout the operation?---That’s correct.

PN1021

Now where are they located? What groups are they?---We’ve got our 137 workshop; our 044 workshop; which is light engineering; our garage workshop which looks after our vehicles; our work crew; which does maintenance around the different areas of the plant; we have our equipment managers and our shift – actually shift fitter isn’t the correct terms for them now days, because we’ve broken down classifications, they are shift maintenance people.

PN1022

So that’s various groups of employees located at various locations throughout the smelter?---That’s correct, they are spread across the plant, yes.

PN1023

And do you accept that it’s your role as senior delegate to convey the views of the members of your union on matters to management essentially?---That’s correct.

PN1024

In relation to this issue, you indicated that you had had consultations. Who did you consult with?---My first port of call for consultation was with the shift fitters because it directly affected them. And then in my general rounds of the plant and talking to people raised the subject in meetings and on one on one basis with people.

**** JOHN PAUL JOHNSON XXN MR WATSON
PN1025

And you have since participated in a number of meetings, I think you said in recent times, weekly basis where issues have been discussed about this matter on behalf of your members?---With Charlie Adornetto and Bob Holland are you referring to?

PN1026

Yes?---Yes, that’s correct.

PN1027

And do you accept that various reasons for opposition have been raised by you and your fellow delegates and union representatives in relation to this
issue?---Yes, yes that’s correct.

PN1028

And do you accept that it’s been indicated on at least one occasion that the catalyst for this matter is the non replacement of the AMWU members who have left in recent times?---Yes, people have said that if Alcoa wasn’t in, you know, in this push to reduce numbers then we’d have the proper resources to keep safety on the site, that’s right.

PN1029

And you’re also aware that it’s been said that the AMWU is unwilling to agree to work being given up that they perform at the moment, or words to that
effect?---Yes, that would be correct.

PN1030

Words to the effect, that there’s a concern, because there’s no history of anyone who’s not an AMWU member performing the role of the third person on the commissioning process?---That’s correct.

PN1031

And you indicated today, I think, that you’ve never worked with production people yourself?---Not directly, no.

PN1032

Do you know any production people?---I know them from outside of Alcoa, yes, but not like, there’s people in the plant, who have been friends of friends that I’ve met at parties you know, but I don’t like know them at work, if you follow
my - - -

**** JOHN PAUL JOHNSON XXN MR WATSON
PN1033

You don’t have any dealings with any production people in the course of your duties?---I do with the union people from the AMWU and my only other contact with production people is that when we go down and do this job we actually notify the production people that we’re about to begin the job, you know, that we finish the job, et cetera, because it has an impact on them. So I go down and say, good day mate, I’m just going to commission pot such and such, and whatever we are going to tag out the dents phase, and blah, blah, blah, so it’s that level of contact.

PN1034

And do you seriously question that employees engaged in production roles would not be alive to safety issues in the pot lines?---I think that a lot of them are very aware of safety issues et cetera, and I mean they’ve been trained to perform those production roles in a safe way.

PN1035

Yes and to be aware of hazards which exist in their environment?---Absolutely.

PN1036

And you don’t have any reason to believe that they have not been properly trained, or acquainted of the importance of safety by the company?---Well I don’t know about that we – from my personal experience, we’ve just had an asbestos scare in my workshop, the 137 workshop, it turned out that we’d been working with asbestos on a weekly basis for 12 months and it’s come to light that Alcoa does have a training package for asbestos awareness, but they hadn’t given us that training package. So if us guys in the workshop can be left untrained about a hazardous product like asbestos, who’s to know what the production guys haven’t been trained in.

PN1037

So you think there might be some missing ingredients in safety training?---There could possibly be.

PN1038

Thank you no further questions.

PN1039

THE SENIOR DEPUTY PRESIDENT: Any re-examination?

PN1040

MR ADDISON: No, your Honour. That completes the evidence for the respondents, your Honour.

<THE WITNESS WITHDREW [3.01PM]

PN1041

MR WATSON: Thank you, your Honour. We have filed our outline of our submissions and I wish to elaborate on those matters. Firstly, in relation to the jurisdictional issue, we say that the starting point is the relevant clauses of the agreement and the award. I assume your Honour has a copy of the agreement.

PN1042

THE SENIOR DEPUTY PRESIDENT: I do.

PN1043

MR WATSON: We rely on clause 4 of the agreement. In matters such as this it is always a matter of construction of the relevant instruments. My learned friend is correct in his submissions that a dispute must arise from the application of the agreement, must be a dispute arising from the application of the agreement within the terms of the act. Clause 4 is headed, Aims of the Agreement. We submit that this is quite a fundamental provision of the agreement and it says in the second sentence:

PN1044

For a joint commitment to continuous improvement the business will be secured by all employees working together in a consultative manner towards the achievement of business outcomes which will provide outcomes for all employees with enhanced job opportunities and security.

PN1045

It then goes on to say, “this will” and it lists a number of particular matters including paragraph 6:

PN1046

Organised work in a flexible manner across the operation. 7, Facilitate team work and team effectiveness with a focus on enhancing employee appreciation with an impact on the business. 8, Provide appropriate training and development opportunities to enable both individual improvement of job satisfaction to employees . 9, Ensure that employees utilise their skills and develop capabilities in a safe, efficient and legal manner so as to maximise business outcomes and operational performance.

PN1047

Paragraph (b) talks about:

PN1048

To successfully achieve the aims of the agreement the parties recognise the need to cooperate with the utilisation of the principles and tools of the Alcoa business system as defined in Appendix C.

PN1049

And paragraph (c) says more specifically:

PN1050

The parties agree to work cooperatively on identifying delivering productivity improvements that will enable the costs associated with the renewal of the EBA offset.

PN1051

And there’s mention of certain productivity improvements including (vi) implementation of various improvement programs linked to ABS and rules in use and initiatives.

PN1052

The Alcoa business system is mentioned, that is appendix C and it is a longstanding concept that’s been applied at Point Henry.

PN1053

THE SENIOR DEPUTY PRESIDENT: Longstanding concept, what was that?

PN1054

MR WATSON: That has been applied at Point Henry. Many of these systems and provisions have a fair history in predecessor agreements. Many of which were developed and justified salary increases and the like in the past. The Alcoa business system appendix says:

PN1055

It directly connects customers and suppliers to assist in that redesigns works, simplifies the flow of materials and information and constantly eliminates waste. ABS is simply about all employees continuously identifying improvement opportunities and rapidly implementing these improvements to enhance the business performance.

PN1056

And then what that’s achieved by and there’s a sentence in the middle of the page:

PN1057

These outcomes are achieved through the recognition, development and utilisation of the skills and abilities of all employees.

PN1058

And it’s this flexibility in work that is inherent in its system, and emphasised in very important terms in the aims of the agreement.

PN1059

THE SENIOR DEPUTY PRESIDENT: Are you saying that that creates an enforceable entitlement in the aims as such?

PN1060

MR WATSON: Your Honour, ultimately, yes. What this does is indicate certainly in quite general language commitments that the parties have made, as part of the agreement. Including within a clause that is headed Aims of Agreement. And in terms of a specific obligation to pay a salary rate of x, is not of the same nature, but it is a commitment of the parties to work in a certain manner and if there was not a compliance with working in the manner that has been agreed and written into agreement as the Aims of the Agreement, then there would be a breach of the agreement. Indeed, there would be a fundamental falling down of the aims and objectives of the agreement in some way.

PN1061

We say it’s not necessary to look at it in a technical enforcement manner. What is more important is to understand what the parties have agreed to. What are their objectives. What is the application of those principles and concepts to particular factual circumstances and whether in terms of this jurisdictional issue, whether this particular dispute about flexibility of who may perform a certain role, in pot commissioning, involves the application of the relevant concepts that are dealt with in the agreement.

PN1062

THE SENIOR DEPUTY PRESIDENT: And whether it’s a dispute over the application of that?

PN1063

MR WATSON: And we say very clearly on those terms alone, it is, the application of those very concepts which is at stake here. The company is saying that it wishes to utilise people who it believes have necessary skills to perform particular roles in the pot commissioning phase in order to bring about improvements in productivity by bringing pots on line quicker than would otherwise be the case. And it involves the very concepts that are set out, admittedly in general terms, but certainly in terms that clearly encompass this issue in fundamental provisions of the agreement.

