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Australian Industrial Relations Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 12621-1
SENIOR DEPUTY PRESIDENT CARTWRIGHT
C2005/3881
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
AND
WEYERHAEUSER AUSTRALIA PTY LTD
s.170LW - Application for settlement of dispute (certification of agreement)
(C2005/3881)
SYDNEY
10.05AM, MONDAY, 22 AUGUST 2005
Continued from 10/8/2005
PN1029
THE SENIOR DEPUTY PRESIDENT: Good morning, ladies and gentlemen, no change in appearances?
PN1030
MS DOUST: No, your Honour.
PN1031
THE SENIOR DEPUTY PRESIDENT: Ms Doust, I think where we were in proceedings was that you had essentially completed the evidence ?
PN1032
MS DOUST: Yes.
PN1033
THE SENIOR DEPUTY PRESIDENT: Is there anything further you want to put or am I up to stage where I turn to Mr Jauncey.
PN1034
MS DOUST: I think you're up to that stage, your Honour.
PN1035
THE SENIOR DEPUTY PRESIDENT: There are no other preliminary matters or housekeeping matters?
PN1036
MR JAUNCEY: Your Honour, there is just one housekeeping matter that I've raised with Ms Doust. On the last occasion during the evidence of Mr Bruce Withers, he had identified his timecard for the week ending 13 February 2005 and a copy of that timecard had been tendered as exhibit R1. Unfortunately, your Honour, the copy of the timecard tendered was the only one in our possession as it had just been given to me that morning and I was wondering whether we could prevail upon your Honour's associate to have a copy made for both parties.
PN1037
THE SENIOR DEPUTY PRESIDENT: You'll be glad to know I do have it, Mr Jauncey.
PN1038
MR JAUNCEY: Good. Thank you, your Honour. That's the only preliminary matter.
PN1039
THE SENIOR DEPUTY PRESIDENT: Are you wanting then to go straight into calling your witnesses?
PN1040
MR JAUNCEY: Yes, your Honour.
PN1041
THE SENIOR DEPUTY PRESIDENT: I thought you might be.
MR JAUNCEY: Your Honour, I call Mr Clayton Lindley.
<CLAYTON KYE LINDLEY, SWORN [10.09AM]
<EXAMINATION-IN-CHIEF BY MR JAUNCEY
PN1043
MR JAUNCEY: Mr Lindley, would you state your full name and address for the record, please?---Yes. Clayton Kye Lindley (address supplied)
PN1044
Mr Lindley, do you have with you a copy of a statement that has been prepared on your instructions in this matter?---I certainly do, Stephen.
PN1045
Is that statement true and correct to the best of your knowledge and belief?
---Yes.
I tender that statement.
EXHIBIT #R4 STATEMENT OF CLAYTON KEY LINDLEY
PN1047
MR JAUNCEY: No further questions, your Honour.
PN1048
THE SENIOR DEPUTY PRESIDENT: Thank you. Were you wanting to hand up a signed copy of that? The one that I have has not actually been signed, so in saying you tendered it, were you wanting to hand up something?
PN1049
MR JAUNCEY: No. We don't actually have a signed copy. The unsigned copies were provided to the union sometime ago and I think to your Honour at the end of the proceedings on the last occasion.
PN1050
THE SENIOR DEPUTY PRESIDENT: I just want to make sure we've got the same document.
PN1051
MR JAUNCEY: It is the same document. If your Honour feels that it ought to be signed I can make arrangements.
PN1052
THE SENIOR DEPUTY PRESIDENT: No. I just saw you waving something. I wasn't sure whether, with my associate leaving the room to copy that other matter - - -
MR JAUNCEY: No, your Honour, it's the same document.
<CROSS-EXAMINATION BY MS DOUST [10.10AM]
PN1054
MS DOUST: Mr Lindley, in preparing your statement for the Commission you understood that it should be an honest and accurate account, didn't you?---Yes.
PN1055
You understood that the period of the closure of the kiln and boiler was a critical issue in these proceedings?---Yes.
PN1056
In fact, you've understood that's a critical issue in this dispute since no later than 21 June 2005, haven't you?---Yes.
PN1057
Do you say in this statement you've included all the information you know which is relevant to the closure of the kiln and boiler?---Yes.
PN1058
Where you've set out the content of conversations, the company's lawyers have told you to be very careful in how you relate that content in your statement, haven't they?---Yes.
PN1059
I see that in your statement you chose to use this terminology, "words to the effect", before you described conversations?---Yes.
**** CLAYTON KYE LINDLEY XXN MS DOUST
PN1060
Your lawyers explained to you that that meant that you were endeavouring to give the closest possible account of the words used in
those conversations, didn't you?
---Yes.
PN1061
THE SENIOR DEPUTY PRESIDENT: By the way, you don't need to speak into the microphone. It's not performing any amplification task?---No worries.
PN1062
MS DOUST: Can you tell me, from what section of Weyerhaeuser is Mark Jones the manager?---Mark Jones is the - is the business improvement manager but under his task it is also - I'm encompassed as the - has Gilmore site under his jurisdiction of authority.
PN1063
He's currently working for Weyerhaeuser?---Yes.
PN1064
Where is he based?---At the Tumut site.
PN1065
He's one of your superiors, is he?---Yes.
PN1066
He's not dead or living overseas?---No.
PN1067
No other reason you can think of that would stop him from coming to the Commission in Sydney to give evidence?---No.
PN1068
I take you to paragraph 4 of your statement. I see you set out there a conversation with Mr Jones?---Yes.
PN1069
Do you say that that account is a complete and honest account of your discussion with Mark Jones about this issue?---Yes. This is as accurate as I can recall.
PN1070
He was the first person you spoke to about the closure of the kiln and boiler operations, wasn't he?---Yes.
PN1071
You told him at the end of the conversation that you would go and speak with Warren Green about how to roll out the closure, didn't you?---Yes.
PN1072
In that discussion you didn't ask Mr Jones how long the closure would be for?
---No, he was just generally - he couldn't give me a timeframe at the time but it was definitely put to me that it would only be
for a temporary period.
PN1073
Do you say he said it's definitely going to be for a temporary period?---He definitely alluded to that.
PN1074
Where do you say in your statement you set out that he said to you, "It will definitely be temporary"?---Because he stated it was only a period of time and the alternative duties, he didn't ask for there to be new duties. He only wanted alternative duties for a period of time.
PN1075
If you say that he was making clear that it was definitely temporary, that's because of something you've read into what he said?---No, no. He also added to the end of the alternative duties, until the alternative duties, until which time the plant would reopen so they would go back.
PN1076
He didn't give you a definite timeframe?---No.
**** CLAYTON KYE LINDLEY XXN MS DOUST
PN1077
You weren't at all curious to ask him how long he expected the closure might be?
---Not at that time, no.
PN1078
Didn't say, "Geez, when do you think we'll be opening again"?---No. At that time I was more into dealing with the fact of the matter at present. I wasn't reading anything into the future of it.
PN1079
Didn't ask him what conditions might need to be met for the kiln and boiler to reopen?---Not in that particular initial conversation.
PN1080
Weren't you curious about that?---I thought I would find that out in later conversation with Mr Green and Mr Jones.
PN1081
Does that mean you were curious about it?---I guess I was at the time but I certainly didn't feel the need to investigate that at the time.
PN1082
You had a discussion with Mr Green, then?---Yes.
PN1083
Do you say that paragraph of your statement is a complete and honest account of the conversation that you had with him?---Yes.
PN1084
If I can just take you back. Mr Jones said to you, did he, the kiln and boiler operations need to be closed down for a period of time?---Yes.
PN1085
Do you think he used those words?---Yes.
PN1086
Then you spoke to Mr Green and you said:
PN1087
Mark tells me we need to close down the kiln and boiler for a period of time.
PN1088
You say you used those words as well?---Yes.
PN1089
No idea in your head as to how long the period might be?---No.
PN1090
Didn't say to Mr Green how long you thought the period might be?---No. I'm not in a capacity to say that.
**** CLAYTON KYE LINDLEY XXN MS DOUST
PN1091
He didn't say back to you how long he thought the period might be?---The only thing he alluded to was the pick-up of the market that was then forcing the temporary shut of the kiln's boiler.
PN1092
How do you say that Mr Green alluded to the pick-up of the market?---Could well have been in the conversation as I haven't recalled in my statement
PN1093
Sorry, could well have been in the conversation that you haven't recalled?---It could have possibly been in that, that I haven't completely recalled in the statement.
PN1094
I think you accepted before you made some efforts when you were preparing your statement to make sure that you created a complete and honest account?---As best as I could recollect.
PN1095
That was a couple of minutes ago, you were feeling certain about that, weren't you?---Yes.
PN1096
Now you think there might have been something further that Mr Green said to you and you might have missed that in preparing your statement?---May well have.
PN1097
When you spoke to Mr Green, he didn't say anything to you, did he, querying when the kiln and boiler might reopen?---Could you restate that, please?
PN1098
When you spoke to Mr Green, he didn't say anything to you querying when the kiln and boiler might reopen?---No, Mr Green didn't.
PN1099
You were telling him what Mark Jones had decided?---Yes.
PN1100
He didn't say, "Well, how long did Mark say this is likely to go on for"?---No.
PN1101
He just said, "Well, that's right." You say he said, "That's right"?---To me, yes.
PN1102
No further discussion about how long the closure might go for?---No, not at that stage.
**** CLAYTON KYE LINDLEY XXN MS DOUST
PN1103
What I suggest to you is, the period of closure would be something relevant to the way that you would perform your duties?---I'm not understanding of that, sorry.
PN1104
I'll try and give you an example. If my boss came to me and said, for example, "We are shutting down the industrial law section of the firm," I would be fairly curious about it and I would be interested to know what other duties I might be doing for that period?---I've got a number of other duties on that particular site so I'm sure they would continue to encompass my day-to-day business. I was primarily concerned with - one of the main tasks was finding alternative duties.
PN1105
You were going to be responsible for managing eight employees in the kiln and boiler operations?---Yes.
PN1106
For an indefinite period?---Yes.
PN1107
Performing other duties?---Yes.
PN1108
That raised substantial industrial relations issues for you, didn't it?---As far as?
PN1109
Did you think that you could tell those eight blokes to go and do alternative duties for some indefinite period and there wouldn't be questions or trouble?---No. At my level of authority, I would take instructions from my - obviously my supervisors and who I report to regarding with the matter.
PN1110
You're dealing with the day-to-day supervision of these fellows, aren't you?
---Yes, I'm responsible for their day-to-day supervision.
PN1111
You have to, in the course of your job, field their queries?---Yes.
PN1112
You have to deal with their discontent from time to time?---Yes.
PN1113
Did it not occur to you at that stage that having to direct eight employees to do alternative duties indefinitely, might be something that could put you in the firing line for those questions and that sort of discontent?---I guess so, yes.
PN1114
But no questions from either of your superiors as to when you might expect to put an end to that state of affairs?---No, those two superiors would not consult me on the period. I would consult them if need be.
PN1115
You would be left completely out of the loop so far as when the kiln and boiler might reopen?---No, I'm sure they would inform me at a suitable time when it was to reopen.
PN1116
They didn't tell you then?---Not at that stage, no.
PN1117
Jones says to you, "Closing for a period of time." You say to Green, "Closing for a period of time." 21 June comes up and you attend a meeting with all of the fellows and you say - Mr Green speaks with them and says, "The kiln and boiler will be shutting down for a period of time." That's right, isn't it?---Yes.
**** CLAYTON KYE LINDLEY XXN MS DOUST
PN1118
You all used this particular phrase in the way that you communicated about the closure of the kiln and boiler?---Yes.
PN1119
Reflecting back on the words that you've used, doesn't that strike you as little bit odd?---Certainly not with my experience, it doesn't, no.
PN1120
You commonly exactly mirror the words that are said to you by management on the site at Tumut, do you?---Not all the time, no, but it certainly seems that way in this case.
PN1121
Are you sure in preparing the statement you haven't omitted a conversation between yourself and Mr Jones or Mr Green where you were told to be deliberately vague about the period of the closure and to all use this term, "period of time"?---No.
PN1122
You didn't have a conversation like that where you squared up your stories as to what to tell the troops?---Certainly not.
PN1123
Are you sure you haven't omitted in your statement any time where you have confronted either Mr Jones or Mr Green to get some definite answer about how long the kiln and boiler would be closed?---Certainly not.
PN1124
On your account you've been told nothing about the company's intentions so far as reopening the kiln and boiler are concerned?---Yes.
PN1125
Nobody in management has had any discussion with you about what it will take for the kiln and boiler to reopen?---Not at that stage they hadn't.
PN1126
Where do you say in this statement you've set out any conversation where you've been told about what conditions will require to be met?---I can't recall which part of the statement that I have.
PN1127
What I want to suggest to you is this, you've been told nothing more than what's actually been told to the blue collar employees at the site?---To the best of my recollection, that's correct.
PN1128
Do you say in the meeting of 21 June none of the employees asked how long the shutdown would be for?---They didn't ask me, no.
PN1129
You were present at the meeting?---Yes.
PN1130
Was it a question that was raised in open discussion?---Quite possibly could have been. I think Mr Green fielded most questions at that time. He's obviously the senior of the two.
PN1131
Senior out of you and him?---Yes.
**** CLAYTON KYE LINDLEY XXN MS DOUST
PN1132
It's possible that some of the employees asked that question?---It's possible.
PN1133
About how long the closure would be?---Certainly possible.
PN1134
Possible that you've left it out of your statement because you didn't recall it?
---It would only be through not being able to recollect it.
PN1135
Possible you didn't - - -?---Didn't hear it.
PN1136
- - - recall that?---Didn't hear it.
PN1137
How long have you worked with these fellows?---I've been based on the Gilmore site since March.
PN1138
Were you at the Tumut site?---Tumut site since mid December.
PN1139
It would be your expectation, wouldn't it, that these employees would be terribly curious to find out how long they might be moved out of their positions?---I would expect they would be concerned.
PN1140
I suggest this to you, you would expect each and everyone of them would be concerned?---Yes.
PN1141
Each and everyone of them would want some certainty from the company about their positions?---Yes.
**** CLAYTON KYE LINDLEY XXN MS DOUST
PN1142
Because you approached, I think it was Bruce Withers, when you were gathering the troops together for the meeting and you said, "I've got a meeting about the future of the kiln and boiler"?---Yes.
PN1143
Did you use similar words when you spoke with the other employees as well, when you were rounding them up?---Similar.
PN1144
What I want to suggest to you, Mr Lindley, is that when you talk about the future of the kiln and boiler, that that indicates that what's happening is a fairly serious thing?---I would say it could indicate change.
PN1145
Yes, it's likely to make people expect that there's some change happening?---Yes.
PN1146
And likely to be major?---It could be, yes.
PN1147
Because you wouldn't go and announce, "We're having our maintenance shutdown of the boiler in July" or whenever it was supposed to happen and say, "We've got a meeting about the future of the kiln and boiler," would you?---Can you sort of start that again, please?
PN1148
I think you were scheduled to have a maintenance shutdown in June-July?---Yes.
PN1149
How long do the maintenance shutdowns go for?---I'm sure that one was for a period of 1 week.
PN1150
Do you do a complete overhaul of the kiln and boiler in that time?---We do an inspection of it to see what needed doing and they carry out any jobs accordingly.
PN1151
If you were going to the troops say in June to plan the boiler shutdown, you wouldn't call them in and say, "We've got to have a meeting about the future of the kiln and boiler," would you?---If I was talking about the shutdown?
PN1152
If you were telling you were about to have a maintenance shutdown, you wouldn't call them in for a meeting about the future of the kiln and boiler?---No, that's right.
PN1153
I'm sorry, I think you might be confused. I'm not suggesting that when you were calling the troops together for the meeting on the 21st that there was any confusion as to whether that might be the maintenance shutdown or some other issue. What I'm suggesting to you is that the words you used to gather the troops together at that time were very different to the sorts of words that you would use to get them together to discuss an everyday operational issue?---I guess so, yes.
PN1154
Because what you were dealing with was a serious and major issue?---Yes.
PN1155
By using the term "future" - - -Yes - pardon me, sorry.
**** CLAYTON KYE LINDLEY XXN MS DOUST
PN1156
Can I ask you this, Mr Lindley, are you married or in a relationship?---Yes, I'm married.
PN1157
If your partner says to you, "Let's talk about the future of our relationship," you know what that means, don't you?---Yes.
PN1158
It means that things are likely to be coming to a close fairly quickly, doesn't it?
---No, not necessarily.
PN1159
It can do, can't it?---It can.
PN1160
That's one of the connotations when you talk about something's future, often it can mean that there's no future?---It can.
