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Australian Industrial Relations Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 12640-1
SENIOR DEPUTY PRESIDENT ACTON
C2005/4146
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
AND
FLEETWOOD PORTABLES PTY LTD T/AS RAINBOW TRANSPORTABLE HOMES
s.170LW - Application for settlement of dispute (certification of agreement)
(C2005/4146)
MELBOURNE
10.02AM, MONDAY, 29 AUGUST 2005
PN1
THE SENIOR DEPUTY PRESIDENT: Can I have the appearances, please?
PN2
MR M ADDISON: It’s our application, your Honour. I appear on behalf of the Australian Manufacturing Workers Union, together with Mr L MALGERI and Mr M TYLER, if the Commission pleases.
PN3
MR D FELDMAN: Your Honour, I appear with Mr D ALLEN, the CEO of Fleetwood Portables, Rainbow Transportable Homes, and Mr H MCPHERSON, industrial consultant.
PN4
THE SENIOR DEPUTY PRESIDENT: Right. You’re curiously perched on the edge of the bar table.
PN5
MR FELDMAN: I might fall off.
THE SENIOR DEPUTY PRESIDENT: I have received in respect of this matter an outline of submissions from the AMWU and also a witness statement of Marcus Taylor.
EXHIBIT #AMWU1 OUTLINE OF SUBMISSIONS BY AMWU
THE SENIOR DEPUTY PRESIDENT: I have also received an outline of submissions from the company and a witness statement of Derek Allen.
EXHIBIT #R1 OUTLINE OF SUBMISSIONS OF FLEETWOOD PORTABLES T/AS RAINBOW TRANSPORTABLE HOMES
PN8
THE SENIOR DEPUTY PRESIDENT: Is that all the documentation I should have received?
PN9
MR FELDMAN: I believe so, your Honour, yes.
PN10
THE SENIOR DEPUTY PRESIDENT: I can indicate to the parties that I have read all that documentation. Mr Addison?
MR ADDISON: Yes, thanks, your Honour. Your Honour, I would obviously start by calling Marcus Taylor.
<MARCUS JAMES TAYLOR, SWORN [10.04AM]
<EXAMINATION-IN-CHIEF BY MR ADDISON
PN12
MR ADDISON: Thanks, Marcus. Could you repeat your full name and address just for the transcript, please?---Sorry, the - - -
PN13
Sorry, my voice isn’t the best today?---Sure.
PN14
Could you repeat your full name and address just for the transcript?---Yes, Marcus James Taylor (address supplied).
PN15
Have you prepared a witness statement with regard to this matter before the Commission this morning?---Yes, I have.
PN16
Have you got that with you in the box there?---Yes.
PN17
Can I ask you just to have a look at it and do you want to make any changes to the witness statement at all?---No, I’m happy with it.
PN18
Is it true and correct to the best of your recollection?---Yes, it is.
If I might seek to tender that, your Honour.
EXHIBIT #AMWU2 WITNESS STATEMENT OF MARCUS JAMES TAYLOR
PN20
MR ADDISON: Now, Marcus, you say in the witness statement that you’re the AMWU delegate on the site?---Yes, that’s correct.
**** MARCUS JAMES TAYLOR XN MR ADDISON
PN21
How long have you been the AMWU delegate there?---Approximately 5 months, 5 or 6 months.
PN22
You refer in the fourth paragraph about how the consultative committee was arrived at. Have you seen the witness statement of Mr Allen in this matter?---Yes. Briefly, yes.
PN23
I don’t have a copy to give you, Marcus, but in paragraph 25 Mr Allen says that your recollection is incorrect in terms of how the consultative committee was arrived at?---Right.
PN24
Do you agree with Mr Allen on that?---No, I totally disagree with that.
PN25
Do you reaffirm your position in your witness statement?---Yes, that’s correct.
PN26
Mr Allen also says that when the company sought to appoint people on AWAs the AMWU did not complain; do you agree with that?---No, I don’t. I actually spoke with the works manager, Darren Morris.
PN27
Can I show you a document. Can you just tell us what the document is that I have just handed you, Marcus?---Yes, that’s a copy of a letter in reference to the consultative committee. Well, a complaint, if you like, for and on behalf of the shop stewards.