PN1064

We also rely on clause 20 of the agreement, that’s a provision regarding consultation in review and it repeats paragraph (b):

PN1065

The commitment of the parties to the pursuit of continuous improvement processes of programs that are aimed at enhancing business performance. The parties recognise the key elements within any continuous program available for general information sharing consultation and are committed to the further development of these processes.

PN1066

Paragraph (c) talks about the genuine commitment to cooperate in a positive manner with the introduction of change in an ongoing basis. Reference again to the principles of the Alcoa business system and on the part of the management there is a commitment to genuinely consult prior to the introduction of change. There’s reference also to the EDLT, which I might deal with later, but we say that those concepts repeat and reinforce the general notations that are elsewhere in the agreement.

PN1067

The agreement also incorporates the provisions of the award into the agreement by virtue of clause 3, it says (i), but it’s probably the second (i) on the print that I have anyway, it might be that that should appropriately be (b) or something, but it reads:

PN1068

Subject to subclause (c) below - - -

PN1069

THE SENIOR DEPUTY PRESIDENT: Have you tried provision (c) I couldn’t find subclause (c)?

PN1070

MR WATSON: Yes, I think (ii) might actually be intended to be (c) and the second (i) might be intended to be paragraph (b) and it’s just a numbering problem when it comes to numbering those clauses of the agreement. It’s slipped back to clause 3.

PN1071

And by virtue of that provision we also rely on clause 20 of the award and it is a clause regarding classifications, pay rates, allowances, et cetera. It also refers to the Alcoa business system. It sets out principles regarding highly flexible and efficient work and operating arrangements. This is clause 20.2.1(c) including the elimination of all unnecessary demarcation and the implementation of
multi-skilled job designs where appropriate. And concepts of flexibility and
multi-skilling people performing work they are qualified to perform without unnecessary demarcation or restrictions, is concepts which are set out here and indeed, we say, have been used to justify various salary increases over successive agreements and award variations over many years.

PN1072

And we say that the issue that has arisen here clearly involves the application of those concepts and where the company on the one hand is seeking to make a change, and seeking cooperation of acceptance, there is a dispute as to whether that should occur. And we say, that therefore, very clearly the dispute is about the application of the agreement and specifically those provisions. Your Honour, I propose to move to the merit considerations. The approach, we say, there is a longstanding approach.

PN1073

THE SENIOR DEPUTY PRESIDENT: Just before that Mr Watson, and you may be going to come to this in due course. But in your outline of submissions, you say that you refer to this dispute provision in the agreement which specifically sets out the basis upon the disputes and grievances that are to be resolved, namely, on the facts, logic and merit involved. In the event that I’m satisfied that there is jurisdiction, is that the guiding principle that I should be guided by as well?

PN1074

MR WATSON: Yes your Honour, we say that the guiding principles should be whatever can be gleaned from the agreement of the parties. The parties have agreed that disputes, we say, of this nature, that’s disputed, but we say of this nature, are to be resolved. So, whatever guidance can be gained from the agreement itself, should be given effect to. The notion that the parties would ask the Commission to determine disputes that arise from the application of the agreement, we say, also carries with it notions under the Act, under which the Commission is established and should incorporate concepts which come from the Commission’s approach to such matters.

PN1075

THE SENIOR DEPUTY PRESIDENT: So it’s not question then of simple interpretation. It is a question of determining the matter according to the logic and merit involved?

PN1076

MR WATSON: We say that it’s not a matter of mere interpretation. It is a determination of the matters given a broad charter and certainly there is guidance in clause 22(a) determined by facts, logic and merit. But those concepts needs to be put in context and also fleshed out to have appropriate meaning in any given application. And concepts of facts, logic and merit when one comes to matters that can’t be resolved through other steps of the disputes procedure, but are referred to the Commission for arbitration ultimately, which is the step we are in, we say must bring with it merit considerations that follow established approaches of the Commission given the guidance from the relevant legislation and the approach of the Commission in other cases.

PN1077

So we say merit has a broad meaning and the cases that I propose to take your Honour to, we say gives a further guidance in relation to the approach to be taken. I don’t propose to deal with it in any great detail, but we have a file of cases and I’ve handed that to the Commission.

PN1078

THE SENIOR DEPUTY PRESIDENT: Sorry I didn’t mean to divert you. Thank you.

PN1079

MR WATSON: Your Honour I should apologise to the environment I think, for he amount of paper work in these cases, and we don’t propose to go through it in detail. In fact, the first case is the XPT case Full Bench 1984 of the Commission in October 1984. Most of the cases in fact are attached in court of Commissioner Johnson, the only reliance we place on it is at page 191 of what is the CAR 296. And this is the passage at the top of that page, the first half of that page which sets out the principles that the Commission should apply in circumstances of a manning issue which was before the Commission on that occasion. It is an oft quoted passage and I simply rely on that first half of the page in particular at paragraph (d) on the page where the Full Bench says:

PN1080

It seems to us the proper test to be applied and which has been applied for many years by the Commission, is for the Commission to examine all the facts and not to interfere with the right of the employer to manage his own business unless he is seeking from the employee something that is unjust or unreasonable. A test of injustice or unreasonableness would embrace matters of safety and health because a requirement by a employee to perform work which was unsafe or might damage the health of the employee, would be both unjust and unreasonable.

PN1081

We have put in some other cases which are to the same effect, but really demonstrate the - - -

PN1082

THE SENIOR DEPUTY PRESIDENT: Sorry, it’s an interesting passage because in this case the applicant was the union and it was saying they wouldn’t interfere with the exercise of the employer’s prerogative, if you like, to man however it pleased. And I suppose there’s no reason why I should interfere if the employer in this case, says well we can do that, then there’s no reason why it should interfere with it. Does that come down to a question of the application of the agreement?

PN1083

MR WATSON: We say that this is the approach when there is a dispute over a particular change in a work practice and that’s the very nature of the matter that we have here. In that case, a reduction in manning and less people performing a particular role, and in the course of determining whether that change should occur or not under the relevant provisions of the Act at the time, as part of the disputes settlement role, provided by the Act in the circumstances of this case, that that is the approach that is adopted. We say that very clearly the notion under the disputes procedure embraces this concept and the question of merit comes under a similar scenario. The Commission expressed itself in that way, that it is not appropriate to interfere unless a certain finding is made as to unreasonableness, and directly to health and safety. And we say that ultimately the question of merit is of a similar nature. That the company consistent with the objects of their agreement and the needs of the operation which are explained in the evidence, should be permitted to organise the work as it deems fit. And unless it can be demonstrated, that the particular work arrangements impose unreasonable demands on employees for one reason or another.

PN1084

THE SENIOR DEPUTY PRESIDENT: I mean on the basis of the principle, assuming that I found there is jurisdiction, I need go no further than be satisfied that the action proposed by the employer in this case is not unreasonable?

PN1085

MR WATSON: That’s correct, your Honour. And that would be your Honour, we say, a determination based on logic and merit and the facts of the circumstances as presented to the Commission in the course of these proceedings.

PN1086

THE SENIOR DEPUTY PRESIDENT: Yes, you then go to some other?

PN1087

MR WATSON: Yes, the only reason for recording the other cases is to show that numerous members of the Commission have applied the very same principles in many different contexts and other cases. Commissioner McKenzie set out the principles in some more detail in an earlier case and we rely on a passage at page 482 of CAR, it is again an oft quoted passage where he in turn traces some of the history of the application the principle over many years, going back to the first principle of the first President of this Commission. The passage commences at point 7 of the page and continues over to point 3 of page 485. I don’t go to that but we rely on that.

PN1088

The next decision is a decision of Bolton J in a matter concerning Santos. His Honour usefully looked at the principles and approach in relation to a manning dispute, page 9 of the print, which is not contained in the CARs, second paragraph of that page 9, indicates the principles that have been applied by the Commission as to the general approach and quoted decisions of Commissioner Payne in New South Wales Commission and the passage through to the end of that page is what we rely on. The next decision is a decision of Commissioner Smith in relation to Pilkington, we rely on page 399 CAR, really that page and the following page where there’s reliance on the XPT case which in turn relies on other cases.