PN1161
What I want to suggest to you is that that was something that you had in your mind at the time that you were gathering everyone together
on 21 June?
---What did I have in my mind, sorry?
PN1162
That there was no future for the kiln and boiler?---No. The only thing that I had in my mind was that there was going to be a temporary shut.
PN1163
I suggest to you that the time that you then took to respond to that question suggests that you were thinking a fair bit about my
question, weren't you?
---Yes.
PN1164
You recall, don't you, at that time it was going through your mind that the kiln and boiler might be shut down indefinitely?---Not at that stage, no.
PN1165
Do you say that happened later?---Could you sort of amplify on that, please?
PN1166
Do you say that you reached that frame of mind later on in the piece?---That I expected it to shut down permanently?
PN1167
Indefinitely?---No.
PN1168
That's what you suggested by your answer, "Not at that stage", isn't it? You said you hadn't reached that state of mind on 21 June?---I hadn't reached the state of mind that there was going to be a permanent shut. I held the opinion that it was going to be of a temporary nature.
**** CLAYTON KYE LINDLEY XXN MS DOUST
PN1169
I think on the afternoon of the 21st, things started to blow up a little bit on site, didn't they, to use the vernacular?---I would say there were some concerns raised, yes.
PN1170
You knew that afternoon that the issue of the indefinite or other nature of the closure was going to be a big issue in this dispute?---Yes.
PN1171
I think you say that you prepared your file note which is annexure C to your statement?---Yes.
PN1172
You prepared this on the following day?---Yes.
PN1173
After it had become clear to you that the length of the shutdown was going to be an important issue in the industrial dispute?---Yes.
PN1174
It's in that context that you used this term "temporarily" in the file note, isn't it?
---Yes.
PN1175
I think to train up as a boiler attendant takes about 300 hours?---Yes.
PN1176
The company has only got six qualified boiler attendants?---To my knowledge, yes.
PN1177
Did you annexe the skills matrix? Maybe Mr Green did. Maybe I'm imagining it. In any case I think there are six qualified boiler attendants?---To my knowledge, yes.
PN1178
At the Gilmore site?---At the Gilmore site.
PN1179
The company has trained its workforce on the assumption that someone who obtains that skill, being boiler attendant skill, is likely to be performing work in that area, doesn't it?---Yes.
PN1180
Because there's only a handful of fellows with that skill?---Yes.
PN1181
But you've got other skills amongst your workforce which, by comparison, are fairly widely spread?---Yes.
**** CLAYTON KYE LINDLEY XXN MS DOUST
PN1182
In the case of Darrell Robinson and Bruce Withers, that has certainly been the assumption on the part of the company that they're going to be performing work in that area?---Yes.
PN1183
In fact, to your knowledge, they have done so for many, many years?---Yes.
PN1184
Mr Withers obtained that skill, I think, shortly after commencing on the site in 1979. You've no reason to contradict that?---No.
PN1185
It's correct, isn't it, that since then he's only been trained in two other skills?
---Yes.
PN1186
The situation that I just described with boiler attendants is similar to the position with kiln attendants?---Yes.
PN1187
That if people obtain that kiln attendant skill, the company intends that they're going to be using that skill in that area?---Yes.
PN1188
You don't train that skill generally across the workforce?---No.
PN1189
These are a fairly specialised group?---Yes, yes.
PN1190
You expect those employees to be exercising that skill in the course of their work?---Yes.
PN1191
In the case, I think of Paul Costello and Rodney Back, there's limited other skills to fall back on?---Yes.
PN1192
Can you tell me what the radar skill is?---It's a safety procedure. It's a procedure in which you fill out a form before entering any upset condition or locked out workspace. It's a, I guess, memory job to ensure you exercise some caution before entering ..... situations.
PN1193
Some sort of risk or hazard assessment?---Yes, certainly.
PN1194
It's not a skill that actually equips you to perform any substantive role or duty?
---Well, it's required for every duty.
PN1195
Required across the board?---Yes.
**** CLAYTON KYE LINDLEY XXN MS DOUST
PN1196
Can you tell me what the cycle count is?---That's in the duty of our regular stocktaking of our site, stock counting, warehousing and such.
PN1197
That's, I think fairly widely framed across the site?---Yes.
PN1198
Is that right?---Yes.
PN1199
Does that skill or that, is it a competency?---Yes.
PN1200
Does that competency equip the person to perform a substantive rile or duty?
---We have one permanent cycle counter and obviously the others are utilised on that periodically as we require to stock take our
goods.
PN1201
Tell me about pack ID. What is that particular competency?---It's in referencing our finished goods against - basically giving it a pack number as it exits work centres and the like, giving it identification.
PN1202
Is there a number of people who are allocated specifically to that position or duty on an ongoing basis?---Yes. There's quite a number of those people.
PN1203
What's that job like in terms of level of skill?---Requires computer literacy so I guess it's a reasonable skill.
PN1204
I want to take you to your skills matrix, which is annexure B, to your statement?
---Yes.
PN1205
We see from there that Bruce Withers, for example, his skills, apart from that situation, was to be coupled with a reduction in your wages in the order of a third or a quarter. I suggest to you you wouldn't be happy about that either?---No.
PN1206
That is precisely the situation that you are proposing the Commission should countenance happen with these fellows, isn't it?---Yes.
PN1207
You understand entirely why they are, shall we say, livid about the situation?
---Yes.
PN1208
Not only does the company take them from the highest skilled positions in the blue collar workforce and suggest to them that they go and carry out these other menial jobs, the company hasn't given them a word of comfort about when that situation will come to an end?---To my knowledge, no.
**** CLAYTON KYE LINDLEY XXN MS DOUST
PN1209
That is not a situation you would cop yourself, is it?---I guess I deal with that accordingly.
PN1210
I'm sorry?---I deal with it accordingly.
PN1211
I suggest to you that expecting employees to cop a third reduction in pay, a move from the most skilled job to the less skilled job and no word about when that situation might end, is an extremely unreasonable act?---Are you requiring a response?
PN1212
I'm suggesting that to you. What do you say to that?---Yes.
PN1213
It is unreasonable?---I don't think it's completely unreasonable, no.
PN1214
Not completely unreasonable?---Not to the point that we did state that the shut would only be temporary and we were making our best opportunity to keep them employed.
PN1215
When you say not completely unreasonable, you allow, don't you, that it is unreasonable in part?---I can understand that any change would be unwelcome.
PN1216
I just want you to focus on my question, please, Mr Lindley. I suggested to you that the position was unreasonable. Do you recall that?---Yes.
PN1217
I think you answered, "It's not completely unreasonable"?---Yes.
PN1218
Do you accept it is substantially unreasonable although not as unreasonable as the worse case might possibly be?---Yes.
**** CLAYTON KYE LINDLEY XXN MS DOUST
PN1219
Thank you. Nothing further.
PN1220
THE SENIOR DEPUTY PRESIDENT: Mr Jauncey, any re-examination?
PN1221
MR JAUNCEY: No further questions, your Honour.
THE SENIOR DEPUTY PRESIDENT: Mr Lindley, that means you're excused as a witness. Thank you.
<THE WITNESS WITHDREW [11.14AM]
MR JAUNCEY: I call Mr Warren Green.
<WARREN MATTHEW GREEN, SWORN [11.15AM]
<EXAMINATION-IN-CHIEF BY MR JAUNCEY
PN1224
MR JAUNCEY: Mr Green, would you please state your full name and address for the record?---Warren Matthew Green (address supplied)
PN1225
Mr Green, do you have a copy of the statement prepared on your instructions in this matter?---Yes, I do.
PN1226
I understand that you wish to make a change in paragraph 5 and that the reference to 1999 in the second line should be a reference to 1996. Is that correct?---Yes.
PN1227
I understand that you also wish to make a change in paragraph 22 of your statement?---Yes.
PN1228
That the reference to 23 June 2005 at the opening of that paragraph should be a reference to 22 June 2005?---That's correct.
PN1229
Other that is the statement true and correct to the best of your knowledge and belief?---23 as well. 23 as well should refer to meaning the 22nd.
PN1230
In 23 that should also be 22 June?---Yes.
PN1231
It has been pointed out to me that in paragraph 4 that should also be 1996?---1996, yes.
PN1232
Is that statement otherwise true and correct to the best of your knowledge and belief?---Yes.
I tender the statement.
EXHIBIT #R5 STATEMENT OF WARREN MATTHEW GREEN
PN1234
MR JAUNCEY: Your Honour, if I might have liberty to ask a few more questions in-chief.
**** WARREN MATTHEW GREEN XN MR JAUNCEY
PN1235
Mr Green, in the planer mill timber grading role, can you tell the Commission what arrangements are made for the heating of the area?---The heating? We have radiant heaters mounted at the back of the four to five graders and I believe there's four to five heaters there.
PN1236
Can you tell the Commission what arrangements are made to relieve the standing pressures?---There's chairs for sitting and also the leading hands and quality control people relieve personnel at times for coffee breaks and toilet breaks.
PN1237
Mr Green, I'm going to show a piece of paper. Your Honour, it's a document which was produced under summons and it's an extract from the diary dated Sunday, 19 June. Mr Green, can you identify that document for me?---It's a photocopy of my diary.
PN1238
Can you tell the Commission what conversation it refers to?---It refers to a meeting I had on the 21st at Gilmore with the Gilmore attendants and Clayton Lindley and Dusty Miller.
PN1239
Can you tell the Commission why it appears on the page dated 19 June?---It was, I think from memory, was a 4 o'clock meeting and my diary was already full so I just made a note on the Sunday as I do a lot of my notes because I don't put anything in on Sundays.
I seek to tender that document?
EXHIBIT #R6 COPY OF DIARY NOTE DATED 19/06/2005
PN1241
MR JAUNCEY: Perhaps if we could ask for a couple of extra copies to be made of that. I apologise, your Honour.
PN1242
THE SENIOR DEPUTY PRESIDENT: Presumably, that was one of the documents that was copied the last time we were together.
PN1243
MR JAUNCEY: Yes, it was, Commissioner. I only have one copy but Ms Doust is not sure where hers has gone so I've said we'll get another taken.
**** WARREN MATTHEW GREEN XN MR JAUNCEY
PN1244
Mr Green, can you tell the Commission of what upcoming opportunities there may be on the Tumut boiler operations?---Yes. We have a schedule of annual leave coming up and I think the first opportunity is around the end of September where's there's availability for possible relief for the boiler attendant taking annual leave for 2 to 3 weeks I think it is.
PN1245
If Mr Robinson or Mr Withers were to be put into that spot, what prior training might be required?---I believe we have to get him there for probably 2 to 3 weeks to get him inducted and used to the site and get him actually to understand the boiler running, train with one of our operators who are there, so probably 2 to 3 weeks prior.
PN1246
That would mean that in order to fill that spot, they would be required to start on the boiler at Tumut when, early September?---Early September if the leave was granted, yes.
PN1247
Can you tell the Commission what assurances the company may have given to Mr Withers or Mr Robinson in relation to filling vacant spots on the Tumut boiler operations?---Yes. The company has always stated that if there's any relief coming up, those guys will be given first option to apply for those positions to fill.
PN1248
Thank you. No further questions.
THE SENIOR DEPUTY PRESIDENT: Ms Doust.
<CROSS-EXAMINATION BY MS DOUST [11.23AM]
PN1250
MS DOUST: Mr Green, do you say to this Commission that you are a man of your word?---Yes.
PN1251
Do you say that you deal with your employees and the union in an honest and open way?---I believe I do, yes.
PN1252
Does that mean that if you said you would do something you would go ahead and do it?---If it was in my power, yes, I would.
PN1253
When you prepared your statement for these proceedings, you were conscious to put in all the information you had about the closure of the kiln and boiler at the Gilmore site, weren't you?---Yes.
PN1254
You were aware that the length of that closure is the critical issue in this matter, weren't you?---Yes.
PN1255
I would suggest to you you were aware of that length of closure being the critical issue in this industrial dispute by 21 June, weren't you?---What are you asking me there, whether I'm aware of the length of the closure?
PN1256
Was the critical issue in this industrial dispute - - -?---Yes.
PN1257
- - - by no later than 21 June?---That's true, yes. I knew that it was critical to make sure we could get the place back running as soon as possible.
PN1258
In preparing for these proceedings you were involved, weren't you, dealing with Mr Jauncey to respond to a summons where the union asked for documents in relation to the closure of the kiln and boiler at the Gilmore site?---Yes.
**** WARREN MATTHEW GREEN XXN MS DOUST
PN1259
Did you understand, in responding to that summons, you were under certain
obligations to the Commission?---Yes.
PN1260
That you had to produce all of the records in the possession, custody and control of the company relating to the decision to close the kiln and boiler?---Yes.
PN1261
For example, that's why we've got your diary note of that meeting?---Yes.
PN1262
You're aware that you had to produce not only your own diary notes but records kept by the persons in relation to the decision to close the kiln and boiler?---Yes.
PN1263
I see you didn't produce in those records any record, I think, of memos or emails between yourself and anyone else on staff about the decision to close the kiln and boiler, did you?---No.
PN1264
When you prepared your statement did you put in your statement all of the conversations you had with other staff members about the decision to close the kiln and boiler?---No.
PN1265
Why do you say you left some of those discussions out?---The discussions we had were based over probably the early weeks of June at regional meetings. I produced agenda items for those meetings but not many minutes are kept of those as it's a general discussion around how the business is travelling and decisions made.
PN1266
You say you had meetings, what are they, regional meetings?---Yes, most Mondays, regional meetings, yes.
PN1267
All of the management of, is it Tumut and Gilmore site?---Tumut Gilmore, yes.
PN1268
Is there any other site?---No, just Tumut region.
PN1269
That's the management team?---Yes.
**** WARREN MATTHEW GREEN XXN MS DOUST
PN1270
You are a part of that?---Yes.
PN1271
Can I ask you this, do you say it was your decision to shut down the kiln and boiler at Gilmore?---No, it was a team decision.
PN1272
Who bears ultimate responsibility?---I do, as operations manager.
PN1273
Was Mr Lindley the first person you told about the decision?---About the decision?
PN1274
Yes?---No, I think it was - it was communicated at a ECC meeting so that the union and employees had opportunity to discuss is. I was not at that meeting.
PN1275
Why is it, do you know, that Mr Lindley would have said in this statement that it was Mr Jones who told him about the decision?---Mr Jones is Mr Lindley's direct boss, manager.
PN1276
Is he the person who really has the call in relation to this matter?---No.
PN1277
You have it?---Not particularly, just part of the team.
PN1278
You're the person with ultimate responsibility for the decision to shut down the kiln and boiler?---Yes.
PN1279
You're the person with ultimate responsibility for the decision to restart the boiler?---Yes.
PN1280
I think all that we have from you to narrate how the first decision came to be made, is some eight lines at paragraphs 13 and 14 of your statement?---Yes.
PN1281
That's all that you produced?---I also produced some documents that were summonsed around statistics around volumes and where we're sitting with flows for the site.
PN1282
You say there were taken into account in making the decision?---They were taken into account to make a decision, yes, around where we're sitting with our products and how the market is moving.
PN1283
I'll just follow on from that. At paragraph 15 of you statement you set out a discussion with Mr Lindley?---Yes.
**** WARREN MATTHEW GREEN XXN MS DOUST
PN1284
You say you said to him, "We're going to temporarily close the kiln and boiler at Gilmore"?---That's right.
PN1285
Is it possible that you might be mistaken and he actually told you of the decision?
---No, I don't think so. I was away on the 16th but I was back on the 17th. I spoke to him around the closure so we could make
sure we had the right parties there.
PN1286
Is it possible that in your recollection of what occurred around that time that you might have just forgotten that in fact it was Mr Lindley who told you about the decision?---I don't think so, no.
PN1287
I think you say you said to Mr Lindley, "We're going to temporarily close the kiln and boiler"?---That's correct.
PN1288
He said, "Okay, I'll set up a meeting, have a look around"?---Yes.
PN1289
Did he ask you in that exchange how long the kiln and boiler would be closed down?---I don't recall.
PN1290
Because that would be, I suggest to you, a natural and reasonable response on his part?---Yes.
PN1291
You would expect him to be quite curious about that fact?---Yes. I believed it had been discussed earlier with him. It was at the ECC meeting on the 16th when it was rolled out.
PN1292
You say that someone had given him some estimation of what time earlier on there?---I'm not sure.
PN1293
What, at the meeting you didn't attend?---Yes. I wasn't at the meeting.
PN1294
On that day you're telling him, "We're going to temporarily close the kiln and boiler," and you say he didn't seek any assurance from you as to how long that situation would carry on?---He could have possibly. I don't remember that, no.
PN1295
If he did it’s not included in your statement?---No.