PN28
When did you send that to the company?---I’ll just have a quick look at that. That was sent after the committee was formed and the stewards weren’t happy with the way management went about forming that committee.
PN29
Who did you send this to?---Derek Allen.
**** MARCUS JAMES TAYLOR XN MR ADDISON
PN30
Your Honour, I seek to have that marked.
EXHIBIT #AMWU3 LETTER OF COMPLAINT FOR AND ON BEHALF OF SHOP STEWARDS RE CONSULTATIVE COMMITTEE
PN31
MR ADDISON: Did you get a response to this document at all from the company?---I’m just trying to remember. I don’t believe so. There was a document sent out that related to part of this because it had a lot to do with the overtime roster. The two coincided. I think you’ll find there’s a copy to the right of you there.
PN32
Sorry?---I think you’ll find there’s a copy of some sort of response.
PN33
I don’t have it?---Amongst my stuff there.
PN34
So there was a response?---Yes, there was a response.
PN35
Do you recall what the response was?---Well, the response was basically that they had formed their consultative committee. The way they believed they formed it was by a ballot involving all employees on the site which were predominantly AWA contracted employees.
PN36
Right. Was that the case at that point in time, was there more AWA people than certified agreement people?---Yes. Yes.
PN37
Now, were you involved in the negotiations for the certified agreement?---Yes.
PN38
And the certified agreement at clause 31 sets out the process for the consultative committee and in clause 31 - I think that’s attached the letter that you sent. It is. It’s on the third page. When that was arrived at - were you part of the negotiating committee?---Yes, that’s correct. Yes, I was a shop steward.
PN39
What was the intention o the negotiators, at least from your perspective, as to what the consultative committee was to do?---It was basically to interact between management and the factory floor on issues affecting the company.
PN40
Right. Was that to include employees who were covered by AWAs?---No. Only those covered under the certified Agreement?---No.
PN41
Did the company have their view with regard to employees employed by under AWAs and whether they should or should not be part of the agreement?---Yes, the company believed that the consultative committee should be - the agreement should cover everybody involved at the site.
**** MARCUS JAMES TAYLOR XN MR ADDISON
PN42
You’re sure about that? Can I take you to your document gain and take you to clause 4 of the agreement, which is on the second page of your document. Clause 4 of the agreement as written there and you’ll see you have highlighted the - - -
PN43
MR FELDMAN: Your Honour, I must object. I believe Mr Addison is trying to lead the witness and he should be - - -
PN44
THE WITNESS: I wouldn’t mind hearing the question again actually.
PN45
THE SENIOR DEPUTY PRESIDENT: Just hang on a second.
PN46
MR FELDMAN: I believe the witness did in fact answer the question and this is examination-in-chief and I believe Mr Addison is in fact trying to now lead the witness to give a different answer.
PN47
MR ADDISON: It’s not leading to simply take a person to a reference in a document, your Honour, and I’m simply taking the witness to a reference in the document which has been properly tendered. I don’t seek to lead the witness. I have heard the witness’s answer. He may have a different view once he looks at the document and, in my submission, it’s perfectly proper to take a witness to a document that’s been properly tendered.
PN48
THE SENIOR DEPUTY PRESIDENT: Yes. I’ll allow the question.
PN49
MR ADDISON: Thank you, your Honour.
PN50
If I can take you to the second page of the document that’s marked A3 which is your letter to the company and you will see there there’s extracts of the agreement. If I take you down to clause 4 - got it?---Sorry, are we referring to my statement or the actual consultative committee - - -
PN51
No, no, sorry, I’m confusing you. The document that you sent A3, which is the letter effectively?---Okay.
PN52
Signed by yourself and Stuart Eaden?---Right.
PN53
Can I take you to the second page of that?---Okay, yes.
PN54
There’s an extract from the agreement there and clause 4 is extracted - - -?
---Right. Okay.