PN1089

The next decision is in fact, an application of this principle at this smelter at Point Henry by Commissioner Stanton in March 1980, in relation to the work of programmable logic controllers. A dispute had arisen as to whether they were the exclusive domain of the ETU, or whether other employees who had the skills to perform the work should be allowed to work on those matters and really an application of that principle at page 243 at the centre of that page, are similar statements where the principle was applied in that case. And the final decision we rely on concerns a matter at the start up of the company’s Portland smelter where an issue arose as to who was to perform the work of pot line of the initial pots. The decision was in fact a joint sitting of the Federal and Victorian Commission.

PN1090

THE SENIOR DEPUTY PRESIDENT: With the current President as counsel?

PN1091

MR WATSON: The current President appeared in the matter, your Honour. I won’t say who instructed him on that occasion. The principle that we rely on is at page 283, point 6 of the page.

PN1092

It was a most compelling factor in our reasoning as the company concerned wishes to operate in a manner seen on our inspection and it is fundamental that employers should have the right to direct their line in method and measure in which work shall be performed.

PN1093

It is obviously subject to the caveats of reasonableness and those sort of matters that are dealt with and in fact, in that matter, evidence was lead by, from retired Commissioner Stanton about the approach to union coverage and other issues in the aluminium industry. But we don’t take those matters any further. We say that a combination of the provisions of the agreement and the approach of the Commission and indeed of the provisions of the Act, including section 3 in terms of the objects to achieve higher productivity and the general approach of the Commission to determine matters under section 110 with principles of equity, good conscience and the substantial merits of the case, are consistent with the principles to be applied.

PN1094

We say that that longstanding and traditional approach of the Commission to matters of this nature should be applied in this matter. We say that a further factor is one that I referred to earlier in relation to the jurisdiction consideration, that the relevant provisions of the agreement set out concepts and aims in terms of flexibility and utilising skills, that employees may have without artificial restrictions and that suit the needs of the work in hand and notions of continuous improvement. And the fact that those notions have clearly justified successive renewals of the agreement and wage increases, is a further important factor.

PN1095

When it comes to the general merits and the application of them, we say that the company obviously seeks to operate in a certain manner for clear and obvious and explained productivity reasons. They were explained in the evidence of Mr Adornetto, and the needs of the smelter to reduce down timing of pots and their replacement has been fully explained to justify its courses of action. We say that it’s not necessary for the Commission to form a view about that, but clearly the company has that justification. It has approached this matter by being prepared to explain why it is wanting to make these changes and to seek through consultation a commitment to the changes for the purposes that it seeks. It is not a matter that is sought to be dictated to without any explanation or justification. It has been a highly consultative process that the company has adopted.

PN1096

THE SENIOR DEPUTY PRESIDENT: There’s some dispute about whether the matter went to the EDLT isn’t there?

PN1097

MR WATSON: Yes, your Honour. In Mr Johnson’s statement, he indicates some surprise that it went in that way. What is clear your Honour, is that the union did put this matter into dispute by generating a notice and putting the matter in a 14 day dispute under the dispute settlement process. The EDLT itself, the employee development lead team, is a concept that’s dealt with in clause 20 of the agreement and it provides that it’s a forum where consultation occurs between the parties on strategic issues affecting the parties to the agreement. The introduction of significant management on the part of the company, the use of non permanent labour and other matters which we say are not relevant.

PN1098

We say clearly that is a matter that to deal with more significant issues than mere changes in work practises in particular functions in the smelter and it’s not to be a forum whereby any issue has to be channelled before it can go through that. But we further say that there has been ample opportunity if the union believes it should be addressed in that forum, for the union to take it to that forum and they’ve chosen not to do so. And there’s been ample opportunity and there’s evidence in these proceedings that the subject of the turn around time for recommissioning pots has been the subject of discussion in that forum.

PN1099

If there was concern as to how that might have been achieved and it was appropriate to raise those concerns and the union wished to raise it, they could have done so. They’ve chosen not to do so. The company obviously doesn’t believe it was necessary to raise it through that forum either, but rather it was appropriate, given that the union put this matter in dispute, that it be pursued under the dispute settlement process and there is evidence that a report was given to the EDLT of that matter being addressed through that mechanism. The fact that it was being addressed wouldn’t have precluded a resolution being reached at any time, by the EDLT or any other forum prior to this matter falling for determination. It hasn’t been resolved and it does, after several months, fall for, we say, determination by the Commission.

PN1100

THE SENIOR DEPUTY PRESIDENT: But the union said it was a safety issue, didn’t they? Wouldn’t that be a matter within the purview of the EDLT?

PN1101

MR WATSON: Your Honour, it would not be appropriate to suggest that any safety matter has to be referred to by the EDLT. It is not the function.

PN1102

THE SENIOR DEPUTY PRESIDENT: Well, what would be the normal course for resolving a safety issue dispute

PN1103

MR WATSON: Safety issues potentially arise every day of the week.

PN1104

THE SENIOR DEPUTY PRESIDENT: No doubt they would in a place like this.

PN1105

MR WATSON: In a place like Point Henry an aluminium smelter that would be inevitable and they have dealt with on the job by the people directly involved and then it is dealt with through appropriate processes through whatever level is necessary to resolve it. But it is not a matter that any disputes are resolve through the operation, or the discussions through the EDLT. Indeed, clause 20 of the agreement expressly states:

PN1106

That the process of referral to the EDLT will not prevent any of the parties to the agreement exercising their right to utilise the resolution of the disputes process contained in clause 22 of the agreement.

PN1107

That’s in paragraph (g) and that’s what the union did in terms of putting this matter in dispute. They did so because of their concern that the company had indicated that it was not convinced that there was any valid reason why it should not proceed having undertaken a various consultation and directive of the work group and its representatives. So it had that earlier consultation, it reached that position, the union was concerned about implications of pressing ahead with that and put it into dispute, which effectively triggered a status quo arrangement pending the resolution.

PN1108

But these processes, the dispute resolution process, deals with matters which cannot be resolved and the evidence clearly establishes the common membership of the EDL team, but a proper reading of the scope and application of clause 20 and the function of the EDLT would suggest that it deals with broader issues of more general concern, and are strategic issues, the introduction of significant change, not every single work practise or not every single time that a safety issue or concern is raised. And that in any event the dispute settlement process runs in tandem and parties have rights to pursue matters under those provisions.

PN1109

Your Honour, we say that the job in question here is subject to a standard work instruction which is in evidence. It identifies the steps that must be taken. Clear evidence that it is based on a HIRA, a hazard risk assessment, and was conducted relatively recently. The evidence establishes that both of these documents were developed with the input of employees. It was developed by different people, at different times and in different ways. But in both senses enabling the input of employees to perform the work.

PN1110

We say that there cannot be any doubt that the company has an absolute commitment to health and safety of employees, and there cannot be any doubt that the systems in processes regarding safety and work practises that the company has adopted, as evidenced in relation to the SWIs and HIRA, in relation to this matter represents, best practise. We say that it is clear on the evidence that the particular processes here have been developed with a high priority on safety. The fact that the working system is written by the occupational health and safety delegate and clearly as I said, it’s done on this occasion through a highly inclusive process with the major involvement of employees who perform the work, including the OH and S representative, in designing the steps in this process.

PN1111

And when the company identified through the need to perform pot commissioning on back shifts and weekends, a production requirement that involved a better way of working, what the company did is adopt a very, we say, commendable consultative process, to endeavour to explain the reasons for the change and elicit reasons for opposition. And it’s attempted to explain the logic of its change and attempted to give assurances on safety considerations. Yet, it is clear it has met opposition from the AMWU. It has been accepted in evidence, Mr Johnson, that a variety of reasons had been advanced in opposition to the change. And those reasons include the concern about the numbers of AMWU members employed by the company at the smelter. And notions of the particular change would involve work that had previously been performed by AMWU members, being performed by members of another union.

PN1112

And Mr Johnson agreed that it had been said in the discussions that in fact, a catalyst for the union’s opposition was the non replacement of employees who had recently left the company and not been replaced. In other words, the overall manning levels. They have also said that there are safety concerns and it is entirely appropriate if there are safety concerns they are raised, and dealt with and discussed and considered and if they have validity, then appropriate steps are taken in relation to justified safety issues.

PN1113

The company has given consideration to those matters. It has given evidence as to what it considers to be the appropriate and correct position in relation to those safety concerns. And obviously it’s not a matter that whenever employees say they have a safety concern, that the company should act on that position advanced to it without any question. Indeed, we say that that is a totally inappropriate approach for a number of reasons.