PN1296
Because, what I suggest to you is this, the length of the closure might have a big bearing on what duties might be offered to employees, mightn't it?---Yes, true.
**** WARREN MATTHEW GREEN XXN MS DOUST
PN1297
From that point of that view you would expect him to be interested to find out how long the closure was going to carry on?---Yes.
PN1298
Because it might be a great deal easier to get a bunch of fellows to do some menial tasks for an afternoon or a couple of days than it might be to get them to do it until say hell freezes over, mightn't it?---I agree, yes.
PN1299
Apart from the fact that it’s a matter relevant to those duties, you would expect him, wouldn't you, just to have some curiosity about that issue?---Yes, I would expect, but I can't recall.
PN1300
You're the head person in the show down there?---Yes.
PN1301
You would be the person in authority to give any sort of assurance to employees?
---Yes.
PN1302
You've got a good working relationship with Mr Lindley?---Yes.
PN1303
You deal with him in an honest and open way, as you deal with the union?---Yes, I do, always do.
PN1304
He would feel free to ask you anything that he wished to know about the operation?---Yes, he would.
PN1305
You say he didn't make a squeak about how long this closure was going to carry on for?---I don't recall, no.
PN1306
Because you know as soon as you mentioned it to the employees on 21 June they were terribly curious, weren’t they?---Yes, they were.
PN1307
That didn't surprise you one bit, did it?---No.
PN1308
You don't think there's any reason, do you, that Mr Lindley would have a different approach to things than they would?---No.
PN1309
You say in relation to all of this that there's no memo or email between yourself and anyone else in upper management to inform them about the decision?---No discussions, there's no email.
PN1310
I'm just curious. When you use the term "upper management" who do you refer to?---Peter Zed. He's our group operations manager.
PN1311
There's nothing between yourself and him where you set out all of the factors that you took into account in making the decision?---No.
**** WARREN MATTHEW GREEN XXN MS DOUST
PN1312
This is a fairly major decision impacting on the Gilmore site, isn't it?---Yes.
PN1313
You normally take care in recording decisions that are taken that affect the operations at the site?---In some instances, yes, depending on the decision.
PN1314
Just remind me, Mr Green, you're in charge of both sites, both Tumut and Gilmore?---Yes, classified as one region.
PN1315
You've been involved in that region since 2001?---I've been with the company for about 12, 13 years.
PN1316
Elsewhere, but at Tumut since about 2001?---Earlier than that but I've mostly been in staff since about 2001.
PN1317
Do you remember when the kiln and boiler shut down in February 2005?---That was in February, I believe it was either the 3rd or the 8th but I haven't got any detail on that.
PN1318
Did you not play any part in that decision?---Yes, I was part of it with discussions around the regional team but it wasn't my decision at that stage. No.
PN1319
That decision was made by Mark Jones, was it?---No, the decision would be made by the operations manager. It was Darren Dowling who was in charge..
PN1320
Operations manager for where?---For Tumut region. I'm basically standing in while he's on leave.
PN1321
Do you know anything about how the site continued to operate while that shutdown occurred?---How the site continued to operate?
PN1322
Yes?---There was alternative positions found for the employees in different areas.
PN1323
Because at that time your position was process manager controlling green mill, dry mill and engineering areas at the sites?---That's correct.
PN1324
You are acting in this current position?---Yes.
**** WARREN MATTHEW GREEN XXN MS DOUST
PN1325
For how long?---For another week.
PN1326
Then you'll resume the process manager role?---Yes.
PN1327
Are you responsible then for the kiln and boiler?---At Tumut?
PN1328
Yes?---Yes - no, not then, not in a week's time, no, I believe..
PN1329
You won't be?---No.
PN1330
At that stage this matter will be out of your hands?---To a certain degree but I've got a lot of - I'll be part of the discussions with the team and I'll be passing my information on to my manager when he returns.
PN1331
You won't ultimately have the call about restarting the kiln and boiler, will you?
---No.
PN1332
Why is it you're acting in the position? What's happened to the normal - - -?
---He's on leave.
PN1333
Going back to the closure of the kiln and boiler in February 2005, are you saying that you don't know anything about the arrangements that were in place during that period about continuing supply?---I just remember that we have a bit of a downturn. I think there were some issues in Tumut and we closed for a certain amount of time, 4 to 5 weeks, I believe.
PN1334
I'm not sure whether I'm using the right terminology, but what were you doing for green stock during that shutdown?---Sorry, what were we doing for green stock?
PN1335
Yes?---I'm not sure what you mean.
PN1336
What was happening with the green stock levels at that time?---I can't answer that.
PN1337
You spoke earlier about the figures that you looked at when you were taking the decision to shut down the kiln and boiler?---Yes.
PN1338
Some of those figures were about the output at Tumut as compared to Gilmore?
---The figures were around the stock at Tumut and Gilmore, yes.
PN1339
Would you agree with this, that the Tumut operation, kiln and boiler, produces somewhere three and 10 times the products that Gilmore does?---Probably about six times as much, yes.
PN1340
It fluctuates - - -?---Yes, it fluctuates depending of the product, yes.
**** WARREN MATTHEW GREEN XXN MS DOUST
PN1341
- - - substantially but what, you're saying an average of six?---Actually, no, a bit more. It would be about eight, I would say, depending on the fluctuation of the product that goes in.
PN1342
Tumut kiln and boiler, how is that in terms of efficiency and cost effectiveness compared with Gilmore?---It's definitely a more cost effective plant because of the volumes that are put through.
PN1343
You're currently in the position of managing the Tumut and Gilmore operations. Although not integrated in terms of location, they
share the same management?
---Yes.
PN1344
I want to suggest to you that the company hasn't decided to manage this current crisis of demand by winding back production at the
Tumut kiln and boiler, has it?
---It's been different product go through it.
PN1345
But that's right, isn't it, it hasn't wound back operations at the Tumut site?---No.
PN1346
I put this suggestion to you. Both operations could survive indefinitely without the Gilmore kiln and boiler operating?---No.
PN1347
That's the current position, isn't it?---At the moment, yes, because of the product.
PN1348
The kiln and boiler at the Gilmore site isn't operating?---No.
PN1349
You're relying upon the Tumut kiln and boiler to give you enough product for both sites?---Yes.
PN1350
Apparently you intend to keep doing that until some indeterminate date?---Yes.
PN1351
You're aware, aren't you, that when the kiln and boiler were shut down in February-March, employees were given a firm date for the recommencement of kiln and boiler operations?---Yes.
PN1352
You've made yourself familiar with that situation, haven't you, for the purpose of dealing with the current situation?---Yes.
PN1353
I'll show you a document. Is that a document you recognise?---It's familiar, yes.
PN1354
That's a memo from Mark Jones to the employees at Gilmore, isn't it?---Yes.
PN1355
Announcing the previous closure of the kiln and boiler?---Yes.
**** WARREN MATTHEW GREEN XXN MS DOUST
PN1356
Dated 9 February 2005?---Yes.
PN1357
Employees were given a firm date of 29 March 2005 for the restart, if not before?
---Yes.
PN1358
I tender that document.
MR JAUNCEY: I have a copy, no objections.
EXHIBIT #A7 MEMO DATED 09/02/2005
PN1360
MS DOUST: During that shutdown, the employees who are affected by these proceedings performed alternative duties, didn't they?---Yes.
PN1361
They continued to be paid at their 55 hour rate of pay?---Yes.
PN1362
Do you say that that arrangement was reasonable in those circumstances?
---That was a decision made at that time.
PN1363
Does mean that it is reasonable or not?---Yes, at that time, yes.
PN1364
Do you now have any cause to look back on it and conclude that it wasn't reasonable?---No.
PN1365
I suggest to you it's reasonable without any qualification, isn't it?---Yes.
PN1366
Your experience in dealing with the employees affected by these proceedings is not that they are unreasonable:---No.
PN1367
In that case the company accepted, didn't it, that it was reasonable to maintain the employees' wages at the same level during the shutdown?---It was easier than the change of shifts, yes.
PN1368
Do you refer under the subheading Temporary Closures Gilmore Kiln and Boiler Operations to previous closures?---That's the only closure I'm aware of, except for Christmas breaks and Easter week closures.
**** WARREN MATTHEW GREEN XXN MS DOUST
PN1369
Over the Christmas break, no suggestion that employees' wages should be decreased?---No. They're mostly on leave.
PN1370
THE SENIOR DEPUTY PRESIDENT: Sorry, can you say again? I didn't hear?
---Mostly on leave.
PN1371
Thank you.
PN1372
MS DOUST: Are you aware of any maintenance shutdowns?---We do have some shutdowns during the year, yes.
PN1373
In that event employees aren't allocated to other duties and have their wages dropped?---No.
PN1374
Can I just ask you this. do you say it's reasonable to tell a skilled boiler or kiln operator who has been in a job on a particular pay rate for 9 years, to perform less skilled duties for less pay, say a third less pay, indefinitely. You says that's reasonable, do you?---Depending on the situation because the wages are taken into account regards loading and overtime so we're not asking them to work much more less than what they are now.
PN1375
Does that mean a yes or no to my question whether or not that proposition is a reasonable one?---The way you worded it, it's not reasonable, but depending on other examples it could be classed as reasonable.
PN1376
Let's be utterly clear about this. My proposition is a skilled kiln or boiler operator who is in the job on that pay for 9 years being directed to perform less skilled duties for a third less pay indefinitely - do you understand all of the factors involved?---Yes.
PN1377
Those are my words. You accept that, yes?---Yes.
PN1378
I think you accepted before the way I worded it, it's unreasonable?---Sorry, the way you worded it then it's unreasonable?
PN1379
Yes? Do you think that's an unreasonable position?---Yes.
PN1380
I'll just suggest to you that if I was going to tell you that you were going to be moved out of say your manager's role and put back on the floor indefinitely and take a third cut of your wages, that's not a situation you would be happy about?
PN1381
MR JAUNCEY: The question is being put as a hypothetical. The link hasn't been drawn to this situation.
PN1382
MS DOUST: I think it's exactly the same situation, with respect, your Honour. I'm putting the current scenario.
PN1383
MR JAUNCEY: It's not the current scenario. It's asking Mr Green hypothetical questions about if he was moved to the floor.
**** WARREN MATTHEW GREEN XXN MS DOUST
PN1384
THE SENIOR DEPUTY PRESIDENT: Any evidence will be seen in that light.
PN1385
MS DOUST: Yes.
PN1386
Would you answer the question then, Mr - - -?--- ..... answered the question .....
PN1387
You can't remember which one it was?---No, no, I wasn't sure. In that situation unreasonable, yes.
PN1388
Mr Green, you understand this dispute is all about the terms of the redundancy agreement which form an attachment to the certified agreement?---Yes.
PN1389
You understand that I think the real issue in this matter are these words in the agreement:
PN1390
When the company no longer wishes the job the employee has been doing done by anyone directly employed by Weyerhaeuser.
PN1391
Are those words familiar to you?---Yes.
PN1392
You probably spent a bit of time looking through - - -?---I've read it, yes.
PN1393
- - - the terms of attachment 2 recently?---Yes.
PN1394
Of course, there are some reasons which are set out in the redundancy agreement there, being general downturn, restructuring, mechanisation, et cetera?---Yes.
PN1395
You accept, don't you, that in these circumstances the closure of the kiln and boiler meets the definition in the redundancy agreement so far as it results from either a general downturn in activities brought about by decline and demand for the company's products?---I agree to it, yes.
**** WARREN MATTHEW GREEN XXN MS DOUST
PN1396
Or it might also be described as restructuring of the industry or enterprise reorganisation of work systems?---Yes, but only for not re-employing people or keeping those positions, which we intend to do.
PN1397
You accept that the reasons for the decision about closure in the redundancy agreement attachment are satisfied?---No.
PN1398
Leaving aside the issue of whether the company no longer wishes the job the employee has been doing being done by anyone directly employed, putting that to one side, you accept that the requirement in the redundancy agreement for the closure to arise from either general downturn or restructuring is satisfied?---I've stated that in my statement, yes.
PN1399
You agree, don't you that - - -?---Taking that other clause to the side, yes.
PN1400
The issue is whether or not the company no longer wishes the job the employee has been doing done by anyone directly employed by Weyerhaeuser?---Yes.
PN1401
When do you say that that requirement is satisfied?---We're looking at all our opportunities to start that back up as early as we can and we're looking at the latest, the start-up next year.
PN1402
When do you say that those words, that definition in the redundancy agreement are satisfied?---I don't know that.
PN1403
Is it only when the company makes an announcement to the effect that:
PN1404
We no longer wish the job the employee has been doing done by anyone - - -
PN1405
MR JAUNCEY: It's a matter for submissions and interpretation of the agreement. Mr Green doesn't pretend to have legal training in interpretation of certified agreements, nor has it been suggested that he was involved in negotiating the various documents.
PN1406
MS DOUST: It's a question that goes to the factual circumstances that satisfy the certified agreement. If this witness is able to identify any circumstances that satisfy it, that will be a matter that interests the Commission, I would submit, equally if he gives evidence to the effect that there are no such circumstances.
PN1407
THE SENIOR DEPUTY PRESIDENT: I think we all know it's a question seeking the witness's opinion and what weight that carries is probably not very great but I'll allow the question.
PN1408
MS DOUST: Mr Green, you say, do you, that those terms of the certified agreement aren't satisfied in this case?---Yes.
**** WARREN MATTHEW GREEN XXN MS DOUST
PN1409
When do you say the provision would be satisfied?---The company has put forward a proposal 3 months in the next 12 at Tumut.
PN1410
I'll go back to initial question in a second, but you say the company has put forward a proposal of 3 months in the next 12?---Yes.
PN1411
What do you mean by that?---If the - we put forward a proposal that if the kilns and boilers wasn't run for 3 months out of the next 12, then the redundancy clause would stand.
PN1412
Do you say that's the offer that the company has made?---That's the offer the company made, yes.
PN1413
Is one of your expectations in all of this that you might only operate the kiln and boiler for 3 months in the next 12 months?---No. Actually, our expectation is to operate it for as long as we need to and I don't know what the market conditions are going to do so I don't know what the length will be.
PN1414
We'll get to market conditions eventually. We'll have a little chat about them, but tell me about this offer of the 3 months in 12. You were saying that, "Look, if the kiln and boiler were only open for 3 months in the next 12, we'll pay you out." That was the company's offer?---Mm.
PN1415
Can I suggest to you that in making an offer on behalf of the company, which you did, it would be in your mind important to give the company as much protection as you might reasonably afford?---When we were based around the Commission on the last couple of hearings, we had to come back with a proposal and we asked the unions that the employees come back with their alternatives as well and that was the first one put on the table.
PN1416
Just go back to my question, please. It was in your mind, wasn't it, when you were coming up with this plan of 3 months in 12, to try and give the company a bit of protection?---It was a decision that I made with my boss as well as myself and other members and we made the decision that it was 3 months in 12, yes.
PN1417
You wanted to make an offer that would give the company some protection?---We believed we would be starting back up and that was the offer we made.
PN1418
I suggest to you this: you wanted to make an offer in that context which would give the company a degree of protection, and I'll suggest the protection was from having to pay out redundancies to employees with very long service?---The protection was we wanted to keep our employees so we didn't have to shut the plant down.
**** WARREN MATTHEW GREEN XXN MS DOUST
PN1419
Mr Green, I'm not meaning any disrespect, but we will get through this quicker if you answer my questions. I know you may have a great deal to say about this matter and you might get the opportunity - - -
PN1420
THE SENIOR DEPUTY PRESIDENT: Ms Doust, can I just say I'm a little uncomfortable with this because it's actually dealing with things that were discussed during conciliation.
PN1421
MS DOUST: The witness volunteered it, your Honour, and I was aware that there was some correspondence marked without prejudice and now that the witness has volunteered it, I'm entitled to explore it.
PN1422
THE SENIOR DEPUTY PRESIDENT: Yes. I just indicate to you that I'm uncomfortable with this exploration of something that was discussed in conciliation in rather a different context to the context in which you are putting the questions now.
PN1423
MS DOUST: With respect, your Honour, Mr Jauncey has the capacity to re-examine.
PN1424
THE SENIOR DEPUTY PRESIDENT: Yes. I just indicate to you that I'm uncomfortable with it. Mr Jauncey hasn't objected and you can go on, but I've said what I wanted to say.
PN1425
MS DOUST: Thank you, your Honour.
PN1426
Mr Green, in making an offer to the employees of 3 months in 12, and when I use this shorthand 3 months in 12, you understand it to refer to the offer you made about paying out the redundancy if the kiln and boiler didn't operate for 3 months in the following 12?---Yes.
PN1427
You understand that terminology?---Yes.