**** MARCUS JAMES TAYLOR XN MR ADDISON
PN55
- - - on the second page. Can I ask you to have a look at that and give me any comments you might want to give with regard to the negotiations particularly with 4.1(b)?---Okay. Yes, well, basically - yes, basically that the parties bound by the certified agreement obviously does not apply to any employee who is engaged under an Australian workplace agreement.
PN56
Can I ask who wanted that clause in, please? Was it the union or the company that wanted that clause there? If you can’t remember it’s okay. Just say you can’t remember?---Yes, I can’t remember.
PN57
You can’t remember? That’s okay. Can I ask if the witness can be shown a copy of Mr Allen’s witness statement? Can I ask you to go to Derek Allen’s - or go to the attachment of Mr Allen’s witness statement, and it’s attachment number 3 that I want you to go to. You’ll find some outlines of submissions at the beginning and then you’ll find the witness statement of Mr Allen and then if I can take you to DA3, so there’s five pages of outline of submissions and there’s Mr Allen’s statement which goes to 31 paragraphs. And then there’s some exhibits, DA1, then DA2 and DA3 - and DA3 a series of minutes. Have you got that? Keep going. You’ll find it eventually, Marcus?---DA2. Right, okay, yes, the minutes.
PN58
Go over the page and you’ll find the minutes. DA3 suggests that a consultative committee met at 2.30 on Monday, 21 June of this year, and consultative committee was Gary Trimble, Brett Stanford, James Shepley, Stuart Eaden, Graham Tiernan, Darren Newell, Derek Allen and Darren Morris. Do you know all of those people?---Yes, I do, yes.
PN59
Who among them is covered by the certified agreement?---Gary Trimble, who is also a company supervisor.
PN60
He is covered by the certified agreement or by AWAs?---Sorry. No, AWAs.
PN61
Okay. Tell me who is covered by the certified agreement?---Sorry, certified agreement. Yes. The only person there would have been Stuart Eaden.
PN62
And can you tell me who are the management representatives there?---Sorry, Gary Trimble.
PN63
He’s management?---He’s a supervisor, yes.
PN64
Okay. Anybody else?---Brett Stanford, AWA, he’s a - supervises the contract labour on site.
PN65
So he’s a supervisor too, yes?---James Shepley, I believe his name is. He’s a leading hand in the welding section, AWA.
**** MARCUS JAMES TAYLOR XN MR ADDISON
PN66
Yes?---Graham Tiernan.
PN67
Is?---He’s a storeman, as it states there.
PN68
So he’s not management?---He’s not management, no.
PN69
Management I was asking. What about Darren Newell?---I don’t know if he’s a manager as such. He does installations but he’s - - -
PN70
Okay. What about Derek Allen?---The CEO of the company.
PN71
So he’s the manager, yes. And Darren Morris?---The works manager.
PN72
So he’s a manager too. So he’s management too. Now, can I just take you to the second paragraph under those names? You say - it says:
PN73
It was explained to everyone that the certified agreement which some employees are employed under required the company to form a consultative committee.
PN74
Were you at that meeting? You weren’t, were you?---No, not at the - not their proposed meeting, no.
PN75
Had you been elected by the employees to be on a consultative committee?---Well, it was - well, I had been elected by those covered under the certified agreement, yes.
PN76
And you weren’t invited to this meeting?---No.
**** MARCUS JAMES TAYLOR XN MR ADDISON
PN77
I have nothing further, your Honour.
THE SENIOR DEPUTY PRESIDENT: Mr Feldman?
<CROSS-EXAMINATION BY MR FELDMAN [10.19AM]
PN79
MR FELDMAN: Mr Taylor, could you outline in your words what your view of the purpose of a consultative committee is?---To work as a means of communication between management and the factory floor as to issues affecting the business of the company and employees.
PN80
What sort of issues?---Overtime, so the overtime roster, for example.
PN81
Yes. And what are some of the other issues that a consultative committee might also deal with?---Could be some health and safety issues, could be renovations going on, like, for example, there’s a new coffee room being built. You know, things like that. Keeping the employees up to date with what’s going on. Issues of contract labour on site.
PN82
Mr Addison when he was asking you some questions took you to some minutes of the consultative committee meeting that took place on 21 June?---Right.