PN1114

THE SENIOR DEPUTY PRESIDENT: There’s an occupational health and safety representative, isn’t there?

PN1115

MR WATSON: There is an occupational health and safety representative. There are provisions of the Act which deal with risks to safety and it’s been accepted in evidence that if there is any concern about an SWI or a work practise that is dealt with in a particular job, there is opportunities to review standard work instructions and work methods to have regard to those matters. But we raise the more general point that it can’t be simply that determined in this matter, or indeed on the company’s approach to the matter, that if employees say they have a safety concern, the company should act on that and give effect to their concern alone. The proper approach to safety does involve a rational and logical consideration of matters which are raised, employees should be encouraged to raise matters, as such with the company.

PN1116

THE SENIOR DEPUTY PRESIDENT: But there’s no evidence before me, is there, that the occupational health and safety representative has made any representations to the company about the problem?

PN1117

MR WATSON: No your Honour, the union has conveyed to the company it’s members are concerned about the occupational health and safety aspects and that appears to stem from a concern that while the pot end controller would be expected to have, be aware of hazards in the pot room, they do not have trade skills so they are not aware of the particular hazards of performing the work that the employees are performing. That’s my attempt to paraphrase the thrust of Mr Johnson’s evidence. And we say, that very clearly the way this job is designed and can clearly operate is that the two tradesmen perform the duties.

PN1118

The role of the third person is clearly identified as a safety spotter. That role is to primarily look at hazards in the pot room and be aware of those while the duties are being performed, and to take whatever steps are appropriate. It may be if a crane is approaching to make the crane driver aware that work is being done in the above superstructure and a pot being commissioned. It may be to alert a pot room operator of an incident of a pot nearby, and it may also be that if there’s a major incident on a pot nearby to stop the work being undertaken by the tradesmen. It might involve any number of those things, and that is the role. There is conflicting evidence as to what people think is the best position for the person to be in and those sort of things, and it appears that practises have come to light in the course of these proceedings, which indicate something of a disconnect between some of the practises and the approach, the what company believes is appropriate for that safety spotter role to be undertaken.

PN1119

But these matters can be dealt with and discussed by the parties themselves and they are not the issue involved here. Nor is the issue as to how long the safety spotter should be present while this function is being undertaken. The positioning of that person and all those sorts of things are matters which the parties can further discuss and deal with, with appropriate OH and S guidance, and appropriate applications of the relevant systems.

PN1120

And issues about the scissor lift, if it’s appropriate to have a safety spotter nearby and it’s considered that if a process controller was the safety spotter, that person should move from wherever they might be otherwise to the narrower aisle, while the scissor lift, part of the job is being undertaken. And this is a time when they are not over the superstructure itself, they are off to the side, connecting the aluminium feed and other pipe work et cetera. Those matters can be dealt with by the parties and there can be consideration of the SWIs and indeed, if there are issues as to accuracy, and more detail about how the work is performed and where people should be located, those are matters that can be dealt with.

PN1121

But none of it really goes to the issue, of whether it is inappropriate, unreasonable, unsafe, or anything else or a process controller to perform that safety spotter role when the company wishes to have a pot commissioned when the shift tradesman are performing that role, it is not the 137 workshop tradesman.

PN1122

THE SENIOR DEPUTY PRESIDENT: When you say shift, it is only the back shift and the weekend shifts?

PN1123

MR WATSON: Yes, and the primary desire of the company concerns the back shifts and the weekends. At the moment the work is done during day or afternoon shift, there is sufficient people from the 137 workshop to be deployed. The usual situation is three people come down, the company is not proposing to interfere with that situation, if there are three people available.

PN1124

THE SENIOR DEPUTY PRESIDENT: Again, sorry to interrupt, the weekend and back shift, it is only when the third tradesman is not available and is otherwise required?

PN1125

MR WATSON: Yes and there are number of changes there. Firstly, there is no one in the 137 workshop that’s a different group of tradesman that are performing the commission work, they are the shift tradesman. And there’s frequently an issue as to whether there are three available to perform that work and if there are not three, then to, nevertheless, to allow the commissioning to occur at that time, with the process controller being deployed in the safety spotter role as part of the crew in whatever particular job. So it’s not simply a matter of concerns and effects on employees in the 137 workshop. The primary effect really is the shift tradespeople who are called on to do this work from time to time and those people work on shift with process people throughout the operations.

PN1126

To suggest that it is unreasonable or a threat to their health and safety to have the most senior processing employee on site perform that role, we say is not a fair concern and is not in any way an unreasonable demand on employees to require them to operate in that way with the process controller providing the necessary assistance. And we do raise a further concern in that it is imperative in a operation like this that issues of not only the issues of continuous improvement are given effect to, but issues of health and safety are given proper and due consideration. And certainly, it would be inconsistent with that if health and safety issues were used for an industrial purpose.

PN1127

And the evidence which does exist, which indicates that there are other concerns and oppositions relating to manning levels, and other reasons, does indicate, we submit, an inappropriate intrusion of industrial issues into issues of efficiency and the proper application, and objective application of health and safety issues. It does appear to us that there is an underlying issue that is behind the opposition of the union to this matter, and that is the manning issue. And that including the fact that it involves the opposition of work that is currently undertaken by members of the AMWU being performed where required by members of another union.

PN1128

We say that from the cases that have been presented, and the evidence, there is no serious challenge to the expertise of the process controller to perform the work in questions. There is no challenge to the notion that the change improves productivity, if that results in pots being brought back on line earlier than would otherwise be the case, it has not been established that in anyway the work cannot be conducted in this way consistent with the hazard analysis and the standard work instructions. And we say that the arguments in opposition may well involve questions as to the appropriate approach to health and safety and the proper positioning of the safety spotter to properly undertake the work in question and that is obviously something which should be the subject of further consideration by the parties on site. It can be done in any event regardless of this matter, or the outcome of this matter.

PN1129

So for those reasons your Honour, there are clearly no unreasonable demands on employees or any threats to safety and the Commission should determine this matter by finding that the process controller can be deployed as the safety spotter, when deemed necessary to have pots commissioned in a timely manner. Unless there are any questions your Honour, those are our submissions.

PN1130

THE SENIOR DEPUTY PRESIDENT: No, thank you. Mr Addison

PN1131

MR ADDISON: Your Honour before I start, the application that was filed with regard to this matter, did not contain a draft order. No draft order has been filed. The application was in somewhat different terms to what is normal. It is normal in a section 170LW application to append a copy of the disputes settlement procedure and append a copy of the order sought. Now we have no understanding, except a most general understanding of the order sought. I would ask my friend if he could clarify the order that is sought, so I can then confine my submissions to those matters rather than ranging widely to try and capture all the possible permutations that my friend might have in mind. So I would ask that that be clarified, your Honour?

PN1132

THE SENIOR DEPUTY PRESIDENT: Perhaps it would assist Mr Watson, if you could say what the terms of the order are, that you are looking for, seeking.

PN1133

MR WATSON: Yes your Honour, whether it is an order or a determination, a disputes procedure provides for a matter to be settled by arbitration. That could be in a form of a determination it need not necessarily be an order - - -

PN1134

THE SENIOR DEPUTY PRESIDENT: Or a declaration?

PN1135

MR WATSON: Or a declaration. But without getting into the legalities, the issue squarely addressed in the application is, whether the company can deploy a process controller to perform the role of the safety spotter in the pot commissioning process when deemed necessary by the company. It is not necessarily the purpose of a determination, but obviously the proposition put by the company is in the context of the company wishing to have pot commissioning undertaken at a time when it is not possible to have three tradespersons deployed to perform that role.

PN1136

MR ADDISON: With all due respect to my learned friend, he has reposed the question rather than given the answer. I presume my friend wants a determination that says Alcoa is entitled to use two tradesperson and one PC or other person of their choosing whilst commissioning pots. I think it would really assist your Honour, if the order could be put in writing over the next say, 10 minutes, let’s have a break for 10 minutes. My friend could put the order in writing and then I can address my submissions to that. But I think that’s fair to the AMWU so they acknowledge what it is addressing.