PN1428
I'll suggest in making the 3 in 12 offer, you really could only be satisfied that the boiler might operate for slightly more than 3 months in the next 12?---I don't know that answer. I don't know how long it will run in the next 12. If I knew that answer we would be - - -
**** WARREN MATTHEW GREEN XXN MS DOUST
PN1429
THE SENIOR DEPUTY PRESIDENT: Ms Doust, it is so, is it not, that it's certainly not the normal practice that evidence is adduced on settlement negotiations? In fact, as I understand it, it's actually precluded in the Evidence Act. This Commission is not bound by the rules of evidence but as a matter of good practice the Commission doesn't normally deal with the substance of negotiations made in conciliation in attempts to settle the matter. That's why I'm uncomfortable about it.
PN1430
MS DOUST: With respect, your Honour, the objections - - -
PN1431
THE SENIOR DEPUTY PRESIDENT: It always worries me when someone says "with respect". Yes, go ahead.
PN1432
MS DOUST: I apologise, your Honour, my friend just wanted to have a word in respect of - - -
PN1433
THE SENIOR DEPUTY PRESIDENT: Yes. I'm rather conscious that you weren't part of the conciliation proceedings and I'm bothered whether the context of those discussions is really coming through in the evidence, but I suppose, if you, despite my caution, want to continue this line of questioning, well, I'm happy to hear from Mr Jauncey but I'm pretty uncomfortable with what's going on.
PN1434
MS DOUST: To clarify the position, your Honour, it's this, that if I were to have introduced subject matter arising from conciliation or settlement discussions, then your Honour could certainly chide me for that. But when a witness makes a self-serving statement which draws upon something which might also have come out in those negotiations, it would be extremely unfair for me not to be able to explore that. I'm entitled, obviously, to cross-examine the witness on any of the evidence that he's given and he doesn't get a free shot himself about what might have been discussed in settlement negotiations without me getting a chance to explore it. It's as simple as that. It was his objection to take. He freely volunteered.
PN1435
THE SENIOR DEPUTY PRESIDENT: I'll let you continue your question but you understand where I'm coming from. I'm very uncomfortable about this. I don't think it's right.
PN1436
MR JAUNCEY: Your Honour, I might take the objection at this point. It is one thing, as Ms Doust says, to explore something that has been volunteered in the witness box . However, she has now asked a series of questions about what was volunteered and it's beginning to now move off what was volunteered and into a broader analysis of what was in people's minds or going through people's heads at conciliation. If this line of questioning is allowed to continue, then I foreshadow now that I will wish to re-examine on various things which happened in conciliation in order to put this statement into context.
**** WARREN MATTHEW GREEN XXN MS DOUST
PN1437
MS DOUST: My friend is simply not entitled to re-examine at large. He's entitled to re-examine on any of the evidence which comes from the witness. So he can re-examine of any of the answers. As to his suggestion that this is now becoming some broad ranging inquiry about what has occurred in conciliation, I reject that absolutely. This witness volunteered that it was his view that the agreement should have effect if this 3 months in 12 situation didn't occur.
PN1438
I have sought to question him about the basis for him putting that as an appropriate position. If the questions have gone on for sometime, it's our submission that that's because the witness is not answering them directly. My questions have only gone to that suggestion that 3 months in 12 is the appropriate kicking-off point, if you like, for the operation of this agreement.
PN1439
MR JAUNCEY: I don't think the evidence has even risen so far that that's the appropriate kicking-off point. The questions are now going into what was in people's minds in conciliation and it's moved off the issue of what does the agreement mean. That's a relevant objection in itself.
PN1440
THE SENIOR DEPUTY PRESIDENT: Ladies and gentlemen, I'm going to draw this area of questioning to a close and I note that in section 110:
PN1441
The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
PN1442
I've got to say that someone who sat through the conciliation that I don't think that the discussion that has been going on about whether this area can be continued or not, properly reflects all the things that were discussed in conciliation and regardless of the technicalities and legal forms, were going to stop.
PN1443
MS DOUST: Please the Commission. We'll go back to my earlier question. Will the questions and the original answer be struck from the record then?
PN1444
THE SENIOR DEPUTY PRESIDENT: No. What's on the record is on the record
PN1445
MS DOUST: Can I just clarify for the record, is your Honour still proposing to receive the answer from Mr Green specifying the 3 months in 12 as the appropriate criteria to satisfy operation of the agreement?
PN1446
THE SENIOR DEPUTY PRESIDENT: I'll look at the transcript and whatever was the answer was the answer.
PN1447
MS DOUST: Does that mean your Honour will give regard to that as evidence in these proceedings?
**** WARREN MATTHEW GREEN XXN MS DOUST
PN1448
THE SENIOR DEPUTY PRESIDENT: The reason I hesitate is that I sat through the conciliation. I understood the context in which that was put and as I have made clear to you, your question didn't really draw out the context in which that was discussed. That was why I was uncomfortable about the whole thing. I think the proper way to proceed is that whole area of questioning I will disregard.
PN1449
MS DOUST: Please the Commission.
PN1450
THE SENIOR DEPUTY PRESIDENT: Just as in reaching my decision I will disregard what was done in conciliation
PN1451
MS DOUST: Thank you, your Honour.
PN1452
Mr Green, just going back to clause 1.1 of the redundancy agreement, do you recall we had some discussion about when the company no longer wishes the job the employee is doing done by anyone?---Yes.
PN1453
Do you say that that circumstance only occurs when the company makes an announcement in words to that effect?---Can you repeat that, please?
PN1454
Do you say that the company no longer wishes the job the employee has been doing done when the company makes an announcement to similar
effect?
---Yes.
PN1455
You say those are the only circumstances in which that clause is satisfied?
---That's the way that I read it, yes.
PN1456
If that's the case, it becomes open to the company to manipulate the circumstances in which it's obliged to follow the redundancy agreement, doesn't it?---We follow as per the EBA.
PN1457
If you just attend to my question, please. If it's the case that that criteria is only satisfied if the company makes an announcement to that effect, the company can easily manipulate the circumstances where it's obliged to follow the redundancy agreement, can't it?---I don't think so.
**** WARREN MATTHEW GREEN XXN MS DOUST
PN1458
It could do that simply by exercising a degree of control over the way in which it describes a closure of a part of its business?---I don't think we do that, no.
PN1459
But you follow that that's - - -?---I follow - I know exactly what you're saying.
PN1460
If what you're saying is right, it's only when the company makes an announcement to similar effect in the terms of the certified agreement, the company can control when the agreement applies to it simply by the words it says, couldn't it?---Yes.
PN1461
One of the ways it might do that might be by getting everyone together and making sure they all use the same terminology to describe the closure of - - -
PN1462
MR JAUNCEY: I object to this. I mean, there are other provisions in the agreement which require the company to consult with the employees and the unions and to act openly and honestly. This line of questioning proceeds on the assumption, unfounded, that people can manipulate it by being dishonest. I mean, the answer is people can manipulate anything if they wish to be dishonest. This takes us nowhere and it's unfounded.
PN1463
MS DOUST: It goes directly to what I want to put to the witness is the current situation.
PN1464
THE SENIOR DEPUTY PRESIDENT: I won't preclude the question but I think Mr Jauncey's comment is pretty accurate. Carry on.
PN1465
MS DOUST: That will be the submission we ultimately make as well, your Honour.
PN1466
One of the ways the company might manipulate the situation might be, for example, you get all the managers together and use the same terminology to describe a closure, wouldn't it?---That's not my view, no.
PN1467
If the place was closing down but you got everyone to use the same words and to say, "This is just for a period of time" or "We'll call it temporary," you could maintain a facade that the situation was in fact different to what it was, couldn't you?---Yes.
PN1468
And thereby try and manipulate the application of the redundancy agreement?
---You could, yes.
PN1469
What I want to suggest to you is that the shutting down of the boilers and kiln is anything but temporary. What do you say to that?---I disagree.
PN1470
Do you say it's a product of a downturn in the housing industry?---In the timber market, yes.
PN1471
Largely because of a downturn in the housing industry?---Yes.
**** WARREN MATTHEW GREEN XXN MS DOUST
PN1472
Where else do you supply timber?---Into export overseas, treated products for home handyman, gardens.
PN1473
Demand in those areas isn't sufficient to compensate for the housing industry downturn, is it?---Not at this stage, no.
PN1474
One of the things you manufacture is the wood that makes frames and trusses used in the building of new homes?---Yes.
PN1475
Downturns in the housing industry have been known in this country to last for lengthy periods, haven't they?---Yes.
PN1476
Up to years?---I'm assuming so, yes, we've had some. Yes.
PN1477
You understand, don't you, a shift in the performance of the housing industry is a product of a variety of factors?---I'm not greatly familiar .....
PN1478
Consumer confidence, you're familiar that that's a factor?---Yes.
PN1479
Wage growth is a factor that's going to impact on demand for housing, employment levels?---Yes.
PN1480
Shift in interest rates which are affected by global factors?---Yes.
**** WARREN MATTHEW GREEN XXN MS DOUST
PN1481
Fiscal and taxation policy?---Don't know.
PN1482
Sorry, you don't know?---I'm not sure ..... what do you mean by tax policies?
PN1483
For example, giving a first home owners grant?---Yes, yes, agree.
PN1484
That's one example?---Yes.
PN1485
You would agree with all of those factors, they are both national and international?---Yes.
PN1486
Can you tell me which of those factors are within your control?---Not a lot. None, I would say.
PN1487
None?---None.
PN1488
If the housing industry hasn't picked up by the end of the year, you won't be reopening the kiln and boiler in January, will you?---It will depend on the products we move into different areas.
PN1489
What do you mean by that answer?---Well, the kilns and boilers at Gilmore doesn't do a lot of our scantling product or frame and truss, as you put it. Does more around our CCA and our sleepers and CASE and other products as well, and some frame and truss.
PN1490
Do I understand you to say that the reopening then isn't related to the state of the housing industry?---No, it is. That's one factor.
PN1491
The other factor is demand for CCA sleepers, CASE?---CASE product, yes.
PN1492
You recall I asked you some questions earlier about the products that you make at Gilmore and you talked about some other products
I think which you export?
---Export, yes.
PN1493
Is that those products, CCA sleepers and so on?---No, no exports. Product that goes overseas for packaging and furniture, pallets.
PN1494
You accepted that demand for those products wasn't sufficient to overcome the downturn in the housing industry to keep the kiln and
boiler open when it closed?
---At this stage, yes.
PN1495
I suggest to you this, the demand at this stage for your CCA sleepers and CASE product isn't enough for you to keep the kiln and boiler open?---That's correct.
PN1496
You don't say, do you, that it's anything other than demand issues that dictate the future of the kiln and boiler?---That's correct.
PN1497
It's all about demand?---It's about demand at this stage, yes.
PN1498
Housing industry is one factor?---Yes.
**** WARREN MATTHEW GREEN XXN MS DOUST
PN1499
The largest factor?---Yes.
PN1500
You don't seriously suggest, do you, that if the housing industry didn't pick up but your demand for your export products or your CCA sleepers and CASE remained the same, that those products would be sufficient for you to reopen, do you?---No.
PN1501
You don't have any reason to think that there's going to be some explosion in demand for CCA sleepers or CASE product, do you?---We are looking at different avenues at the moment, yes, so we are looking at different demands we can work on.
PN1502
Does that mean you have reason to believe that those products are about to be the subject of great increased demand?---If I can explain, yes. We've just been accredited as a - for a heat treatment certificate which means we've got to treat timber that goes overseas which would be a lot of treated CASE and we would - our intention would be to most of that through the Gilmore kilns and boilers because they're slow drying and leave room for other products at Tumut. That's our intention.
PN1503
At what stage do you say you became aware of this factor?---This is only a recent factor we're looking at and we're still exploring it.
PN1504
Any specific date for when you're going to start ramping up production in that area?---No.
PN1505
I'll suggest to you again, if the housing industry hasn't picked up by the end of the year, you won't be reopening the kiln and boiler in January?--- We're looking at it, looking at, it's not correct.
PN1506
Sorry?---We're looking at it. I don't know that answer.
PN1507
You're currently looking at it and there's no firm commitment?---That's correct.
PN1508
What I suggest to you is that that's more of a wish than a firm intention?---That's a firm intention.
PN1509
You've not given the employees anything in particular in writing to confirm that, have you?---No.
PN1510
You haven't put yourself in a position where you could be held to that commitment by anyone, have you?---No.
PN1511
In fact, that position is not something which is within your control, is it?---Not entirely in my control, no.
PN1512
That's for a number of reasons, isn't it? First of all is because you don't control the national or macro-economic factors that impact of demand, do you?---No.
PN1513
You don't have the ultimate call in relation to reopening the kiln and boiler, do you?---Not the ultimate call, no.
**** WARREN MATTHEW GREEN XXN MS DOUST
PN1514
I think you indicated at one stage that to give any firm commitment you would need to go and speak with upper management?---That's correct, yes.
PN1515
I think you might have said that to Mr Miller?---I'm not sure. I possibly did, yes.
PN1516
I'm going to talk to upper management about this to try and get a firm date for you about when it might possibly restart.
PN1517
?---Yes.
PN1518
That's the discussion you say you had with Mr Miller on 22 June?---Yes, at one of the meetings, yes.
PN1519
Do you have that paragraph in front of you?---What number was that one, sorry?
PN1520
Paragraph 22?---Yes.
PN1521
It's in there you say that to Mr Miller?---Yes.
PN1522
I'm going to talk to upper management about this to try and get a firm date for you about when it might possibly restart.
PN1523
?---Yes.
PN1524
You haven't had a firm date back from upper management, have you?---No.
PN1525
I'm just curious about the words that you used there, "Try and get a firm date about when it might possibly restart." I think you could probably see what I'm suggesting about that. You used the vaguest language possible in relation to any restart of the kiln and boiler?---That's just my recollection. I might not be exactly what I said.
PN1526
I think you accepted before though that you made some effort to make sure that you produced a complete and accurate account?---Yes.
**** WARREN MATTHEW GREEN XXN MS DOUST
PN1527
You say you're honest and open when you're dealing with the union?---Yes.
PN1528
You used the vaguest possible words?---I said I was going to try and get a firm date from upper management.
PN1529
About when it might possibly restart?---When we could look at restarting, yes, might possibly restart.
PN1530
You gave Mr Miller in that absolutely nothing to work with in terms of a set date, did you?---Not in that context, no.
PN1531
You didn't even really go so far as to say, "There will be a firm date," did you?
---Not in that statement, no.
PN1532
Because you were saying you would try and get one from management because you had no expectation that they even had one?---I didn't know whether they had one, no.
PN1533
I suggest that in the meeting of the 21st - do you remember that meeting?---Yes.
PN1534
You were absolutely in the dark as to how long the kiln and boiler might be closed down?---Yes.
PN1535
I suggest to you that when you said to the fellows there, "The boiler may not open for 3 months or 6 months," you also suggested may not reopen at all?---No.
PN1536
But at that time you certainly had no firm date in your mind as to when it might reopen?---That's correct.
PN1537
A couple of days later you were talking about when it might possibly restart?
---That's correct.
PN1538
That's a matter that was out of your hands?---Yes.
PN1539
What I suggest to you is that your discussion with Dusty Miller on 22 June was consistent with you having said on 21 June, 3 months, 6 months, never?---No.
PN1540
It was consistent with never being one of the options in your mind at that time?
---No.
PN1541
What I suggest to you is, if you could have given any firm commitment to Dusty Miller on the 22nd, you would have?---Yes.
**** WARREN MATTHEW GREEN XXN MS DOUST
PN1542
You were aware by the afternoon of the 21st that this matter was going to be a substantial industrial dispute?---Not by the 21st I wasn't.
PN1543
You were aware by the end of that day that there were suggestions that this would mean that the company would be obliged to pay redundancy packages to employees?---Possibly they were looking at that, yes.
PN1544
You had had a meeting on the 21st and already you have another meeting the following day?---Yes.
PN1545
Mr Miller made it clear to you at the beginning of that meeting on the 22nd, that you describe in paragraph 22, that he had concerns about the situation?---Yes.
PN1546
He was already asserting that there's a redundancy because you would be shutting down the Gilmore operations?---That's correct, yes.
PN1547
You knew at that stage that any information that you had to contradict that suggestion would be relevant in that discussion?---Yes.
PN1548
As you've told us before you deal openly and honestly with the union?---Yes.
PN1549
If you had any information to contradict the suggestion that the operation was going to shut down entirely, you would have told him?---Yes.
PN1550
You had no information to hand to contradict that?---No.
PN1551
Had no information to hand to contradict the suggestion that the kiln and boiler would never open?---No.
PN1552
The best you could offer was, you know, a bit of a hope that someone from upper management might give you something firm to work with?---Yes.