PN83
Are the sorts of issues - have you had a chance to read through those minutes briefly?---No.
PN84
Well, some of the issues identified were, for example, site conditions, storage of materials, tools, forklifts, recycling, site cleanliness, are they the sorts of issues that in your view are appropriate to be dealt with by a consultative committee?---I suppose a lot of them are health - housekeeping and health and safety related and I’d say yes.
PN85
Do you think those sorts of issues really do apply to everybody on the factory floor, that they’re relevant, that they affect the way that people work, so they do apply to everybody on the factory floor?---Yes. Yes. Some issues would, yes.
PN86
In your view, is it reasonable to take into account the views of all employees or to have a mechanism that takes into account the views of all employees involved in that sort of work?---Yes, to a certain extent. I think everybody should be informed, yes, I do.
PN87
So, isn’t it reasonable that a consultative committee does in fact - is open to everybody involved and not just based on whether they’re engaged under an AWA or certified agreement?---It may be reasonable but in a situation on our site, you know, management weren’t even aware of a so-called consultative committee and hadn’t brought one in until the union got involved. The unions got involved and those covered under the certified agreement are parties to that agreement and are parties to the consultative committee.
**** MARCUS JAMES TAYLOR XXN MR FELDMAN
PN88
Well, that’s a different issue that the Commissioner will talk about - will think about in terms of the interpretation. But taking into account the actual wording of that certified agreement that you were involved in - you were involved in negotiating that?---Yes.
PN89
If I could talk about the departments in the actual business of Rainbow Transportable Homes, what departments are there?---Well, we have got the framing section, the construction - so there’s framing, cladding, welding, fixing, finishing - I’ll refer to my notes on that.
PN90
On the consultative committee minutes, the various areas there that you have in front of you - - -?---Right.
PN91
Are they the - would you say that they are accurate in terms of the different departments of the business? I might run through them and you can agree with me, either say yes or no?---Do you want to refer to the page for me so I can find it?
PN92
I might read them; that might even be easier. Is there cabin production?
PN93
THE SENIOR DEPUTY PRESIDENT: Mr Feldman, it’s probably easier if you actually take him to the page so that he can see it.
PN94
THE WITNESS: Yes, it would help.
PN95
MR FELDMAN: Okay. Well, in that case - - -
PN96
THE SENIOR DEPUTY PRESIDENT: It’s appendix 3. It’s DA3. Have you got that of the statement of Mr Allen?
PN97
MR FELDMAN: Yes. In fact, I’ll take you a few pages before. That might be easier - - -
PN98
THE SENIOR DEPUTY PRESIDENT: Yes.
PN99
MR FELDMAN: - - - to DA1. It’s headed, “Notice to all employees”. Have you got a copy of that document, Mr Taylor?---Yes.
PN100
Would you agree that there is a cabinet production factory in the business?---Yes.
PN101
And that there’s a home manufacturing area?---Yes.
**** MARCUS JAMES TAYLOR XXN MR FELDMAN
PN102
And there’s a chassis manufacturing area?---Mm mm.
PN103
And a cabinet manufacturing timber processing area?---Yes.
PN104
There’s a stores and material handling area?---Yes.
PN105
And there’s an installations department?---Yes.
PN106
So each of those six areas is a separate department of the business?---You can look at it - you know, in a broad sense, yes, but to break it down properly you - the actual departments are framing, finishing, cladding and then - like I said before, and then, yes, you do have your home manufacturing which is on a separate side of the site and chassis manufacturer.
PN107
So we might - you might call broadly different things but they’re generally reflective of the different departments of the business?---Well, I think it’s a little inaccurate because I think that’s a bit of a broad - that’s more or less saying there’s a factory there and a factory here and a factory there, whereas my interpretation is that’s departments within the factory.
PN108
Okay. Now, in terms of the actual notice that I think is described as AMWU3, what date did you actually send that to Mr Allen?---Look, I couldn’t tell you the date.
PN109
Would you remember if it was before or after the first meeting of the consultative committee?---It was after. It was after. The reason being that management didn’t consult with the union regarding the formation of the consultative committee so that was my response to that.