PN1137

THE SENIOR DEPUTY PRESIDENT: Why wouldn’t a simple declaration, assuming that of course that I rule in favour of the company, or I find first of all there is jurisdiction and rule in their favour. A simple declaration that stated that the company’s requirement for the process controllers to be utilised as safety spotters in the back shift and the weekend shifts in the absence of the availability of the tradesman, or something like that, is not unreasonable. I don’t know, I’m just saying.

PN1138

MR ADDISON: If that’s what my friend wants, that’s what my friends wants and I’m happy to address that. We just don’t know what my friend wants at this point in time, that’s all I’m saying.

PN1139

MR WATSON: We are content with a declaration in those terms, your Honour.

PN1140

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1141

MR ADDISON: So what’s the declaration say again?

PN1142

THE SENIOR DEPUTY PRESIDENT: Well I don’t know that it is going to say it but - - -

PN1143

MR ADDISON: Well your Honour, it’s fair that we know what we are addressing.

PN1144

THE SENIOR DEPUTY PRESIDENT: Yes, that’s what he said.

PN1145

MR ADDISON: I’m not trying to constrain my friend in what he seeks.

PN1146

THE SENIOR DEPUTY PRESIDENT: On the material before me and on the authorities that have been referred to by Mr Watson, I mean you might persuade me to a different view with other authorities, but on the basis of those authorities and on the basis of the evidence and the submissions, if I came to the conclusion that there was, that the employer was entitled to some form of relief, then my view is that it ought to be some sort of a declaration in the terms of the Alcoa’s requirement for the utilisation of process controllers as safety spotters on the back shift and weekend shifts, in the absence of an available tradesperson, is not unreasonable. Now I don’t know that that meets the requirements of the company or not, if that is what the company is seeking that may be the basis upon which I can make it.

PN1147

MR WATSON: Your Honour, we’d be content with a declaration. We think it’s clear as to what the dispute is about and that it is appropriate that the Commission determine the dispute. It could be put in a number of different ways. In paragraph 10 of our outline of submissions, we’ve put it a similar way, but slightly differently.

PN1148

THE SENIOR DEPUTY PRESIDENT: Which paragraph?

PN1149

MR WATSON: Paragraph 10, your Honour, filed and served on 8 July and we would be content with a declaration in those terms or in a way that I’ve described it could be expressed in different ways, subject to the Commission’s consideration. But for the purposes of the proceedings we think it’s sufficiently clear from the material we’ve filed.

PN1150

THE SENIOR DEPUTY PRESIDENT: I suppose Mr Addison, the point is this. I mean first of all I have to be satisfied that there is jurisdiction, you’ve taken that point. Secondly, I have to be satisfied that it is over the application of the agreement and what part of the agreement relates, and then if I’m satisfied as to all that, whether on the merits and the facts of the matter, I can come to a conclusion that some sort of relief should be granted.

PN1151

MR ADDISON: I think the way that you put it your Honour, and if I understand the way that you put it, it is a declaration in the terms that I’ll call requirement, for the utilisation of production controllers as safety spotters, on back shifts and weekend shifts in the absence of tradespeople, is not unreasonable. Or alternatively, as Mr Watson said, the Commission determines, if I can paraphrase and rephrase paragraph 10, the Commission determines that employees in the maintenance area should perform the cell superstructure in the commissioning work if the safety spotter role is performed by another maintenance employee or a process controller, full stop. Of course, they are very different questions. Yours is somewhat more limited than the way it’s put by Mr Watson.

PN1152

THE SENIOR DEPUTY PRESIDENT: Well it’s not my role to limit it unless I find ultimately that that’s what it should be.

PN1153

MR ADDISON: Indeed, your Honour. I’m just trying to find out the scope of what we have here.

PN1154

THE SENIOR DEPUTY PRESIDENT: I think perhaps we should operate on the basis that the remedy set out in clause 10, or paragraph 10 of the outline of submissions probably states what the company’s seeking.

PN1155

MR ADDISON: So the way I’ve put it, I presume that’s what Mr Watson wants though, just for clarity I’ll put it again. The Commission determines that employees in the maintenance area should perform the cell superstructure commissioning work if the safety spotter role is performed by another maintenance employee, or a process controller. Is that what the company seeks? I think it is, but if I can just have clarification of that, that would assist me your Honour.

PN1156

MR WATSON: Together with the second sentence, yes your Honour.

PN1157

MR ADDISON: The second sentence?

PN1158

THE SENIOR DEPUTY PRESIDENT: To perform work as directed, in that paragraph.

PN1159

MR ADDISON: Okay, so you want the lot?

PN1160

MR WATSON: Yes.

PN1161

THE SENIOR DEPUTY PRESIDENT: So, it’s a McDonald’s is it?

PN1162

MR ADDISON: Your Honour the AMWU submission is cadged on two fronts I guess and it’s put in the alternative. First of all the AMWU submits that there is no jurisdiction for this matter to be dealt with by the Commission, on the authorities with regard to section 170LW applications. Secondly, if we are wrong, we will jump to that, but the industrial merits are such that the Commission should not grant the company the relief it seeks, that the Commission should in fact determine that the matter is one which is better dealt with at the workplace by the employer and employees collectively. We would say, that is in keeping with the current scheme of workplace law, rather than the previous scheme of workplace law that my friend relies on.

PN1163

You will note your Honour, that every single authority my friend has put to you with regard to the question of discretion and industrial merit predates the Workplace Relations Act. They all go back to the previous regime. There is not one authority which is beyond 1996. And of course the Workplace Relations Act has significantly changed in the emphasis in the Workplace Relations Act. Significantly changed in 1996 in that the emphasis was removed from central determination to a one more focused on employers and employees resolving their differences in the workplace and hence, the principle objects of the Act and the particular objects of 3(b) and the objects of 3(b) requires wherever possible matters be dealt with at the workplace or as close to the workplace as possible. But I will come to that.

PN1164

Section 170LW empowers the Commission under certain conditions to settle disputes over the application of an agreement. We say that that means that the matter should be resolved, must be a matter that arises fairly and squarely under the terms of the agreement or as Commissioner Raffaelli put it in the Maritime Union of Australia and the Port Authority. The dispute about something not specifically dealt with in an agreement cannot be within the jurisdiction. We urge you your Honour, to adopt that reasoning of Commissioner Raffaelli. It is reasoning that is supported by all of the authorities that deal with section 170LW and all of the Full Benches. It is clear from the Full Bench authorities that the Commission’s approach to that section 170LW is it must be a matter that is dealt with specifically in the agreement.

PN1165

THE SENIOR DEPUTY PRESIDENT: I’ve just said pretty much the same thing in a MUA case myself.

PN1166

MR ADDISON: Indeed. Generalities just don’t cut it your Honour. Now my friend’s submission relies upon generality, upon generality, upon generality. There is no specific term in the agreement that could give a jurisdictional basis to grounding or as sought by my friend, none whatsoever. It is not the Commission’s role with respect to the Commission, to rewrite the agreement. Nor is it the Commission’s role to create new obligations on parties. None arises out of the authorities too, your Honour, as I am sure you are well aware. To grant my friend his order, would require the rewriting of the agreement. It would require section 4 or section 20 of the agreement to be rewritten to impose the new obligation and a new work practice into the document.

PN1167

A fair reading of section 4 is that it is a process and nothing more than a process. It is a process which has been agreed by the parties to address general improvements in the plant. Your Honour, in terms of that MUA decision of yours, it was quoted by a Full Bench in 2003 in the National Tertiary Education Union, a case I dealt with in the outline of submissions, but what you said was:

PN1168

An important limitation of the Commission’s power under Section 170LW with the kind of disputes that may be subject to resolution by the Commission. Parliament has authorised the Commission to exercise power under an agreement to settle disputes over the application of an agreement. And I emphasise - - -

PN1169

You emphasise:

PN1170

To settle disputes over the application of the agreement and accordingly it’s powers are limited to disputes of that kind. Therefore, it is necessary for the Commission in each case where it’s asked to deal with a matter arising under the disputes procedure in an agreement to ascertain the character of the dispute that is before it in order to determine whether the matter is a dispute over the application of the agreement and importantly the character in the dispute is distinguishable from the orders that may have been made in settlement of the dispute.