PN1553
What I want to suggest is that, in those circumstances it must have been very clear to you that not reopening was one of the options?---No, because we always looked at what we were going to do in the future.
PN1554
Whatever you said to Mr Miller on the 22nd about trying to get a firm date, you didn't have one by 24 June, did you?---No.
PN1555
You make no mention in the memos of 24 June of any firm date for reopening?
---That's right.
PN1556
Those memos are under the name of Mr Lindley but I think you annexed them to your statement. Did you have some role in drafting them?---Yes.
**** WARREN MATTHEW GREEN XXN MS DOUST
PN1557
Did you draft it?---No.
PN1558
Did Mr Lindley draft it?---No.
PN1559
Who drafted the memos?---The words of Mr Jauncey on the memos.
PN1560
Already by 24 June 2005 Mr Jauncey was drafting your memos to your employees?
PN1561
MR JAUNCEY: I object. It's privileged. I'm happy to concede that I worked with Mr Green in terms of drafting these memos but I don't think there's any relevance in going further and they are privileges used in going further.
PN1562
THE SENIOR DEPUTY PRESIDENT: What do you say?
PN1563
MS DOUST: The memos have been attached now.
PN1564
May I suggest this to you, Mr Green, you took a great deal of care in the way you went about drafting those letters?---As all the letters I did, yes.
PN1565
You were aware at that time that this issue was likely to be the subject of industrial disputation?---Yes. Dusty mentioned there would be a dispute, yes.
PN1566
You were aware that giving an end date for the closure period would have the capacity to quell uncertainty amongst the kiln and boiler
employees, weren't you?
---Yes.
PN1567
If you could have given a date you would have, wouldn't you?---Yes.
PN1568
That would have made your life a whole lot easier?---Yes.
PN1569
You didn't give any assurance about the period because you knew you were in no position to make any promises about when the boiler operations might recommence?---At that stage, yes.
**** WARREN MATTHEW GREEN XXN MS DOUST
PN1570
What I want to suggest to you is this: those memos of 24 June, annexure C, see the position that's stated there, you wish to temporarily close? Do you see that right at the very beginning?---Yes.
PN1571
Unclear exactly how long the closure will last?
PN1572
?---Yes.
PN1573
Remains the company's intention to resume normal operations in future.
PN1574
?---Yes.
PN1575
But no definite date?---No.
PN1576
What I want to suggest to you is, is that document, the position stated there, there's a closure, we don't say how long. We don't even estimate how long it might be so we don't even say 6 weeks, 6 months or 6 years. You appreciate, don't you, there's absolutely nothing in that document to indicate the general nature of the closure?---I agree.
PN1577
It is just utterly open-ended and that is consistent with you having said, perhaps in a moment of frankness and openness, 3 months, 6 months, never?---I don't recall the never.
PN1578
You don't recall the never?---I didn't say never.
PN1579
Do you say you don't recall it or you deny it?---I said 3 months, 6 months, keep them in the loop.
PN1580
Sorry, keep them in the loop?---I told them I would keep them in the loop and I would regularly have meetings with them.
PN1581
What I suggest to you is that, when you did these memos on the 24th you were careful to make sure that you weren't tied to anything in the way of an estimate of the period of the closure, were you?---I didn't have a closure date. I didn't have a reopening date, sorry.
PN1582
You didn't even put in the 3 months or 6 months, did you?---No.
PN1583
Had that gone from your mind by the 24th, had it?---No.
PN1584
You wouldn't even make that sort of commitment of an estimate in those memos, would you?---No.
**** WARREN MATTHEW GREEN XXN MS DOUST
PN1585
You knew if you put something definite, someone might try and hold you to it?
---That wasn't the case, no. I just did not know the start-up date.
PN1586
You weren't in a position at that stage to commit and say, "It's going to be 3 or 6 months"?---No.
PN1587
You couldn't even say that much by the 24th, could you?---No.
PN1588
Equally, I think your next communication in writing, Mr Green, was to Mr Miller on 4 July? Can I just ask, did you draft that letter?---Which one is that one, sorry? There are a number of 4 July ones.
PN1589
Sorry, B?---Yes.
PN1590
You give no end date to the closure in that letter, do you?---No.
PN1591
You don't even give your estimate of 3 months or 6 months?---No.
PN1592
You were very conscious by that stage that the length of the closure was a matter which might impact upon employee entitlements to redundancy?---Was I aware of that? Yes.
PN1593
Sorry?---Was I aware of that?
PN1594
You were aware of that, yes?---Yes.
PN1595
I suggest that that was a very important concern to you in the way that you conducted yourself throughout the negotiation of this dispute?---I always conduct myself the best I can. It's a consideration, yes.
PN1596
Let me be plain about this. You wished to avoid the company becoming liable to pay redundancy payments to the employees in the kiln
and boiler, weren't you?
---Yes.
PN1597
You have bunch of fellows, some of them have got 20, 30 years' experience?
---Yes.
PN1598
It would be a substantial amount of money for the company to pay out redundancies to those employees?---Yes, it would be.
**** WARREN MATTHEW GREEN XXN MS DOUST
PN1599
That was a cost that you would be keen to avoid the company incurring during a period of your stewardship as operations manager?---That never came into it, no. I wasn't concerned with my stewardship.
PN1600
But not something you wanted the company to have to cop?---We had a look at all our options, yes. That's not - I wasn't concerned about my control where it was made or not.
PN1601
Moving away from your stewardship, you were anxious to ensure that the company didn't have to pay out the substantial redundancy payments to the employees in the kiln and boiler at Gilmore, did you?---Yes.
PN1602
Aware as at 4 July 2005 that your letter to Mr Miller was going to be an important communication in this dispute?---Yes.
PN1603
It might turn up against you in a court or commission later on down the track?
---I wasn't thinking about that, no.
PN1604
Did you draft this letter?---I did it, with Mr Jauncey's help, yes.
PN1605
What I suggest is, the uncertainty in this letter is also consistent with never being one of the options, isn't it?---Sorry, say that again.
PN1606
The terms of this letter are consistent with never being one of the options. Do you understand - - -?---I know what you're saying. It wasn't never one of the options, no.
PN1607
What I suggest to you is this, Mr Green, if it wasn't never one of the options you would have given something definite in that letter about when the kiln and boiler would reopen?---I did not have a date to give a certain date.
PN1608
You didn't give a date in that letter?---No.
PN1609
You didn't give any estimate?---No.
**** WARREN MATTHEW GREEN XXN MS DOUST
PN1610
Didn't set out the circumstances in which the kiln and boiler would reopen?---No.
PN1611
Didn't give any promise about a date beyond which the kiln and boiler would definitely be opened again?---No.
PN1612
Let's just be clear about this. You also put that position, didn't you, in your memos to the employees on 21 July?---Yes.
PN1613
No commitment there as to when the kiln and boiler might reopen?---No.
PN1614
No estimate as to how long you think it's likely to go on for?---No.
PN1615
No statement as to the circumstances that need to be satisfied for the place to reopen?---No.
PN1616
The same position, isn't it, in the memos to the employees of 9 August? Do you have those?---No, I haven't.
PN1617
I think they are R2 and R3. I'll just find them. Might I hand my copies of the documents to you? Are you familiar with those documents, Mr Green?---Yes.
PN1618
Just remind me, are they signed by you?---Yes.
PN1619
You drafted those documents, did you?---Yes.
PN1620
By yourself?---No.
PN1621
With Mr Jauncey, I presume?---Yes.
PN1622
Again, no commitment to employees as to when this state of affairs might conclude?---No.
PN1623
No estimate as to, in rough terms, how long the closure might - - -?---No.
PN1624
What I suggest to you is that in all of your communications you have been at pains to ensure that you give absolutely no commitment as to the time of the closure?---I did not have a date.
PN1625
Would you answer my question. You have been at pains to give absolutely no commitment?---I haven't given a commitment. That's correct.
PN1626
THE SENIOR DEPUTY PRESIDENT: Sorry, I didn't hear the answer?---I haven't give a commitment. That's correct.
**** WARREN MATTHEW GREEN XXN MS DOUST
PN1627
MS DOUST: By my account, we've got the meeting of 21 June, 22 June, discussion with Dusty?---Yes.
PN1628
Your memo on 24 June, your letter to the union on 4 July, your memo to the fellows on 4 July, your memo to the fellows on 21 July,
your memo to the employees on 9 August 2005, not a squeak about when the place will reopen?
---Not the memos, no.
PN1629
None of that?---No.
PN1630
You can't say for certain if it will be open, can you?---I can't say for certain the date, no.
PN1631
You can't say for certain that it will reopen?---I've got confidence we'll reopen, yes.
PN1632
That is a decision that will be within the power of someone else in the company?
---As well as myself, yes.
PN1633
To the extent that it's within your power now, some 2 months after the closure, you still can't give anything definite about when
the kiln and boiler will reopen?
---No.
PN1634
What exactly is temporary about that state of affairs, Mr Green?---I'm not sure what you mean.
PN1635
I think the word that you use in all of these communications is that this is a temporary state of affairs?---Yes.
PN1636
It's actually indefinite, isn't it?---I think it's temporary.
PN1637
Is it indefinite?---It's indefinite at the moment till we work out a date, yes.
PN1638
By its very nature indefinite means that there's no defined limit to it, doesn't it?
---That's correct.
PN1639
Whereas you might say that - for example have you ever had a temporary filling in your tooth?---I have actually, yes.
PN1640
What, you leave it in for a couple of weeks or something, or a few days until you get back to the dentist?---That's right.
**** WARREN MATTHEW GREEN XXN MS DOUST
PN1641
See, what I want to suggest to you is that this use of the term "temporary" through all of your communications is something that's consistent with something that might go on for, you know, a couple of weeks or a couple of days, but you've pulled the word "temporary" and recited it like a mantra throughout all of your communications in relation to a situation that's anything but temporary, haven't you?---I have used that word, yes.
PN1642
My suggestion to you, Mr Green, is that you use the word quite incorrectly, don't you?---I don't believe I do, no.
PN1643
You wouldn't call it a temporary filling if you got your tooth filled with a temporary filling but your dentist said, "You know, I'll have a look in January and see if I can slot you in"?---It's a different situation.
PN1644
Yes, but it's your use of this term "temporary". What I suggest to you, Mr Green, is that it's actually quite dishonest, isn't it?---No, I don't think it's being dishonest. We used the word "temporary" because we were looking at when we were going to start it back up.
PN1645
There's no other situation you can think of which is of an indefinite nature like this that you would describe as temporary, can you?---I'm not going to - I'm not going to ..... there's temporary - different areas you can talk about, but no.
PN1646
The use of the word in this context is entirely inaccurate, isn't it?---Not in my opinion, no.
PN1647
The truth is the closure is indefinite?---No.
**** WARREN MATTHEW GREEN XXN MS DOUST
PN1648
It is out of your hands?---It's partly out of my hands, yes.
PN1649
It is entirely out of your hands, Mr Green?---No, it's not entirely, no.
PN1650
If it is in any part within your hands, can you tell the Commission now when you're going to reopen the kiln and boiler?---We're looking at reopening at the start of January, what I've quoted.
PN1651
No, no, I'm asking you when you’re going to do it?---January.
PN1652
You're not giving that commitment to the Commission?---We already gave that commitment.
PN1653
When do you say you gave that commitment?---I've given that commitment before.
PN1654
You accepted when I asked you some questions earlier on, I think, Mr Green, that that was contingent upon a whole lot of other things happening?---Yes, I did.
PN1655
You can't give any firm commitment even about January?---At this stage it's our firm commitment, yes.
PN1656
I'd describe that as a vain hope rather than a firm commitment, Mr Green?
PN1657
MR JAUNCEY: This is just getting badgering. He has given his evidence and he doesn't need to start having pejoratives put to him.
PN1658
THE SENIOR DEPUTY PRESIDENT: I think, ladies and gentlemen, this might be the appropriate time to adjourn and the Commission will recommence at 2 pm. Mr Green, you're still in the witness box. You're not to discuss your evidence with anyone during the break. The Commission will adjourn.
<LUNCHEON ADJOURNMENT [12.50PM]
<RESUMED [2.05PM]
PN1659
THE SENIOR DEPUTY PRESIDENT: Yes, Ms Doust.
PN1660
MS DOUST: Mr Green, Clayton Lindley is the manager with direct responsibility for the Gilmore site, isn't he?---Yes.
PN1661
And your office is actually based at the Tumut site?---That is correct.
**** WARREN MATTHEW GREEN XXN MS DOUST
PN1662
In terms of having an understanding of the day to day realities for any of these employees, Mr Lindley would be in a much better position then you?---Yes.
PN1663
You wouldn't disagree, would you, if he had a view about their particular working conditions?---No.
PN1664
Or what was reasonable to ask of them in any circumstance?---No.
PN1665
You in fact would look to him to inform you about those matters in making any judgment?---Yes.
PN1666
In relation to the Tumut kiln and boiler, is there any reason for you to think that this is going to become less efficient over time?---No.
PN1667
Is it likely to change at all the efficiency of that part of the Tumut operations?---It could depend on product mix or market conditions, yes.
PN1668
It might become more efficient?---It could become more efficient or less efficient depending what we put through it.
PN1669
What I want to suggest to you is in part the closure at the Gilmore site is the produce of increased efficiency of the Tumut kiln and boiler?---No.
PN1670
Do you deny that?---Yes.
PN1671
Absolutely?---Yes.
PN1672
If that was a view expressed by one of your managers, would you be surprised by that?---No, that is their view.
PN1673
Not a factor in the closure?---It has become more efficient so, yes, it is a factor.
PN1674
Because I am just looking at the minutes of the enterprise consultative committee meeting on 16 June 2005, Mr Green. You didn't attend that meeting?---No, I was away. What date was that again, sorry?
PN1675
16 June 2005?---No, I was away.
PN1676
I think you received those minutes as someone on the distribution list?---Yes.
PN1677
Because that document says:
PN1678
We will be closing the kilns and boilers operation at Gilmore for an interim period of time. The reason being the improved capacity of the Tumut operation and the intake of log is lower then what we were budgeted to do.
PN1679
?---That is correct.
PN1680
So the improved capacity at Tumut is a factor in the closure?---Yes and the other one you stated, and log intake as well.
PN1681
But just on the Tumut kiln and boiler, no reason to think that that efficiency is going to decrease?---At this stage, no.
PN1682
I think we were talking about some CCA product just before lunch?---Yes.
**** WARREN MATTHEW GREEN XXN MS DOUST
PN1683
That is a product that is going out of vogue out there in the big wide world, isn't it?---In some circles, yes.
PN1684
Is it copper chrome arsenic, or something like that?---Yes, copper chrome arsenic.
PN1685
And the view out there in the world is that it is not pleasant to have that in wood product?---On playground equipment, yes.
PN1686
So demand for that is decreasing out there in the world?---Yes.
PN1687
You have got a treatment plant along the Gilmore site that produces that product?
---Yes.
PN1688
That hasn't had a dream run in the past little while, has it?---No, I had some issues, yes.
PN1689
In fact that plant should at proper capacity produce a hundred cubic metres a shift, does that sound right?---I am not sure of that number, but somewhere around that number I would say, yes.
PN1690
If I was to suggest to you that the treatment plant was only getting out something like 20 cubic metres per shift, would that sound right?---I don't know that number off the top of my head.
PN1691
Would you agree with the proposition that the treatment plant isn't producing the amount of product it should?---No.
PN1692
You don't agree that that proposition?---No, because I don't know the detail.
PN1693
You don't actually know the detail of what is happening with your production of that CTA product?---I don't know the numbers off the top of my head, no.
PN1694
But you are not able to say anything about whether or not you are producing less or more then you budgeted to do?---Producing less. I don't know the exact number, but we are producing less, yes.
**** WARREN MATTHEW GREEN XXN MS DOUST
PN1695
Any idea in what sort of order of decrease we are talking? Any idea whether it is half of much you are supposed to be doing, a tenth as much?---It is not half as much, but is down compared to budget, yes.
PN1696
I suggest to you that the treatment plant needs a fairly comprehensive overhaul?
---It needs a pump overhaul, yes.
PN1697
I think there has been an estimate that you need to spend something like 300 to 400,000 to fix up that part of the operation?---That is not the number that I am aware of, no.
PN1698
What is the number you are aware of?---
PN1699
MR JAUNCEY: I object. I just don't see the relevance of what is happening in another area of the site.
PN1700
MS DOUST: Well, your Honour, this witness gave some evidence prior to lunch about progress in various areas of production impacting on the kiln and boiler and this is one of them.
PN1701
THE SENIOR DEPUTY PRESIDENT: I will permit the question.
PN1702
MS DOUST: I'm sorry?