PN110
Well, was there a meeting to discuss the consultative committee? Do you recall when that took place?---I couldn’t recall a date for that, no.
PN111
After the agreement was certified, and I believe it was certified on 20 April, I believe there was a meeting that you participating in together with a Mr Lou Malgeri of - an organiser with your union and Derek Allen, the CEO of Rainbow Homes, and one of the matters discussed in that meeting was the establishment of a consultative committee. Do you recall being part of that meeting?---Is this a meeting in his office you’re referring to?
PN112
Yes?---Yes, I do. Yes.
PN113
Do you recall that in the context of discussions about the consultative committee that Mr Allen made comments about that could be part of the healing process in bringing employees together?---Yes.
**** MARCUS JAMES TAYLOR XXN MR FELDMAN
PN114
You do. And as part of a healing process that would suggest that it could involve employees who were both AWA covered and covered by the certified agreement?---That may have been mentioned. I also recall Mr Allen stating that both the stewards from the union would be involved in that consultative committee, the reason being we have been elected by the employees covered by the certified agreement.
PN115
Was anything finalised that day or was it just a discussion that it would be a good idea to set up a consultative committee?---Well, it was a discussion but it led the stewards to believe that they would be part of the consultative committee.
PN116
After that meeting took place some weeks later a notice to all employees - and I’ll take you to DA1 of Mr Allen’s statement?---Right.
PN117
Do you recall that being distributed at the workplace?---Yes, yes.
PN118
And do you recall receiving a copy of that?---Yes.
PN119
Would that have been approximately at the end of May?---Look, I couldn’t tell you off the top of my head.
PN120
But it was after that meeting that took place in Mr Allen’s office discussing the establishment of a consultative committee?---I recall that this is - this would have happened well after that, yes.
PN121
Are you - sorry?---Well, I just - I recall - I do recall this and I recall discussing with Mr Stuart Eaden, the other shop steward, that management were going more or less behind our back and, you know, conducting these - this ballot for a proposed consultative committee without interacting with the union at any point.
PN122
You didn’t raise anything with Mr Allen or the company at that meeting?---Not with Mr Allen personally. I did - I went - at the time I spoke with Derek - sorry, Darren Morris, the works manager and I made him aware that I was disappointed with the way the company went about forming the consultative committee and that I believed that both myself and Stuart Eaden being shop stewards elected by the parties to the certified agreement should be included as part of the consultative committee and that’s - at that point is when I presented him with this document in reference to the consultative committee which stated that he’d formed it - it was invalid.
PN123
Mr Taylor, I think you said that you presented that memo after the first consultative meeting took place, so I’d just like to clarify exactly when you mentioned to - - -?---Yes. No, I don’t recall - - -
**** MARCUS JAMES TAYLOR XXN MR FELDMAN
PN124
You mentioned to Mr Morris your concerns after the first consultative committee meeting took place, not when the notice was - - -?---Well, I didn’t recall giving a date. I just recall giving this - a copy of this to - sorry, no, it wasn’t - it was a verbal. I spoke with Darren Morris in his office originally and then I followed up with this.
PN125
Right. And that was after the first consultative committee meeting took place?
---I’m - I can’t - I’m not sure about that. It’s possible but I don’t know the actual date that I
- obviously I - yes, I can’t remember the date. You’re right.
PN126
Is there any reason you didn’t raise these matters in your written statement that you have provided to the Commission on this matter?---Sorry, you mean with the - like, in relation to this document?
PN127
Yes, and in relation to your conversation with Mr Morris?---No, I brought it to the attention of the other shop steward and my union organiser.
PN128
I have asked you why you didn’t put that in your witness statement that you have given to the Commission in relation to this matter?---Because it was already presented the last time we were here at the Commission.
PN129
I see. Now, you mentioned that you expected to be on the consultative committee. Is there any reason why you didn’t seek to actually have yourself nominated as part of that process?---Well - - -
PN130
Again, looking at the form DA that you have acknowledged that you received?---Yes, because we - we believed that it wasn’t conducted the right way so based on that I believe that it wasn’t valid, so I wasn’t going to be involved in any way because the way that the company went about it was incorrect. They later then approached the other shop steward, Stuart Eaden, and coerced him into becoming part of the consultative committee.