PN1171

Your Honour, we say that’s the correct approach and we say on a fair reading of the current agreement and what is sought in terms of the remedy in this particular matter, I cannot without straining the English language to a massive degree be seen as a matter that arises from the agreement. The Full Bench in the Ansett case, which is reported Print 1467 which is an appellant decision of his Honour Vice President Ross - - -

PN1172

THE SENIOR DEPUTY PRESIDENT: That’s a matter that’s referred to in
your - - -

PN1173

MR ADDISON: That’s been referred to in my outline also your Honour. That was a matter where the agreement contained a classification structure and the agreement had pay rates for particular types of aircraft. And Ansett bought a new aircraft it was a 747 400 series, I think rather than a 747 300 series and the Commission was asked to determine the dispute and to plant a period if you like, for the 747 400 pilots because they hadn’t been catered for on the ground – and there was certainly a general arrangement, there was a general scheme by which periods were settled, by which disputes were settled. His Honour Vice President Ross found and the Full Bench supported the proposition that it wasn’t a matter that was specifically under the agreement and therefore it was beyond the jurisdiction of section 170LW.

PN1174

We say that this case is basically on all fours with that proposition. You have a general scheme and a general commitment for consultation for discussion for cooperation. There’s been no evidence given that the delegates and that the members of Alcoa have been uncooperative. In fact, the whole tenure of the evidence is exactly in the opposite direction. The employees and the delegates have been cooperating with management in a way to try and resolve issues. Mr Johnson gave evidence this afternoon that he has said specifically to management that we will work with you to try and resolve these problems. The evidence of the two management witnesses, was of the same tenure. So there’s no evidence that anybody has been uncooperative, it’s just that management isn’t getting the answer they want. That’s the only point that’s put.

PN1175

So we say that this is not a matter that arises fairly under the terms of the agreement, and there is therefore no jurisdiction. Your Honour, if we are wrong about that, and I rely on the cases that I have put in the outline your Honour, the cases and the two single decisions, and the various principles we say are contained in those decision. If I’m wrong on that or if you are against me on that, we say that the industrial merits of this work that is sought by the applicant - - -

PN1176

THE SENIOR DEPUTY PRESIDENT: Do you agree that the principle upon which I should determine the matter is that set out in subsection (1), or subclause 1, I should say, clause 22.

PN1177

MR ADDISON: The industrial merits and fairness?

PN1178

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1179

MR ADDISON: Just bear with me your Honour, I’ll just have a look at that.

PN1180

THE SENIOR DEPUTY PRESIDENT: Facts, logic and merit involved. It’s paragraph (a) of clause 22.

PN1181

MR ADDISON: That is the agreement of the parties?

PN1182

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1183

MR ADDISON: That is the agreement of the parties your Honour and I think the High Court would have that the agreement of the parties holds the day. Now your Honour, we say on the evidence that’s been presented, in terms of facts, and in terms of merit, you’ve had three witnesses that have given evidence with regard to this specific job. You’ve had two witnesses from the company and you’ve had Mr Johnson. I think in fairness when you approach this question, you ought to approach it with a bit of caution. In my submission, matters which are generally, and genuinely matters of concern in terms of occupational health and safety, ought not be rushed at. There ought be a real careful look and they ought to be approached with some caution.

PN1184

The evidence that has been lead with regard to the specific occupational health and safety problems is that evidence which was given by Mr Johnson. In my submission Mr Johnson was a credible witness who gave his evidence honestly, precisely and didn’t try and shy away from any questions posed to him by Mr Watson. Mr Johnson did the job three months ago and prior to that he did the job six months ago. He has given evidence that he has done the job 10 times or thereabouts, every year for 10 years. So he’s done the job 100 times or thereabouts. He is an expert at this job.

PN1185

THE SENIOR DEPUTY PRESIDENT: Sorry what was the evidence that he gave about the safety aspects?

PN1186

MR ADDISON: He gave a number of important bits of evidence with regard to the safety aspects. He first of all said that the accompanying witnesses were wrong with regard to where the safety spotter should be. He said he should be in the wide aisle, at a particular point in time, Mr Johnson says he should be on the platform. Mr Johnson says he needs to be on the platform so he is in direct contact with the people doing the work. That the people doing the work are in a noisy environment and if a safety hazard was to arise, the safety spotter was where the employer says he should be, then there would be something in the vicinity of a 30 second or one minute delay whilst the safety spotter alerts the workers on the job. As opposed to the proposition if the safety spotter is where Mr Johnson says he should be he can immediately alert the workers in potential danger. That’s credible evidence your Honour we say.

PN1187

THE SENIOR DEPUTY PRESIDENT: All right, so what other aspects were there of safety?

PN1188

MR ADDISON: Well, the other aspects of safety, the absence of contradiction with regard to an anode problem. You will recall the evidence of the employers witnesses yesterday, that the safety spotter could not be on the platform, he hadn’t been in the wide aisle because that way he could see the lights. Now there was some contention about that question yesterday afternoon with the company’s witnesses.

PN1189

And it was put to the company’s witnesses, that the lights were not the primary mechanism for anode warning and that the lights in fact did not work. Do you recall that? The company’s evidence was, well no that’s not right. In fact, Mr Holland, when I put it to him that 50 per cent of the lights may not work, he responded that’s not right it could be 10 per cent. And I put to him so you mean that out of 1200 lights you might have 120 that don’t work. Now Mr Johnson - - -

PN1190

THE SENIOR DEPUTY PRESIDENT: It is still part of the location issue though, isn’t it?

PN1191

MR ADDISON: Sorry?

PN1192

THE SENIOR DEPUTY PRESIDENT: I mean it’s still part of the location issue. The question of whether or not you can spot the anode lights?

PN1193

MR ADDISON: It goes broader than that your Honour. It goes to the fundamental safety requirements of the job and knowledge of the job, and a knowledge of what is actually happening on the plant. Now Mr Johnson has given evidence, which was not challenged and this is telling in my submission your Honour, absolutely telling. Mr Watson did not challenge his evidence at all on this particular point. And he could have, and it was an absolute contradiction to the evidence given by his witnesses yesterday. But he did not challenge Mr Johnson at all on the basis that the primary warning mechanism for an anode problem is not lights, it is a verbal warning that comes across a tunnellery system, that’s probably an old fashioned term, it’s my term, it may not be right but a loud speaker system and it’s generated through a computer. And secondly, he did not challenge Mr Johnson’s evidence and Mr Johnson checked himself this morning, and out of 52 possible lights on the west side of the building, four were in working order.

PN1194

THE SENIOR DEPUTY PRESIDENT: All right. Other safety issues?

PN1195

MR ADDISON: The other safety issues that Mr Johnson gave evidence about, were the magnetic effects in terms of work in the pot where the magnetic effect could cause movement of plant, and people could be jammed. He gave the evidence of the magnetic effect on the scissor lift and the possibility of the scissor lift being caught in the upward position. The necessity of somebody to be present to let the oil out of the chamber to allow the scissor lift to descend. He gave evidence, absolutely contrary evidence to the employer, and was not challenged at all on this evidence. That the 137 workshop has never ever had a radio and it does not and has not ever had access to the radio. It was not challenged at all. He gave evidence that the way the heat stress policy is applied is significantly different from the way it was applied or supposedly in the company’s evidence it was to be applied.

PN1196

So your Honour, Mr Johnson gave wide ranging and comprehensive evidence with regard to the occupational health and safety issues of the job. And on none of the points, was he challenged. Not one.

PN1197

THE SENIOR DEPUTY PRESIDENT: Mr Addison, I have another matter at 4.30 which will not take very long it’s an agreement which I have to do by telephone and video to Christmas Island, do you mind if I stand this matter down for 10 minutes or so.

<SHORT ADJOURNMENT [4.22PM]
<RESUMED [4.44PM]

PN1198

THE SENIOR DEPUTY PRESIDENT: Sorry about that. Mr Addison, about how much longer do you think you will take?

PN1199

MR ADDISON: Not long, about 15 minutes.

PN1200

THE SENIOR DEPUTY PRESIDENT: All right we’ll continue then.

PN1201

MR ADDISON: Yes, thanks very much. Your Honour the submission I was in the process of making, you had evidence from three witnesses with regard to the actual job. The evidence of Mr Johnson on safety, it was complete contradiction to the evidence of the management and it was unchallenged. The witness evidence of the two management, the evidence was also this. That the maintenance manager, has never done the job, never. The supervisor Mr Holland, has done the job twice, but not in a practical sense, as a safety spotter. And that Mr Holland - - -

PN1202

THE SENIOR DEPUTY PRESIDENT: Sorry I thought he actually – I may be wrong I thought his evidence was that he in fact was involved in doing the job as well.