PN1703
THE SENIOR DEPUTY PRESIDENT: I will permit the question.
PN1704
MS DOUST: You were going to tell me what sort of work you need to fix up the CCA treatment plant?---It is not a fix up, it is a modification. I think it was 150,000 I think is the number I have got in my head.
PN1705
So a substantial investment, you would agree?---Substantial investment, yes.
PN1706
When are you planning to do that?---We are still looking at our options around that.
PN1707
So nothing firm on that?---No, we are producing what we need to at the moment, so nothing further.
PN1708
And you are producing what you need to in a context of fairly decreased demand?---Yes, I agree.
**** WARREN MATTHEW GREEN XXN MS DOUST
PN1709
Is there anything definite happening in December of this year that is going to mean that the kiln and boiler can reopen in January?---Anything definite with the treatment plant or with?
PN1710
No, in relation to the kiln and boiler?---No. No, I don't think so.
PN1711
Nothing in particular happening at that time?---No, we have a shut in December and we are doing some work at the Tumut site around our kilns and boilers which we are expecting to start up the Gilmore site, kilns and boilers.
PN1712
But at this stage it is correct, isn't it, there is nothing definite that you can point to between now and December which would allow you to reopen the kiln and boiler in January?---Only the case I have spoken about earlier looking at our case, our drying out case at Gilmore.
PN1713
Looking at?---Drying out case at Gilmore I spoke about earlier.
PN1714
And that is something the company is looking at?---Yes.
PN1715
No date on the books for when you might commence that?---No, we are still evaluating it.
PN1716
No firm commitment as to whether or not the company is in fact going to undertake that?---No.
PN1717
What I suggest to you is there is nothing that makes January a definite time for reopening the kiln and boiler at the Gilmore operation, is there?---The Tumut kilns and boiler upgrade does, yes.
PN1718
When do you say that is taking place?---We are looking at the Christmas shut.
PN1719
So you are going to upgrading the kilns and boiler at Tumut?---Yes.
PN1720
Over the Christmas break?---Yes.
**** WARREN MATTHEW GREEN XXN MS DOUST
PN1721
And what sort of upgrade is that?---Looking at repairs to the existing trolleys and the trolley tracks.
PN1722
How long do you think that is going to take?---I think it is possibly a two to three week period to do the upgrade.
PN1723
You have got a definite date for that?---No, still looking at the quotes for the job now.
PN1724
When I asked you before about anything definite which will lead to the kiln and boiler at Gilmore reopening this is again something that you are looking at not permanently scheduling?---No.
PN1725
Really the proper answer to my question is there is nothing, isn't it?---Not definite, yes.
PN1726
I suggest to you, Mr Green, that there is throughout the communications you have carried out with the union and the employees a consistent theme that being of the use of the term "temporary", do you agree that is consistent in all of your communications?---Yes.
PN1727
And that is consistent isn't it for the period since you first spoke with Mr Jauncey shortly after this issue arose on site, isn't it?---Yes.
PN1728
And I think you agreed before you were conscious that this was a situation which might lead to a bunch of employees with long service getting a substantial redundancy payments?---Yes.
PN1729
I suggest that from the very first your communications have resulted from the legal advice you have got about the operation of the certified agreement?---Sorry?
PN1730
That is correct, isn't it?---Could you repeat the question?
**** WARREN MATTHEW GREEN XXN MS DOUST
PN1731
You have used this term "temporary" or "period of time" or "interim" because you have had some legal advice about the operation of the certified agreement to this situation, haven't you?---No.
PN1732
What I want to suggest to you is that you have indicated at every point along the way that this shutdown is temporary contrary to the actual reality?---It is temporary.
PN1733
And with a consciousness of avoiding the need to pay out redundancy to these employees under the certified agreement?---No.
PN1734
Thank you, nothing further.
THE SENIOR DEPUTY PRESIDENT: Mr Jauncey, any re-examination?
<RE-EXAMINATION BY MR JAUNCEY [2.18PM]
PN1736
MR JAUNCEY: Mr Green, you were asked some questions earlier about whether Mr Lindley's view on certain things was reasonable. Do you believe that it is reasonable for the company to have asked the employees to do the work which they are being asked to do?---Yes.
PN1737
Nothing further.
PN1738
THE SENIOR DEPUTY PRESIDENT: Can I ask one question? What is the case product?---It is inch board they use for making pallets and bins and things you see storage parts on for export overseas.
Nothing arises from that I am sure? Thank you, you are excused as a witness.
PN1740
THE SENIOR DEPUTY PRESIDENT: Mr Jauncey, nothing further?
PN1741
MR JAUNCEY: Your Honour, the only thing that I might ask is would it be possible for me to take five to ten minutes to get some instructions on the matter before we proceed into submissions?
PN1742
THE SENIOR DEPUTY PRESIDENT: I presume there are no issues from anyone so certainly. So we come to the point in the proceedings where both sides are to make submissions and Ms Doust will commence so presumably you wouldn't mind a ten minute break either. The Commission will adjourn until 2.30 pm.
<SHORT ADJOURNMENT [2.20PM]
<RESUMED [2.37PM]
PN1743
THE SENIOR DEPUTY PRESIDENT: Yes, Ms Doust?
PN1744
MS DOUST: Your Honour, we come before you pursuant to the application made to this Commission under section 170LW of the Act seeking the Commission's intervention to settle this dispute concerning employees who are members of the CFMEU employed by the respondent, Weyerhaeuser Australia at their Tumut regional operations.
PN1745
The certified agreement hasn't been certified on 24 May 2004 and in force between 1 July 2004 and 31 June 2007. I will just refer to that agreement to take your Honour to the relevant parts of it and the parts that we rely upon, and the first is clause 6 of that agreement. Your Honour will see from that clause at the agreement is to be read and interpreted wholly in conjunction with the industry aware being the Timber and Allied Industries Award which is the relevant award for our purposes today. There is an important proviso in that clause which is that to the extent of any inconsistency between the award and the agreement the agreement is to prevail.
PN1746
The next relevant provision we say is this, clause 9.5, which provides that the redundancy agreement which is contained in attachment 2 forms part of the agreement. Attachment 2 for all intents and purposes is like any other clause of the agreement and enforceable as such.
PN1747
In considering the circumstances on this matter, your Honour, we also refer to clause 10.5 which deals with career opportunities, demarcations and flexibility. The important provision is this, starting in the second paragraph of that subclause, your Honour:
PN1748
Any training and change to work organisation or practice shall meet the following points.
PN1749
And a number of points are listed thereafter. The relevant one being the one which I think should be across the page on your Honour's copy on page 15.
PN1750
Changes to work organisation should increase in opportunities for employees to gain higher level of skills as well as cross skilling.
PN1751
And your Honour will see after the next asterisk point it is a general statement:
PN1752
The parties to this agreement recognise that the work practices such as agreed to here may already exist at some sites. The intention is not to reduce career opportunities, flexibility and productivity measures already in place but to provide further opportunities.
PN1753
And the clause goes on to give some examples of the flexibility and change which are mandated by that clause. They are examples that this Commission will probably not be unfamiliar with. They describe effectively people who are either operators or tradesman performing effectively some ancillary duties of people in the other calling or trade or stream whatever you would like to call it.
PN1754
That particular clause, and the provisions in that clause, we say, will inform your Honour in some part in considering the application of the redundancy agreement in these circumstances, and it is clear, we say, that the agreement evidences the parties mutual commitments that changes should increase opportunity for employees to gain higher levels of skill, cross skilling, that their career opportunities should not be reduced.
PN1755
Your Honour is ceased of this matter by reason of the operation of clause 13 of the agreement which appears at page 19 by which the parties agree to confer, my version says "an" necessary jurisdiction to the Commission, I presume that in the certified version that appears as "any", but we can probably take it as read that is what was intended:
PN1756
The parties agree to confer jurisdiction on the Commission to settle any dispute between the parties through a conciliation or, where necessary, arbitration whether the dispute arises from any provisions in this agreement or the awards mentioned in this agreement or not.
PN1757
It is clear, your Honour, that this matter arises out of the agreement, and the dispute relates to the operation of the agreement in the current circumstances. This is a dispute about the application of clause 1 of attachment 2 to the agreement in the current circumstances, and the parties agree in clause 13.6 of that disputes procedure obviously subject to their rights of appeal to accept the commission arbitrating the dispute.
PN1758
Those matters are all, we say, relevant background, your Honour, but the issue that really concerns your Honour today is the application of clause 1, application and definition of the redundancy agreement which forms attachment 2 to the agreement.
PN1759
The issue is whether the company no longer wishes the job any of these employees has been doing done by anyone directly employed by Weyerhaeuser.
PN1760
It is also required for this redundancy agreement to operate that that decision leads to termination of employment or redeployment of the employee for any of the following reasons, and then a number of reasons are set out.
PN1761
Your Honour, in this case there is no issue that these employees have been redeployed by the company.
PN1762
Mr Green accepted that the current circumstances involve a general downturn in activities so as to satisfy the first dot point of 1.1, and I am not entirely clear, I think he did embrace the second dot point in the alternative being that there was a restructuring of the industry or enterprise reorganisation of work systems.
PN1763
Regardless of Mr Green's agreement or otherwise, we submit that either of those criteria as being satisfied, and that there is no issue that those circumstances exist.
PN1764
The only issue we say that troubles your Honour is a proper characterisation of the nature of the closure of the kiln and boiler at the Gilmore operation of the respondent.
PN1765
And your Honour is concerned with that to determine whether the company no longer wishes to job the employee has been doing done by anyone directly employed by Weyerhaeuser.
PN1766
It is probably trite to say that that particular clause requires the Commission to give some consideration to the objective circumstances, and that it is not the case that simply whatever the company says is its position about its wishes is the final word on this particular course.
PN1767
Your Honour has to look to the objective circumstances and we say particularly in this case look behind the surface.
PN1768
We say the company doesn't any longer wish the jobs these employees have been doing done by anyone directly employed by them.
PN1769
It is a very straightforward case on one view. It is clear that the company doesn't possess that wish currently. There are a number of jobs at the Gilmore operation which were held by the four employees involved in these proceedings, Bruce Withers, Darrell Robinson, Paul Costelloe and Rod Back.
PN1770
There are also four other employees who are not involved in these proceedings who are no longer performing duties in the kiln and boiler.
PN1771
Now was the company's wish to have those jobs done by the employees until around somewhere between mid-June 2005 and the announcement of their intentions to close the kiln and boiler on 21 June. We say on and from that date the company has not wished those jobs to be done by anyone directly employed by Weyerhaeuser.
PN1772
This is not a case where employees have been sent off to a different area of the plant for the afternoon or for the rest of the week for some unforeseen circumstance. The company made a definite decision to close down that part of its operations and despite the numerous opportunities given to them in all of their correspondence with the employees, with the union and through Mr Green in evidence today they have yet to say with any certainty when they might wish the employees to be doing those jobs again, and your Honour should see that in its context which is two months have now elapsed from the announcement of the closure to these proceedings, and there is still no definite time for when the employees might be required to perform the work in their jobs.
PN1773
Your Honour heard evidence from two witnesses on behalf of the company. The first being Mr Lindley, the second being Mr Green, and your Honour did hear a consistent refrain that the closure was only temporary.
PN1774
What we say to you about the evidence of Mr Lindley is this, he is not a person in a position of authority to be able to compel the reopening of the kiln and boiler at Gilmore to the extent that he told your Honour anything about the position at Gilmore, he relate to your Honour what he was told, and he accepted from me that he had really been told nothing more than each of the employees which, in our submission, wouldn't give them any comfort, and hasn't.
PN1775
So your Honour shouldn't take anything Mr Lindley has said as supportive of the proposition that in fact the company does wish the jobs to be done by one of their employees.
PN1776
Your Honour also heard some evidence from Mr Green in this matter, and we would submit that your Honour should be very reluctant to form any conclusion about the Gilmore operations future from what Mr Green has had to say here before the Commission. He is currently acting in his role. He accepted that whilst he was responsible for the decision about the closure that the decision about any reopening of the kiln and boiler was not in his hands.
PN1777
The most important evidence for your Honour is perhaps the evidence that could have been given to this Commissioner by upper management being, I think, Mr Zed, who Mr Green referred to and he is noticeably absent, and noticeably absent in circumstances where it was clear to the company that the issue of restarting the boiler and kiln was the critical issue. That was a matter which was conceded by Mr Green who has had the running of this matter, spoken frequently with Mr Jauncey about the matter, and had responsibility for the initial decision.
PN1778
So the company has been aware from day 1 that the nature of the shutdown and the likelihood of reopening is the critical issue in the matter, and it hasn't produced to this Commission the senior manager who might be able to properly inform your Honour about the position. It has chosen not to, and your Honour is entitled to conclude that nothing that such a person might tell your Honour will assist them in their case.
PN1779
What your Honour does have to deal with is the objective evidence, and the objective evidence is this as at the date of this hearing there has been no step by the company to recommence their kiln and boiler operations.
PN1780
There has been no step taken to give the employees any definite date for a return to their previous duties.
PN1781
Mr Lindley told us that there had been no step taken to replace the pump required in the kiln and boiler, so again objective evidence not indicating any intention on the company's part, not indicative of any degree of urgency, and there has been nothing in the way of the establishment of any timetable circulated amongst the site for recommencement of the kiln and boiler operations.
PN1782
Those are matters which are not surprising your Honour because the closure due to a whole lot of reasons that don't particularly suggest that they are going to go away.
PN1783
One of those reasons such as they are articulated by the company is the down turn in the housing industry. Mr Green accepted that down turn might very well last for a long time. It arose out of a whole lot of factors beyond his control such as consumer confidence, wage growth, shifts in interest rates and things such as the availability of first home owner's grants and taxation policy and the like.
PN1784
Those are macro economic factors that this company has no capacity to control. In fact none of us can control it. Economists might like to think that they can predict the operation of those factors, and our experience probably suggests that they can't even predict how those factors will operate.
PN1785
So one factor, I will say it is the substantive factor, it is fairly clear from the evidence that it was, is the down turn in the housing industry and none of us can say for certain when those circumstances might change.
PN1786
When it was suggested to Mr Green that if the housing industry hadn't picked up then there wouldn't be a reopening of the kiln and boiler in January he sought to suggest that there might be these products in different areas that might impact on the situation. Well, your Honour, what we say about that is none of these factors have been eluded to in Mr Green's statement.
PN1787
In the attempt that he makes to characterise the nature of the shutdown in paragraphs 13 and 14, the only thing referred to with any precision, if you call it that, is the downturn in the housing industry.
PN1788
Whatever these other factors are they weren't sufficient as at mid-June to be able to keep the kiln and boiler open, and they are not sufficient now for the company to give any firm date about any reopening, and when he was pressed for a little more detail about these various other products it all turned to air, we submit, your Honour.
PN1789
The suggestion that these various other products might somehow come to the rescue was, we say, only a vain hope. There was some reference to the CCA treatment plant, and the best Mr Green could do about that was to say that they were still looking at the options. Equally, I think there was some suggestion that they might start drying the case at Gilmore, well, there is nothing firm about that.
PN1790
So there is nothing in the way of objective evidence to support the suggestion that the kiln and boiler will be reopening.
PN1791
What your Honour has is the word of Mr Green as produced in numerous memos since about 21 June. Now, bear in mind one of the first people he discussed the situation with was Mr Jauncey, and he was conscious from the very beginning that this matter was one which might lead to the payment of redundancy to a number of employees, and those redundancies, your Honour, are no mere bagatelle to this company.
PN1792
Bruce Withers, your Honour, has service since 1979, some 26 years service. Darrell Robinson has been on the site since about 1985 or 20 years service. Paul Costelloe has 11 years service on the site and Mr Back started at the site in 1974 so he is coming up on 31 years service.
PN1793
Your Honour, those aren't the only employees likely to be effected by whatever stance the company was taking. There were four other employees in the boiler and kiln the company's decision is likely to impact upon.
PN1794
The company's stated position might lead to having an obligation to pay redundancy and your Honour we say that the initial circumstances of the announcement are very instructive and your Honour is left to determine whether the evidence of the employees in this proceeding is to be preferred to the evidence of Mr Green so far as the statements about the nature of the closure are concerned.
PN1795
But it is instructive, your Honour, we submit, to remember that when Mr Lindley was calling in the employees to tell them about the proposed closure, he referred to the meeting being about the future of the operation. That is something that he accepted in his evidence today. That was a statement made at an unguarded moment before the lawyers had been called in, your Honour, and you are entitled to regard it as perhaps candid and frank explanation of the situation.
PN1796
Each of those employees gave evidence to similar effect about what was said by Mr Green in the meeting on 21 June.