**** MARCUS JAMES TAYLOR XXN MR FELDMAN
PN131
How do you say they coerced him?---Well, they told him - he wasn’t elected or anything like that. But he was then approached by Derek Allen on the factory floor and asked to run for the consultative committee.
PN132
And how do you say that’s coercion?---Well, because basically he had all AWAs people involved on that consultative committee and he - I guess he felt to try and pretty it up a bit and make it look good on paper, he involved one of the union shop stewards in being part of that committee.
PN133
You have said before you had a discussion with him where you expressed concern about its structure and that’s why you didn’t wish to participate. So why would Mr Eaden then voluntarily go along to that and be part of that consultative committee if that was the case?---Well, Stuart fel that at least - he wasn’t happy with the way they went about it either but he thought, well, it would probably be a good idea to at least have some union involvement on that committee.
PN134
Are you aware of whether Mr Stuart Eaden, the other AMWU shop steward expressed any concern either at that meeting or beforehand about its constitution?---Yes, he was very well aware and he agreed with me.
PN135
No, no, did he express any concern to the company about it?---I can’t speak for Stuart Eaden.
PN136
Okay. And you didn’t express any concern prior to the first meeting either, to the company?---That could be possible. I know I expressed disappointment with the way the company went about it with Darren Morris. That may have been after the first meeting. I can’t recall the date but, yes.
PN137
Do you think in retrospect it may have been better if yourself or some of - some other employees actually chose to nominate and if an election needed to be held then the consultative committee could be appointed?---No, I still stand by the fact that the reason I didn’t nominate for it was because it - the company didn’t go about it the right way in the sense that those employees that are part of this committee they formed weren’t parties to our certified agreement.
PN138
But how did you know? How would know who was actually - put their hand forward? How did you know it wouldn’t be members covered by the certified agreement?---Well, I mean, word gets around in the factory pretty quickly.
PN139
I see. Now, I want to talk about the structure that you have proposed that I believe - if I take you to an exhibit of Mr Allen’s statement, DA4. I think that could be it. It’s towards the back, DA4. Keep going. It’s towards the back of the document?---Right.
PN140
It’s one of the attachments. It might have an F2 in the top right-hand corner.
PN141
THE SENIOR DEPUTY PRESIDENT: Did you say DA4?
**** MARCUS JAMES TAYLOR XXN MR FELDMAN
PN142
MR FELDMAN: DA4?---Right.
PN143
The next page. Yes?---Okay.
PN144
Do you recognise that document?---Yes, I do. Yes.
PN145
Can you explain what that document is?---Yes. It was a response to allegations made in respect of discrimination in favour of - of what? Yes, sorry, in favour of union members. Yes. That was a response to a document put forward by Derek Allen.
PN146
Is that the document that you sent to Derek Allen expressing concerns about the consultative committee rather than the previous document that’s been tabled today?---Yes, that was a document that addressed both the situation with the roster system and the consultative committee, yes.
PN147
So that was the document that you actually sent to Mr Allen. It seems in some ways similar to the document that I believe has been - - -?---Yes. No, that’s just a clearer version of it, set out better.
PN148
So we’re talking about the same document?---Yes, we are. Yes.
PN149
So the document today that’s AMWU3 is really, in your view, the same document as DA4?---Just so that we’re not all too confused, there is a document there that will have over that, that relates - basically, what I have done is cut it in half and printed it so it’s clearer. This one refers to the consultative committee side of this document and that document there referring to overtime deals with the other part.
PN150
So the version that’s in Mr Allen’s statement, DA4, you would agree, is the correct version that was sent to Mr Allen?---Yes.
PN151
Now I would like to take you to the second half of that document where it says:
PN152
A resolution of members a party to this agreement was being passed and the following members have been elected.
PN153
And it lists a number of employees, yourself, Stuart Eaden, Jason Chong, Shane Spence and Adrian Van Den Berg?---Yes.
PN154
Is that right?---Yes.
PN155
Can you tell me about the election of those individuals to those positions, how the election was conducted?---Yes. It was a meeting of those employees covered under the certified agreement.