PN1203

MR ADDISON: My understanding of his evidence was that he had been involved as a safety spotter, but I don’t think anything turns on that. His evidence clearly was, regardless of what role he was in, it was 10 years ago in any event. And he only did it twice. Now as I said earlier, Mr Johnson’s evidence was he’s done the job about 100 times and most recently three months ago. Now Mr Johnson gives evidence that the team is a important component. Mr Johnson gives evidence that the safety spotter is not there as some sort of appendage, as my learned friend Mr Watson would have you believe, that the safety spotter is there simply to spot, simply to warn of possible hazards. That is not the safety spotter’s role. And Mr Johnson’s evidence makes it abundantly clear, that that is not the safety spotter’s role. Once again your Honour, Mr Johnson’s evidence was unchallenged. There was no cross-examination of Mr Johnson with regard to that matter, none whatsoever.

PN1204

THE SENIOR DEPUTY PRESIDENT: What do you say the evidence says is about the primary role of the safety spotter?

PN1205

MR ADDISON: Mr Johnson’s evidence is that the safety spotter is part of the team. The safety spotter goes down with the team. The safety spotter acts in the role of spotting hazards, but rotates. It might be Fred at this point in time, and it might be Bill in an hour’s time and it might be Jim an hour after that. So it rotates around. But the safety spotter is an intrinsic part of the team and the safety spotter does trade work and assists in resolving trade problems. In all senses of the word, is a fully functioning member of the team. Now that’s the evidence of
Mr Johnson, it’s unchallenged. And Mr Johnson’s evidence is that the way that
Mr Holland describes the job he finds unacceptable as a tradesperson on the job. And that was put fairly and squarely to Mr Johnson and Mr Holland’s evidence was put fairly and squarely to Mr Johnson as to what he’d done as a spotter, and Mr Johnson’s evidence was that that would be completely unacceptable.

PN1206

So we say that these matters are matters that should weigh, that you should weigh in terms of your consideration. And even on my friend’s authority, even on the expertise position, they said what are the tests, at least of unreasonableness, would embrace matters of public safety. Now these are matters of health and safety and they are matters of job efficiency. My learned friend seems to be trying to turn this matter into some sort of demarcation dispute. He refers to work being done by people who are not members of the AMWU. Well your Honour, there is no evidence about that, not a skerrick and it’s a submission that your Honour should absolutely disregard.

PN1207

THE SENIOR DEPUTY PRESIDENT: Can’t I take judicial notice of the fact that production workers are not covered by AMWU as a general rule?

PN1208

MR ADDISON: You may your Honour, but where does it assist you in coming to a conclusion? My friend seems to be pointing the scarab and pulling the trigger and hoping it will hit somewhere.

PN1209

THE SENIOR DEPUTY PRESIDENT: It’s just not dealt with under disputes with this company with another union.

PN1210

MR ADDISON: I see what you are saying in the context of this particular matter, your Honour and the context of the evidence seems to be right, neither side has lead evidence. Neither side has suggested at any point that there is a demarcation issue. So my friend’s submission with regard to that matter does not assist the Commission in reaching a conclusion and the Commission should completely disregard that submission. With regard to my friend’s submission that there’s no evidence of the occupational health and safety representative raising these issues, that’s not true.

PN1211

THE SENIOR DEPUTY PRESIDENT: No I asked was there – I think - - -

PN1212

MR ADDISON: Yes you put the question, my friend responded no. My friend is wrong. Mr Johnson gave evidence with regard to that matter at the end of his evidence in chief and Mr Johnson gave evidence.

PN1213

THE SENIOR DEPUTY PRESIDENT: What did he say about it?

PN1214

MR ADDISON: He said the occupational health and safety rep had raised concerns with management with regard to this matter but it was a matter of concern for the work group and the occupational rep also. But more importantly the evidence of Mr Holland, himself, shows the true representation of the occupation health and safety rep in page 1, the safe working procedure. It is in evidence, it is indisputable, it is undisputed that the occupational health and safety rep wrote in consultation with the safety department and the work group, SWI, 174 pot commissioning, and the health and safety rep says very clearly in his resource requirement, 317 personnel brackets, one spotter.

PN1215

It is beyond dispute that there is a requirement 43 of the 137 personnel, one of which would be a spotter. Also your Honour my friend puts a submission that this is somehow, that these occupational health and safety concerns are somehow illegitimate because really secretly underlying this, there is a manning dispute. Well there’s no evidence of that your Honour, there’s no evidence. There’s certainly evidence that there’s a lack of resources. There’s certainly evidence that there’s been discussions about that lack of resources. And certainly, it was put by me to the company’s witnesses fairly and squarely, if you resolve your manning problems, there would be no requirement to go to this step because you would have sufficient resources.

PN1216

The evidence from the company is that they reject that proposition. However, that’s the context in which the manning issues were agitated during the course of this matter. There has been no suggestion and no submission, apart from the final submission of Mr Watson’s that there’s some sort of industrial agenda here. It is not in the outline of submissions.

PN1217

THE SENIOR DEPUTY PRESIDENT: Mr Watson, I think, asked Mr Johnson about the reasons for – or made some reference in fact, to the managed union.

PN1218

MR ADDISON: Yes, indeed Mr Johnson gave evidence which supports the proposition which I put to the employers witnesses yesterday, that if the manning problems were resolved and that if the manning levels were maintained at the level they should be, then there wouldn’t be this resource problem. That’s my recollection of his evidence, you might prove me right or wrong on that your Honour, but that’s my recollection.

PN1219

THE SENIOR DEPUTY PRESIDENT: I think he said something like, something about having the proper resources to do the job, then the issue wouldn’t be, or it wouldn’t be an issue.

PN1220

MR ADDISON: Yes indeed. And these two issues have been coupled together but there’s been no suggestion in any of the documentation, your Honour, or in the way this whole procedure has been conducted up until final submissions, that there’s some sort of industrial agenda being an improper uses of occupational health and safety. We say there’s no foundation for that submission that Mr Watson makes. We say there’s no foundation for the whole course of conduct of this proceeding. It’s a submission which is forcefully rejected, because there is no foundation for it.

PN1221

Commissioner, we say that on all those bases the Commission should determine that no order should issue, or no declaration should issue. We say that the current regime and the objects of the Act and the Commission must be guided by the objects of the Act in the exercise of any of the powers under the Act. The objects of the Act and particularly object (b) of section 3 is that:

PN1222

Ensuring that the final responsibility for determining matters affecting the relationship between employers and employees rests with the employer and the employees at the workplace or at the enterprise level.

PN1223

Now we say that is the appropriate place for this to be determined. We say the appropriate mechanisms and the Commission should refer this matter back to the parties and should instruct the parties to try and reach an agreement through the processes that are outlined in clause 20 of the agreement, that is, the EDLT committee. The evidence is a bit contradictory in terms of what occurred at the EDLT. Mr Mahadinairo says that the matter has been comprehensively dealt with in the EDLT. Mr Johnson says it hasn’t. Mr Johnson says a productivity issue and the productivity issue has been raised but the resourcing issue has not. It’s a question of whose evidence you prefer there. And in my submission, you ought to prefer Mr Johnson’s evidence. We say that Mr Johnson is forthright and honest and didn’t seek to avoid any questions in the box and answered every question. Whereas the employers witnesses, were evasive, and sought to avoid a number of questions, all three of them, your Honour.

PN1224

THE SENIOR DEPUTY PRESIDENT: I thought all of the witnesses were proving pretty frank, frankly.

PN1225

MR ADDISON: That’s a matter for your discretion your Honour, of course. But certainly the employer’s witnesses on a number of occasions tried to evade answers. The transcript will prove me correct on a number of instances. There were a number of instances where people tried to evade answering my questions. And I had to repeat questions numerous times.

PN1226

THE SENIOR DEPUTY PRESIDENT: That would have been because I didn’t understand you, Mr Addison.

PN1227

MR ADDISON: That could be correct your Honour, and that could also be seen as a racist comment.

PN1228

THE SENIOR DEPUTY PRESIDENT: No offence was intended.