PN1797
Mr Withers said Mr Green said in response to a question as to how long it would be before the boiler would start up that Mr Green said:
PN1798
"It could be three or six months or it might never start up again."
PN1799
That is what Bruce Withers said.
PN1800
Darrell Robinson said:
PN1801
Bruce says, "How long will it be?". Mr Green says, "It could be three, six months or it may never start again, we don't know".
PN1802
Paul Costelloe says that Bruce said something like this:
PN1803
"When will the starting point be?" and Warren said, "Three months, six months or never".
PN1804
Rodney Back says that Bruce said:
PN1805
"How long is it going to be for?" and Warren said, "Three months, or six months or may be never".
PN1806
We submit that it was put to each of those employees that their recollection about that meeting was flawed. They are substantially consistent in what they say about the meeting, and their account actually tallies up with the objective circumstances, and that is Clayton Lindley saying we are talking about the future of the operation, and everything that has happened since that time which indicates all of the objective circumstances indicate that there is no definite plan to restart the kiln and boiler. Would the company like to at some stage down the track. Perhaps they would.
PN1807
I suppose all companies would prefer to have their entire operation running to full capacity then to have parts of it closed down. But should your Honour make a decision which will consign four long serving employees who have been working at the highest skilled positions on this site for between 10 and 31 years to the vagaries of a company's desire for the future. I call it a vain hope. It is sort of hoping that we will be able to move into a bigger house because we could be ..... between here and the end of the year so it is my intention to move into a bigger house in January because the recommencement of the kiln and boiler is that contingent on other factors beyond the company's control.
PN1808
Your Honour heard evidence from Mr Lindley about the position of the employees who are effected by these proceedings, and the evidence was that in the past the employees had agreed to perform alternative duties during the shutdown in February, March, and on that occasion the company gave them a finite period for the alternative duties, and continued maintenance of their wages, and we ask your Honour to give some considerable attention to the evidence in Mr Lindley's statement at attachment B which tells your Honour something about the capacity of these gentlemen to perform other duties.
PN1809
You see Mr Back the kiln attendant has three other skills apart from the kiln one of which doesn't equip him to perform any particular duty that being the radar. The cycle count equipping him to perform a fairly menial position. He also has the fork skill which qualifies him to perform a substantive role. Nowhere near the level of skill being exercised by him and we take your Honour back to the terms of clause 10.5 of the agreement, changes to work organisation should increase opportunities for employees to gain higher levels of skill.
PN1810
This agreement does not mandate shifting employees out of highly skilled roles into any lower skilled role let alone roles which are at the absolute opposite end of the spectrum.
PN1811
If your Honour decides in the company's favour these employees will not only be consigned to very menial jobs in comparison to their current jobs, they will be deskilled as a result, and that is something which may well have substantial impact upon them if down the track these operations close and they are out in the labour market.
PN1812
The situation is probably even more extreme with Mr Withers who has the boiler attendant's skill and has exercised that skill every day I think apart from possibly two since 1979, and who has the radar and the pack ID skills. The company is proposing to put a 63 year old man onto a conveyor belt position. Thank goodness for Mr Lindley's frankness in his evidence so that your Honour can see the true nature of what this company suggests. He agreed the company's position is unreasonable. We say it is unreasonable before your Honour even starts to consider the substantial wage impact on these employees.
PN1813
Mr Green was inclined to accept my invitation to hold himself out as someone who was honest and open in his dealings with employees and the union. Perhaps honest and open only to the extent that he is fairly clear at the time that he is shafting them.
PN1814
To suggest that these employees should cop a wage decrease of around a quarter or a third of their pay, I think the evidence was to the effect the employees are getting somewhere around 50,000 a year, sorry, I think closer to 59 to 63, but their estimates were that if they go back onto these positions on the nine and a half hour shift that they will be losing somewhere in the order of $18,000. Whether it is 15 or 18 is really neither here nor there, but to say to employees on that rate of pay we will take away a quarter of your wages and we will put you into a low skilled position when you have been the highest skilled employees, and we will not give you the courtesy or respect of an end date for your predicament it is a disgrace. This Commission shouldn't countenance it not for a second.
PN1815
Our submission is in the end this company hasn't shown this Commission the respect of sending down someone who knows the position to tell the Commission frankly what it is.
PN1816
Mr Zed is not here to give this Commission any assurance as to when these employees would be put out of their misery. What you have is an acting manager who is shortly about to move on swimming against the stream of the overwhelming objective evidence trying to convince your Honour that in fact this kiln and boiler will reopen at some stage.
PN1817
In our submission the few lines that Mr Green has cobbled together in his statement should not be sufficient for this Commission to consign these employees to this fate indefinitely.
PN1818
In our submission the redundancy agreement applies and, your Honour, the company has got option in that event. The redundancy agreement requires that consultation be carried out, and they have all sorts of options under the agreement to give the employees alternative work.
PN1819
The company is obliged when the redundancy agreement applies under clause 6.1 to attempt to place any employee in an alternative position of a similar nature and of no less skill. So that is what this union has signed up to and that is what this company is committed to.
PN1820
When you have major restructuring of our organisation you need to look after your employees. They have certainly gone down an ingenious and clever route to try and avoid these obligations. We trust that your Honour can see right through it.
PN1821
The redundancy agreement imposes obligations upon the employees as well. Where the company can provide an employee with a position without loss of conditions and entitlements within the same location or within 10 kilometres a retrenchment is not to occur and the employee will not unreasonably decline an offer of such a position. So employees have an obligation in these circumstances to accept equivalent positions, and that may involve them moving around the site, moving to a nearby site, taking a different job. But this agreement is not about the boiler attendant with 26 years service being put on the grading conveyor.
PN1822
The redundancy agreement also provides for trialling of alternative positions and that is at 6.4, 6.3.1, 6.4.2, the numberings are quite interesting, and there are commitments in the agreement about wage maintenance in alternative positions.
PN1823
What we say occurs in the current circumstances, your Honour, is this 6.3.1 applies I think to all employees except Mr Back who has now been offered a position not on the Gilmore site. Sorry, that doesn't apply to Mr Costelloe either because his fork lift position that has been offered to him is at the Tumut site.
PN1824
But what has happened in this case, your Honour, is 6.3.1 applies. The company ..... redundancy has offered employment at a lower rate of pay or work of a significantly different capacity or character, and in those circumstances the employee has two months to trial the position and if they don't wish to take the position at the end of two months they are entitled to the benefits of the redundancy agreement.
PN1825
That is what this company has committed to, your Honour, and we would rather assume that when they come to this Commission seeking the Commission certify an agreement that they intend to abide by it.
PN1826
Mr Lindley expressed some views about how in the circumstances it might be better for an employee to maintain employment for some period rather than to be retrenched, and that is an understandable view, and what 6.3.1 does is give that employee an opportunity to trial the duties, see if they can physically take the job, have a think about their future in the context of performing those other duties, perhaps have a look around for other employment, perhaps have a think about their financial obligations, how they could manage if they didn't have continuing employment with the company, have a think about the impact of the deskilling upon them. So it is not in the terms of this agreement, your Honour, for the company to decide that it is better off for an employee to cop a massive pay cut and substantial deskilling and a difficult and laborious position. This agreement actually gives the employees some rights so far as that is concerned. And there is a longer trial period available for employees being required to move to a different location.
PN1827
Your Honour, in these proceedings we assert the entitlement of the employees that they are offered a position which is less pay, less skills, less favourable shift arrangements, they are entitled to turn it down, they are entitled to trial it and then turn it down.
PN1828
We submit, your Honour, that that is how you should find in this matter. Anything other would give this employer a blank cheque. Nothing about the way that they have conducted themselves in relation to this dispute makes them look as if they are entitled to it.
PN1829
Those are our submissions unless there are any questions, your Honour.
PN1830
THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Jauncey?
PN1831
MR JAUNCEY: Your Honour, this is a dispute which arises under the Weyerhaeuser Australia Tumut Region Enterprise Agreement 2004-2007. It is clear from clause 6 of that agreement that the agreement is to be read and interpreted wholly and in conjunction the with Timber and Allied Industries Award and where relevant the Metals Award although of course in accordance with the Act the agreement is to prevail to the extent of any inconsistency.
PN1832
In interpreting the redundancy provisions and the other provisions of the agreement, it is necessary to read them in conjunction with the award and to keep award obligations and rights at the back of ones mind.
PN1833
This is also made clear for instance by clause 10.8 of the agreement which refers to award requirements in the context of shift changes, and once again that makes it clear that whilst shift changes maybe implemented it must be done so in a manner consistent with the provisions of the award, but nevertheless award provisions in relation to change of shifts and to duties still have relevance and application.
PN1834
In this case the relevant provisions of the Timber Award are clause 14.2 and 14.3 and 34.6 of the Timber Award.
PN1835
THE SENIOR DEPUTY PRESIDENT: Sorry, say those again.
PN1836
MR JAUNCEY: 14.2 and 14.3 and 34.6 of the Timber Award. 14.2 provides that an employer may direct an employee to carry out such duties as are within the limited of the employees skill competence and training consistent with the classification structure of the award provided that the duties are not designed to promote deskilling.
PN1837
14.3 also says that an employer may direct an employee to carry out such duties and use such tools and equipment as maybe required provided that the employee has been properly trained in the use of such tools and equipment.
PN1838
Now, at every point along this page here the company has made it clear that proper and adequate training will be given if it is required for people to perform the alternative duties.
PN1839
Similarly, promoting a broader range of skills in our submission can partly be said to be promoting deskilling especially in circumstances where commitments have been given about people returning to their former roles.
PN1840
Similarly, clause 34.6 deals with range of shift rosters and it states that employees placed on the shift roster will not have their roster changed by the employer without 48 hours notice of such change or payment being made at time and a half rates for ordinary time worked until such 48 hours would have been expired.
PN1841
That certainly gives the ability to make changes in shift patterns, and that ability is preserved under the relevant EBA. For instance, clause 10 of annexure 3 to the EBA which deals with 12 hour shifts deals with shift changes and provides that changing shift rosters an employee's place on or off a shift will be in accordance with the award although it says that where possible a shift roster cycle should be completed prior to any such change.
PN1842
The only other provision in the EBA which restricts shift changes is clause 9.10 of the EBA which says that where an employee is requested to change shift roster during cycle that employee shall not incur loss of wages, but where the employee requests the change during the cycle the company will not be responsible for loss of wages or entitlements. There is no suggestion that the company has failed to comply with the limitation in clause 9.10. It did in fact maintain the 55 hour pay until the completion of the relevant shift cycle, and in fact has continued to do so for some extra time as well.
PN1843
So in that context we say that the agreement when read in conjunction with the award gives the company various abilities to request people to perform alternative duties or to require persons to undertake different shifts or different shift rosters provided that the relevant areas of notice are given.
PN1844
It is in that context that the redundancy agreement at annexure 1 to the agreement ought properly be interpreted. I should also say the redundancy agreement at annexure 1 not surprisingly puts considerable emphasis on all sides taking steps to seek to minimise or avert the possible termination of employment as a result of changes in the business. For instance, clause 19.1 of the redundancy agreement under the first dot point states that all sides have to meet at the ECC to discuss and employ all options to avoid redundancies or if they cannot be avoided to reduce their impact.
PN1845
There are other provisions too that show that the parties not surprisingly place a clear emphasis to try and avoid people being placed out of work as a result of termination and that all sides have obligations in order to try to avoid terminations of employment as a result of redundancy.
PN1846
Now, the first critical question which confronts the Commission is whether or not annexure 1 on its own terms applies to the present circumstances. Now, under clause 1.1 the provisions only applied where the company no wishes the job the employee has been doing done by anyone directly employed by Weyerhaeuser Tumut region and that decision leads to the termination of employment or redeployment of the employee for any of the following reasons one being a general downturn in activities brought about a decline in demand for the company's products.
PN1847
We concede that the present circumstance has been brought about due to a general down turn in activities brought about by a decline in demand, but as Ms Doust pointed out the critical issue in dispute between the parties is whether the company no longer wishes the job the employees have been doing done by anyone directly employed by Weyerhaeuser Australia.
PN1848
Mr Green's very forthright evidence at paragraphs 42 to 46 of his statement is that the company does still wish the jobs previously being done by these employees to be done in the future. He says also at paragraph 14 that while it is unclear exactly how long the temporary closure will last, Weyerhaeuser's intention is to resume normal kiln and boiler operations at the Gilmore site by January 2006 at the latest, and it is quite possible that operations would resume at an earlier date. He then explains in paragraph 42 through to 45 about the difficulties which Weyerhaeuser could experience if any of the relevant employees were to cease employment, and in particular he explains why if Mr Withers or Mr Robinson who are the boiler attendants were to cease employment it would be very difficult for Weyerhaeuser to replace those men in a short period of time, that it wouldn't be possible to simply transfer someone from the Tumut boiler over to the Gilmore boiler to take their place, and that instead it would be necessary to spend an extensive amount of time training another person to take the place of Mr Withers or Mr Robinson, and that he notes that in fact of Mr Withers or Mr Robinson were to cease employment that may then impact on Weyerhaeuser's ability to restart the kilns and boilers to return all the other employees to their normal jobs.
PN1849
In these circumstances it was never put to Mr Green that this evidence was wrong, that it was incorrect, and in these circumstances it must be accepted that the company's genuine desire is that it still wishes the jobs being done by these employees to be done again in the future and preferably by the same employees.
PN1850
It is true that no absolute definite date for a restart has been given. Mr Green's evidence, however, at paragraph 14 is that it is the company's intention to resume normal kiln and boiler operations at the Gilmore site by January 2006 at the latest, and that it is quite possible that operations would resume at an earlier date.
PN1851
The date is indeterminate in the sense that no absolute date has been given albeit that a final date has been. The intention is to reopen in January 2006 at the latest. That has been the company's consistent position. It maybe earlier, and if we can do it earlier we will.
PN1852
The union's case seems to suggest or in fact to put it very bluntly goes so far as to assert that Mr Green simply ought not be believed in his honest and forthright statement in paragraph 14.
PN1853
Throughout the evidence of the union's witnesses they maintained consistently that they just didn't believe that the company was telling the truth and that is what Ms Doust's submission really boils down to, the company isn't telling the truth when it says that. That is a very serious allegation to be made against Mr Green and it is a very serious allegation to be made against the company. It is an allegation that ought properly be made on the Brigginshaw standard. Instead, what the union puts is conjecture that because of this or because of that you can't be absolutely confident that he is telling the truth. They can't actually put anything which positively suggests that he isn't and in fact in my submission Mr Green's evidence was honest, forthright and ought to be accepted.
PN1854
He explained for instance the reasons why he thought that January was likely to be the latest date at which a reopening might occur, and he spoke about the strategies that the company was looking at in relation to different products in order to ensure that it could reopen. The fact that different products are produced at the Gilmore site then at Tumut, the fact that the company was looking at moving potentially some products from Tumut to Gilmore in order to allow for a reopening, and he also spoke about the fact that the Tumut site was likely to under a two to three week maintenance shutdown most likely in January although the final date hadn't been confirmed all of which tends strongly to support his statement of belief that the company's intention as a senior manager he says the company's intention is to reopen in January at the latest.
PN1855
Various other propositions are also put in order to support the assertion that Mr Green is lying or being untruthful in his statement. The union says, well, if he meant it they would have replaced the pump, but Mr Lindley's evidence was that the pump only takes a matter of hours to replace.
PN1856
The union puts that there has been a concerted campaign to try and doctor the story and to manipulate the situation, but their problem is that the reason why it is a consistent story is because they have been consistently saying what they believe as early as the ECC meeting on 16 June to which Ms Doust took Mr Green there is statement that one of the changes we have to make is as of the shut we will be closing the kilns and boiler operations at Gilmore for an interim period of time. Then it says this is an interim shut but we cannot tell you how long for.
PN1857
That is 16 June, the first announcement at the first ECC where it is raised and those minutes demonstrate that the company has an intention to implement an interim shutdown and for Ms Doust benefit I can certainly assure the Commission that I had not spoken to Mr Green or any other site representatives at Tumut nor any of the people who were present at that ECC meeting on or prior to 16 June.
PN1858
The company's position has remained consistent ever since. Mr Green says that on 16 or 17 June he spoke to Mr Lindley saying we are going to temporarily close the kiln and boiler at Gilmore. On 21 June, Mr Green says that he told the employees that the company had decided to temporarily close down the Gilmore kiln and boiler operation and at this point in time we are not sure how long this closure will last, but it could be for three or six months.
PN1859
Even Mr Lindley also confirms that on 21 June, Mr Green said that it would only need to be shut down for a period of time, we can't give an accurate estimate of how long for, but it will only be temporary, and in all subsequent correspondence and discussions the company has consistently maintained that it is a temporary shutdown and the union asks you to simply discard that evidence and to conclude instead that the company is being dishonest and that it has tailored and manipulated its story. That is a very serious allegation and in my submission it simply can't be made out.