PN156
How was the meeting called?---Sorry?
**** MARCUS JAMES TAYLOR XXN MR FELDMAN
PN157
How was the meeting called?---How was it called?
PN158
Yes?---Well, it was called by myself and the other shop steward. It was a meeting at lunch time.
PN159
When did - do you remember the date of the meeting?---No. No, I couldn’t tell you the date.
PN160
Was it after the consultative committee first met?---Yes, it was.
PN161
In terms of the representatives who were elected by resolution, I’m wondering if you could tell me which departments that they actually represent. If you’d start with yourself?---Okay, yes. Well, I’m obviously a union delegate elected by the parties to the agreement. I work in the framing section.
PN162
Okay. Yes, and - - -?---Stuart Eaden? Do you want me to move on?
PN163
Yes?---Stuart Eaden was in the cabinet making section.
PN164
Yes?---Jason Chong worked in framing section.
PN165
Yes, with you?---Yes.
PN166
Yes?---Shane Spence was in the cladding section.
PN167
Is that also called cabin production? Is that also known as cabin production?
---Well, that’s - yes, you refer to it as cabin production.
PN168
Yes?---But that’s a broad sort of - yeah. Broad term, but yes he was in the cladding section. Adrian Van Den Berg, timber preparation.
**** MARCUS JAMES TAYLOR XXN MR FELDMAN
PN169
Is that also part of the cabinet manufacturing section that Stuart Eaden worked in?---In the same factory as - yes, as the cabinet shop, yes.
PN170
So of the five representatives of your consultative committee, broadly speaking, only three departments are represented because of the fact that two of the shop stewards are also from the departments of framing and cabinet manufacturing; is that correct?---Yes, if you want to look at it from that point of view, yes.
PN171
I have no further questions.
THE SENIOR DEPUTY PRESIDENT: Mr Addison?
<RE-EXAMINATION BY MR ADDISON [10.42AM]
PN173
MR ADDISON: Just a couple of points. Just so that I’m clear, Marcus, DA4, you were tendered DA4 which is email, as I understand it. Is that an email, the one with “F2” on the top?---Sorry, the - - -
PN174
DA4, which is the document you were taken to last. I think it’s the one you have got in front of you?---This one? “F2”, yes.
PN175
Yes, with “F2” on the top of it. Is that an email, was it?---Is that - - -
PN176
An email?---I think it - no, that was actually - it was handed out, handed out to employees on the factory floor.
PN177
A3, which is a document I gave you earlier, was that document also given to Mr Allen? That’s this document, A3. Was that also given to Mr Allen ?---No, actually it wasn’t. It was - this was the original document. That was to break it down to make it easier for everybody here to understand.
PN178
All right. So Mr Allen didn’t have A3?---You’re referring to that as A3?
PN179
Yes?---Yes. No, probably not, no.
PN180
And that’s a summary of DA4, you say?---Yes. It’s a summary of that document. It should be pretty much word for word.
PN181
My friend raised a number of questions with you with regard to the election process and you said that the company didn’t go about it the correct way. That’s correct, isn’t it?---Yes.
PN182
Why do you say that they didn’t go about it the correct way?---Well, there was no - at any point in time there was no consultation with the union.
PN183
So was this - no, I’ll withdraw that. When you say there no consultation with the union, what was your expectation when the agreement was negotiated as to how the consultative committee would be formed?---Well, it would be - the election would be held.
PN184
Yes?---Would be held by those employees covered under the certified agreement.
PN185
And you say that didn’t happen?---No.
**** MARCUS JAMES TAYLOR RXN MR ADDISON
PN186
I have got nothing further, your Honour.
PN187
THE SENIOR DEPUTY PRESIDENT: Mr Taylor the employees who are on Australian workplace agreements, when it came to vote for the certified agreement did they take part in the vote?---No.
PN188
Can I take you to what is AMWU3, which Mr Addison called A3?---Okay, yes.
PN189
That’s got several pages attached to it including clause 31 of the certified agreement?---Yes.
PN190
I think it’s the third page in. Can you see that?---Yes.