PN1229

MR ADDISON: None taken, your Honour, none taken. So we say that this is a matter that the Commission should not impose any requirements on the parties. We say, primarily it is beyond the jurisdiction of the Commission to do so. And secondly, if you are against me on that, it is not a matter which equity, good conscience or the industrial merits would require that an order be issued. They are my submissions, unless you have any questions, your Honour.

PN1230

THE SENIOR DEPUTY PRESIDENT: No thank you Mr Addison.

PN1231

MR WATSON: Your Honour, on the question of jurisdiction, we don’t of course take issue with the authorities relied on and the approach of the Commission on these matters obviously is necessary for the Commission to be satisfied on the question of fact. And it really is a factual inquiry as to whether the matter that arises is a dispute over the application of the agreement. We say that those authorities show, obviously, that one can’t seek to fill in a gap in an agreement by a resolution under such a mechanism. So the Ansett example was where the classification structure did not have a classification for a new aircraft. It was not anticipated by the parties to put in anything else or any process to resolve such matters. So the dispute really involved a gap in the agreement rather than something that arose on the application of the agreement.

PN1232

Here of course, we have provisions which we pointed to which indicate what the parties have committed themselves to in terms of the application of the approach towards change, work practises and processes they are committed to in terms of addressing such matters. And we have a particular matter which has arisen. And the question is how do the concepts that are dealt with in the agreement, be applied to the circumstances that have arisen ion this case, where the company is seeking a change and there is opposition and the company propose a particular work practise. A dispute has arisen, generated by the union, under the disputes procedure, and there is no agreement. The question is how do the provisions of the agreement be applied to this particular dispute?

PN1233

It is a matter which clearly arises from specific provisions of the agreement. We have referred to the specific provisions. The authorities don’t stand for the notion that there must be something absolutely specific as distinct from general. If something can be said to be general, not specific, then it doesn’t arise from the application of the agreement. The authorities don’t stand for that proposition. We say that obviously it is necessary to point to something in the agreement, which is the subject of the disputed application and we say, that the provisions we’ve dealt with very clearly do so, and therefore, there is jurisdiction. The approach we contend for, is consistent with the authorities referred to by my learned friend.

PN1234

As far as the merit considerations are concerned, my learned friend sought to rely heavily on what he said were conflicts in the evidence and the assertion that Mr Johnson’s evidence is to be preferred, and it is not challenged. Your Honour, what the situation is, is that in certain respects Mr Johnson’s evidence as to work practises and what should have occurred and does occur, is in conflict with some of the company witnesses, in certain respects. In other respects, they were talking about different things, as to what should occur as distinct from what does occur, and they were directing their minds to different things. And to that extent there is a conflict in certain aspects of the evidence in a limited sense.

PN1235

To the extent that those matters might be necessary to resolve, and we say, that they are not, there might be a question of whose evidence might be preferred. It might be a question in the context of this matter as to really whether the company’s proposed way of operating has been demonstrated to involve unsafe work practises, it might come to that question ultimately. But to suggest that some significance should be attached to my failure in cross-examination to challenge Mr Johnson on certain propositions, we say is a complete red herring, and an incorrect application of principle. There is evidence of the company’s witnesses, as to what they see as the proper role of the safety spotter and in many respects, the evidence of Mr Johnson, although we don’t contend to be unreliable, or dishonest, or not based on fact, are directed towards different things to what the company addressed.

PN1236

An example of that, it was suggested that some significance should be drawn on Mr Johnson’s statement that employees in the 137 workshop don’t have radios, or don’t carry radios, or what effectively was his evidence. What we are talking about here is on the back shifts and weekends, not employees in the 137 workshop, but the shift trades employees who undertake the pot commission work. In Mr Addison’s submissions that would be contrary to the standard work instruction, but it is clearly in practise, and understood that the shift tradesmen qualify to do this work, can do this and do, do this. But evidence yesterday, and I think it was Mr Holland indicated that the shift tradesmen do carry radios. So in terms of back shifts and the weekends, which is really the essential point we are dealing with here, there would be a capacity to call them to the point the extent that was necessary.

PN1237

It was also said that Mr Johnson’s evidence of what, how the three tradesmen team approach the job, should be accepted, to be far more than what was actually said or established. Because it might be one thing to say this is the way the crew currently undertake their duties. It is quite a different thing, and it’s not been established, that this is the only safe way, that is the only safe way to undertake this task. In fact, the evidence of Mr Holland and Mr Adornetto went into great detail as to what precisely is the hazard, what precisely is the role of the spotter, what they were intended to be looking out for, what they were – how they could perform that role, and how the PC was imminently well placed to perform that role. The fact that it might be inconsistent with the way that some of the work is done at the moment is beside the point and it’s not necessary to form a judgment which is the way that this job should be performed. If there are some issues that require further discussion they can certainly be considered by the parties, and we have no objection to that, we flagged that in our earlier submissions.

PN1238

But to suggest on the basis of Mr Johnson’s evidence that this is the way they currently do the job, that that means that is the only way, we say is not a submission which should be accepted. There was speculation, and a lot of it was speculation and assertion about the question of responsiveness of a safety spotter. Mr Johnson gave evidence if there was a need to tap the tradesman on the shoulder or helmet, I think he said both things at different times, but tapping wherever. And the safety spotter was in the wide aisle, he would have to climb three steps, go along, before getting on to the platform, there’s the grating and then climb the wooden ladder on to the platform and tap the tradesman on the shoulder.

PN1239

He said that it was in his view safer, that the person was on the platform already and able to tap the person on the shoulder instantaneously. That of course doesn’t take into account the evidence of Mr Adornetto and Mr Holland, very experienced people in the pot rooms as to the ability to observe problems with the pots, including tap outs. If someone’s on the platform up near the superstructure, they’re not going to be able to see a tap out at the same time as someone who is standing on the floor in the wide aisle, and there’s a considerable delay before they’re going to be aware of such things. Therefore, an inability to contact the tradesperson.

PN1240

But these are issues, all issues of practical application and discussion as to work practises and positions of people, that can be discussed further by the parties and worked out. Clearly out of this process there has been issues raised by both sides, that have lead to concerns about the other side’s position as to safety, and there are avenues to address these matters as Mr Johnson conceded and other legitimate processes. We say that notwithstanding what might be the desire, what might be the existing practise, it clearly hasn’t been established that it is unsafe, or unreasonable for the safety spotter role to be a process control and the submissions of my learned friend don’t amount to that test, don’t meet that test.

PN1241

We say that this matter has really been the subject of considerable debate and discussion as the evidence discloses over many months, including on a weekly basis in recent times. The outcome proposed by the union is that the Commission should do nothing and direct the parties to address it as part of the EDLT. We say that there’s been no barrier for the parties to resolve this matter themselves by the discussions throughout the entire the process, including up to the hearing today. But they’ve failed to do so and it appears that they’ve reached a point of disagreement, which is unable to be resolved, it’s evidence and submissions today, it needs to be resolved. It’s not healthy that it continue to be an unresolved issue and that it’s appropriate for the Commission to determine the matter, in the manner we’ve sought.

PN1242

Obviously, the parties should continue to have discussions about this issue. Any concerns they have with existing practises of the 137 workshop people during day shifts and afternoons with the wording of the SWIs, with identification of hazards, with proper preparation of process controls, any of those matters can be subject to further discussions in the course of moving forward. But really, the road block that has been reached whereby the union, for whatever reasons and the reasons have been advanced in this Commission and in other meetings with the company and the evidence of those matters, is in evidence in this matter. The parties have reached a fundamental disagreement and we seek a determination of the matter to enable the parties to move forward in a constructive manner. If it pleases the Commission.

PN1243

THE SENIOR DEPUTY PRESIDENT: Thank you. I reserve my decision. I thank both advocates for their very helpful submissions and the witness for their evidence. I adjourn the matter and publish my reasons in due course.

<ADJOURNED INDEFINITELY [5.12PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

JOHN PAUL JOHNSON, AFFIRMED PN851
EXAMINATION-IN-CHIEF BY MR ADDISON PN851
EXHIBIT #AMWU2 WITNESS STATEMENT OF JOHN PAUL JOHNSON PN858
CROSS-EXAMINATION BY MR WATSON PN948
THE WITNESS WITHDREW PN1040