PN1860
The highest that the evidence to the contrary goes is an assertion by the relevant employees that on 21 June, Mr Green made a statement that when asked how long will the shut down be he is alleged to have said it would be three or six months or it may never start again. Your Honour, it is true that all four employees make that statement. In fact they do so in almost identical words between each statement and to be frank that is a cause for concern.
PN1861
When one looks at the statements of the four employees it is clear that large slabs of the statements are lifted paragraph for paragraph, word for word from one statement to the next. I shan't point out all the similarities, but I think it is sufficient to say that if this were in Media Watch where they put up the plagiarism and read it word for word there are large parts of these statements which would fail that test, word for word.
PN1862
What do the employees say about that? Well, Mr Withers says at paragraph 248 that he wrote out his statement. Paragraphs 249 to 250 he says that his statement is all in his words as expressed. Paragraph 253 he denied discussing his evidence with others, and at paragraph 255 of the transcript he says that it must be pure coincidence.
PN1863
Mr Robinson, in paragraph 454 of the transcript, says that he typed his statement and emailed it. At paragraph 458 he says that it is all in his own words. At paragraph 460 when asked whether the person who prepared that statement modified his statement or is it basically your words as typed he says all my words. At paragraph 461 he again says, well, it must be coincidence if they are word for word. Paragraph 509 he again asserts that it is coincidence. At paragraph 624 to 625 of the transcript your Honour asks Mr Robinson whether he showed Mr Withers a copy of the statement and he denies it, and your Honour asks whether someone suggested to him to follow a format to follow in preparing his statement, and again he denies it.
PN1864
Mr Costelloe, at paragraph 794 of transcript says that he handwrote his statement. At paragraph 795 he says that Ms Gail Robinson typed it. At paragraph 797 he says that once typed there were no significant changes relative to his handwritten version, and in paragraph 799 he is asked are these the words that you handwrote and he says they are. At paragraph 06 he is asked, "Mrs Robinson didn't cut and paste anything into your statement at all, is that all what you handwrote subject to maybe a little typo here and there" and he says, "That's correct".
PN1865
When Mr Back turns up as the final witness he gives the game away, and instead of being pure coincidence, word for word, Mr Back says that Mrs Robinson took his statement and his notes and incorporated them into something which reads like this even although his notes would not have had some of the particular words, and at paragraph 937 he is asked:
PN1866
So you have discussed with them what is in your statements and your evidence?---Yes.
PN1867
Have you had any discussions with the other employees about the statements?
---Yes.
PN1868
Have you seen their statements?---No, well, I have only talked about them like between each other
PN1869
and when asked:
PN1870
In talking about them, did you agree that what you were saying was the same or did you compare to see what you were saying was the same?
PN1871
and he says, "Yes".
PN1872
In those circumstances, your Honour, the coincidence in the words attributed to Mr Green on 21 June must be taken with a high degree of suspicion, and that is all there is to suggest that Mr Green is lying, and on those uncertain sands they found the whole edifice of their argument.
PN1873
In those circumstances, your Honour, we say that the only proper conclusion is that the company wishes to retain each one of these four employees in employment. It is sincere and truthful when it says that the Gilmore kiln and boiler operations will restart by early January 2006 at the latest and possibly earlier, and it is sincere and truthful when it says that it still wishes the jobs previously being performed by the employees to be done by someone in its employ into the future. We say that in those circumstances the provisions of annexure 1 to the agreement simply are not activated.
PN1874
In case your Honour is for any reason against us on that, however, we do go further. We say that the relevant provision here is clause 6.2. The union has referred to 6.3.1 which I think should really be numbered 6.4.1. I think that it is common ground that 6.4.2 is not activated. That deals with alternative employment which requires the employee to relocate their place of residence which certainly has not occurred here, and I think in Mr Miller's evidence at paragraph 76 of the transcript he conceded that the union now accepts as a result of previous disputation that given the 4 kilometre difference between the Tumut and the Gilmore site it ought not properly be treated as a different location for the purposes of the EBA.
PN1875
Under clause 6.2, that deals with a circumstance where the company is able to place an employee in a position without loss of conditions and entitlements within the same location or an acceptable nearby location that is of a similar capacity or character and it says that the employee will not unreasonably decline such an offer that if the employee accepts then retrenchment will not occur, but if the employee does decline then issues including the reasonableness of the reasons for declining the offer may be dealt with by a disputes procedure in the EBA.
PN1876
The company says that it has met those requirements for all four employees, and I shall deal with them in two groups. Firstly, I might deal with Mr Costelloe and Mr Back. They are both employed as kiln attendants and Mr Costelloe has been offered alternative work doing green mill forklift driving, and Mr Back has been offered alternative work doing inter site transfer work.
PN1877
We say that that work is within the same location or an acceptable nearby location given the difference of 4 kilometres between the sites and given Mr Miller's concession.
PN1878
We say that it is without loss of conditions and entitlements. At all times both Mr Back and Mr Costelloe have been entitled to the benefits of the EBA. Their wage rate has not been reduced. The only change which has impacted upon their remuneration is a change in shift patterns and therefore the shift loadings which are payable to them as a result of their work. The fact is that shift loadings are paid to compensate for the disability inherent in working certain anti-social hours at nights, weekends and so on and so forth, and the fact that a 12 hour, 7 day rotating swing shift imposes significantly disabilities on employees is the very reason why it attracts the loadings under the EBA which it does.
PN1879
Your Honour, I would just like if possible to provide a judgment of Magistrate Dillon in relation to the matter of Marki and Dexion. This is a case where a company had a day and an afternoon shift. It decided to discontinue the afternoon shift and move all employees onto a day shift. There were some voluntary redundancies offered. Mr Marki applied for one and did not get it. He subsequently ceased work maintaining the change in shift amounted to a redundancy in and of itself. His claim was rejected and on page 5 in paragraph 4 of the conclusions about half way through that paragraph the Magistrate concludes that in short one cannot deduce merely from the fact that a person's time - - -
PN1880
THE SENIOR DEPUTY PRESIDENT: Sorry, which paragraph on that page?
PN1881
MR JAUNCEY: It is page 5, the fourth paragraph under the heading conclusions about half to two thirds of the way through that paragraph.
PN1882
THE SENIOR DEPUTY PRESIDENT: The sentence beginning, "In short".
PN1883
MR JAUNCEY: In short, one cannot deduce merely from the fact that a person's time of starting and finishing work has altered that he or she was made redundant by his or her employer. The absurdity of such a proposition does not I think need to be spelled out.
PN1884
So there is no reduction to wages despite all Ms Doust's attempt to categorise it as such. The wage rate has been maintained without alteration at any time. The only thing that has changed or has had an impact on remuneration is the fact that different shift loadings are now being paid for working a different shift pattern and a less anti-social one, and for that reason we say that there has been no loss of conditions or entitlements.
PN1885
The final criteria for clause 6.2 is that the work must be of a similar capacity and character. Mr Costelloe conceded at paragraph 830 of transcript that 80 to 90 per cent of his work in the kiln attendant role involved forklift driving. Mr Back, at paragraph 958 to 961 said that it was somewhat lower probably about 60 per cent. Mr Lindley has estimated it at 90 per cent as well. So both of these employees in doing forklift work have got a forklift ticket, they have got forklift skills, they are doing work which is in many ways very similar to the vast bulk of the work previously performed. Mr Costelloe had previously done forklift work during the February/March shutdown without complaint as had Mr Back. Mr Costelloe at paragraph 813 of transcript said that he had no problems with the job role as green mill forklift driver per se. His issue was simply about whether or not he could continue to get the 55 hour pay. Similarly, at paragraph 834 of transcript, Mr Costelloe agreed that he had no problems doing the job role as a green mill forklift driver if he could keep the conditions, and at paragraph 836 conceded that the work itself would be acceptable so long as he was paid and remunerated on the 55 hour a week basis, and indeed at paragraph 880 went so far as to agree that he would be prepared to leave the issue of the appropriate remuneration in the hands of the Commission.
PN1886
Mr Back's evidence was - - -
PN1887
THE SENIOR DEPUTY PRESIDENT: Just before you go onto Mr Back's evidence you like me will be aware of the time.
PN1888
MR JAUNCEY: I am sorry, your Honour, I hadn't been looking.
PN1889
THE SENIOR DEPUTY PRESIDENT: Well, I will be happy to sit on, but I do need to let you know that I need to leave at 4.30 in order to catch a plane.
PN1890
MR JAUNCEY: I shall do my best to finish by then.
PN1891
THE SENIOR DEPUTY PRESIDENT: Well, I am not suggesting you need to because obviously Ms Doust has the right of reply and so I mention now we have that issue with timing and both of you might want to think about how do we conclude the proceedings.
PN1892
MR JAUNCEY: I shall be as prompt as I can. Mr Back's evidence was not dissimilar. He agreed that he had been prepared to do the inter site transfer work in the February/March shutdown. At paragraph 968 he agreed with the suggestion that just looking at the duties alone and leaving aside the pay and the hours he had no real issues with doing forklift duties per se. He also conceded at paragraph 963 that doing forklift duties in the context of his normal role was not something that he regarded as demeaning, and his issues seemed to boil down to the hours and the pay. When we looked at the hours with Mr Back he conceded that working a day afternoon shift had certain advantages. For instance, at paragraph 990 he conceded that it meant that he had all his weekends free rather than only half his weekends.
PN1893
At paragraphs 987 and 992 he conceded that that meant that he had a greater opportunity to participate in weekend sport with his son or with watching his son play weekend sport. He also conceded at paragraph 976 that working day shift under the nine and a half hour roster meant that he was four hours earlier in the afternoon and was effectively home at 3.30 in the afternoon rather than 7.30. He conceded that that meant that he had a greater capacity to cook dinner and do chores relative to the position when he was doing a 12 hour day shift and that was at paragraph 978. He conceded that on the evening shift he would be home earlier generally by about 11.30 rather than having to work through the night that was paragraph 972. He agreed that that meant that he could be up earlier in the morning and it gave him 45 hours in the middle of the day to do vacuuming, washing up and chopping wood which was time that was not available if he had to do a 12 hour night shift and then sleep, and that was at paragraph 974 and he also conceded that working the afternoon shift meant that he was able to get much more sleep then when doing 12 hour night shifts. After looking at the issues of the hours, Mr Back also agreed with the proposition that he would be quite prepared to do the alternative duties on the alternate roster if he was paid at the 55 hour rate and that was at paragraph 1000.
PN1894
The only real difference between his evidence and Mr Costelloe was that whereas Mr Costelloe was prepared to accept the Commission's ruling on an appropriate period for make up pay, Mr Back, with some encouragement from those sitting in the bleachers put the view that he was only prepared to do it - - -
PN1895
THE SENIOR DEPUTY PRESIDENT: I think the bleachers was my word, was it not?
PN1896
MR JAUNCEY: I think that is right, your Honour. He put the view that he would only accept it if it went his way. The result of that evidence is that we say it is a position at an acceptable nearby location, the work is of a similar capacity and character as the previous work, it is being done without loss of conditions in the sense that the EBA still applies in full force, and no one's wage rate is being lowered, and there appears to be no other reason for declining the position once these two employees have conceded that the new shift patter whilst it brings with it certain disadvantages also brings with it certain advantages. In those circumstances, we say that even if the redundancy agreement applies there is no proper reason under clause 6.2 for the work to be rejected.
PN1897
Once again though we put one further proposition. If for any reason the Commission is against us on both the issue of the application of the agreement and the reasonableness of the alternative work in the context of clause 6.2 for Mr Costelloe and Mr Back, and if the Commission were to form the view that in order to make the offers reasonable the company ought to make payment at the higher rate for a period of time whether up until the restart or some shorter period, then that is something which the company would accept and abide by, but certainly we would say that there is no call at all for requiring the company to implement a redundancy in circumstances where Mr Costelloe and Mr Back themselves have agreed that the alternative work on the alternative shift pattern is acceptable they would just like to have their remuneration topped up, and certainly redundancy in those circumstances would be no benefit to either the company or most likely to the employees themselves.
PN1898
Your Honour, I am conscious of the time, instead of launching into my final submissions on Mr Withers and Mr Robinson it maybe best to look at how we go forward from here.
PN1899
THE SENIOR DEPUTY PRESIDENT: That is what I was going to suggest. Thinking about it there is really two options, isn't there? Presumably, you want to do the same in relation to Mr Withers and Mr Robinson's evidence as you have just done with the other two, I am wondering whether that maybe done in writing and Ms Doust have the opportunity of making any reply that she wants to make in writing, or alternatively the other option would be to finish the oral submissions on, my apologies, the next available day is 1 September if I recall. It is indeed. There are a couple of generic options that spring to mind, but I have been happy to sit on because I knew that if we didn't complete today, we were in strife.
PN1900
MR JAUNCEY: Your Honour, Ms Doust has informed me she is not available on 1 September so we might have to do it in writing. What I can certainly say is I suspect that I would be no longer than another 15 minutes in oral submissions but I don't know how long Ms Doust would be. I am not sure whether there is half an hour or three quarters of an hour that your Honour could spare. Alternatively, conscious of the need to get this done quickly, I could the remaining parts of the submissions in writing I would hope by the end of the day tomorrow, but one possibility if I could give myself until the morning on Wednesday which means that I can at least stay back tomorrow evening and knock them over if need be, and then I am not sure how long Ms Doust would need, but I suspect that my remaining submissions from here would be quite short, so she may well be in a position to start preparing any reply to the vast bulk of what I have already said.
PN1901
THE SENIOR DEPUTY PRESIDENT: Relevant to anything you might want to say is the fact that part of the difficulty is that before 1 September the only day apart from the weekend that I am going to be in Sydney is 30 August when Mr Jauncey I have the pleasure of your company on another matter that has had to be reprogrammed on that day, and then I indicate to the parties that I will be overseas from 5 September until the end of the month, and then travelling on other business for the first week of October.
PN1902
MS DOUST: Your Honour, I don't have a day in the week commencing the 29th.
PN1903
THE SENIOR DEPUTY PRESIDENT: Yes, I think that was our discussion last time.
PN1904
MS DOUST: Yes, I actually have things on in various locations every day this week, unfortunately, so unless your Honour has some unusual time of an hour at some point in the afternoon on one of those days I would have some difficulty so it may come down to writing.
PN1905
THE SENIOR DEPUTY PRESIDENT: Apart from the 30th before 1 September, I am not going to be in Sydney.
PN1906
MR JAUNCEY: If I get my stuff to you by Wednesday morning, then you get your stuff in by the end of the week and that then means that his Honour at least has a week before he goes.
PN1907
MS DOUST: I trust your Honour heard that.
PN1908
THE SENIOR DEPUTY PRESIDENT: I did.
PN1909
MS DOUST: ..... Wednesday morning, and I will be finished by the end of the week.
PN1910
THE SENIOR DEPUTY PRESIDENT: Mr Jauncey articulates one of the things that has been on my mind. It has certainly been my hope that this matter would be dealt with before I go overseas and that has been my intention all the way so whether that of course will turn out to be the case is another matter, but certainly I would encourage you to work to a timetable that gives that a chance. So Mr Jauncey's suggestion is that you complete your submissions in writing by Wednesday morning.
PN1911
MR JAUNCEY: Early Wednesday morning.
PN1912
THE SENIOR DEPUTY PRESIDENT: And Ms Doust by the end of Friday.
PN1913
MS DOUST: Yes.
PN1914
THE SENIOR DEPUTY PRESIDENT: Why don't we proceed on that basis I think in all the circumstances that is the most reasonable, and on that basis I thank you for your assistance and the Commission will adjourn.
<ADJOURNED INDEFINITELY [4.35PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
CLAYTON KYE LINDLEY, SWORN PN1042
EXAMINATION-IN-CHIEF BY MR JAUNCEY PN1042
EXHIBIT #R4 STATEMENT OF CLAYTON KEY LINDLEY PN1046
CROSS-EXAMINATION BY MS DOUST PN1053
THE WITNESS WITHDREW PN1222
WARREN MATTHEW GREEN, SWORN PN1223
EXAMINATION-IN-CHIEF BY MR JAUNCEY PN1223
EXHIBIT #R5 STATEMENT OF WARREN MATTHEW GREEN PN1233
EXHIBIT #R6 COPY OF DIARY NOTE DATED 19/06/2005 PN1240
CROSS-EXAMINATION BY MS DOUST PN1249
EXHIBIT #A7 MEMO DATED 09/02/2005 PN1359
RE-EXAMINATION BY MR JAUNCEY PN1735
THE WITNESS WITHDREW PN1739
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