PN191
Clause 31.2 says:
PN192
The consultative committee will consist of duly elected employees not exceeding one representative from each department.
PN193
Don’t worry about the “duly elected employees” for a minute?---Yes.
PN194
Looking at the “not exceeding one representative from each department”, what are those departments?---Well, yes, those departments would be the framing section, the cladding section, finishing or fixing section, and then welding, cabinet making and timber preparation.
PN195
Okay, that’s six you have given me. Now can I take you to DA1, which is attached to Mr Allen’s statement?---Yes.
PN196
Now, you said one of the departments in clause 31.2 was framing. Does that match up with any of the departments that are listed in DA1?---Yes, it would be in the cabin production factory.
**** MARCUS JAMES TAYLOR RXN MR ADDISON
PN197
The second one you mentioned was cladding. Does that match up with any of those in DA1?---Yes, that too is in the cabin production factory.
PN198
Finishing, fixing?---Same again.
PN199
Welding?---Welding would come under the chassis manufacture.
PN200
Cabinet making?---Cabin manufacture and timber processing area.
PN201
Timber preparation?---Under that same again where it says timber processing area.
PN202
Now, there’s three areas there which in DA1 are called departments. That’s the home manufacturing area, the stores and material handling, and installations, which you haven’t mentioned as being departments as you see them under clause 31.2 of the agreement?---Yes, I - my interpretation of “departments” was those various work areas, cladding and so forth, yes, bearing in mind that there isn’t union members working in all those areas so we had to nominate people in areas that were applicable.
PN203
So you have no union members in the home manufacturing area?---No.
PN204
What about in stores and material handling?---No.
PN205
What about in installations?---No.
PN206
The other areas that you have aligned up, the cabin production factory, you have members?---Yes.
PN207
The chassis manufacture you have members?---Yes. Yes, we do.
PN208
And the cabin manufacturing and timber processing area?---Yes.
PN209
So can you explain to me again because I’m unclear about this how you have demanded “department” in clause 31.2?---Well, the departments - you have got, if you like, three site factories but within those factories there’s departments, and the departments are the framing section, which is the construction and, if you like, cabin units.
PN210
Just let me stop you there for a second. The framing area, is that only on one site or is that on the three sites?---Well, it’s on two sites. There’s contract area, which is framing, and there’s a cabin production area which is framing as well.
PN211
Right. So, in your framing department, do you cover the two sites as one department?---No. We’d consider the contract area as a separate site to employees. They’re employed by Rainbow Homes.
**** MARCUS JAMES TAYLOR RXN MR ADDISON
PN212
Yes?---Because the other side of the site where they do frame is contract labour so it’s not - they’re not employees, if you like.
PN213
Okay. So, are all the employees on that other site - sorry, all the workers on that other site contractors?---Yes. There are some employees that are covered by AWAs that assist those contractors.
PN214
Right, okay. Where is the home manufacturing area?---That’s - well, if you like, it’s to the left side of the site, at the rear.
PN215
What does it actually do?---They construct traditional plaster units. See, in the actual - in that section they’re built by the builders, by contract labour and it’s built - they’re built traditional with plaster walls whereas in our section it’s in the cabin production the units are built with ply walls.
PN216
Can I take you - I don’t know whether the certified agreement has got the - yes, it has. I can take you to clause 4 of the certified agreement which is attached to A3, the second page of it, to AMWU3, okay? It’s AMWU3 which is that document - - -?---We were just looking at?
PN217
Yes?---Is that after settlement - where is it?
PN218
And the second page is clause 4 of the certified agreement which is “parties bound”?---Yes. Yes.
PN219
If you look at 4.1(b), the agreement binds:
PN220
- persons employed by Rainbow Homes classified under this agreement engaged in the manufacture and repair of unregistered moveable dwelling.
PN221
In the home manufacturing area, do they make unregistered moveable dwelling ?---I believe so. I’m not that familiar with the unregistered side of it but they are - yes, they’re both very similar homes, both removable dwellings, yes.
**** MARCUS JAMES TAYLOR RXN MR ADDISON
PN222
All right. Where’s the stores and material handling department?---At the front of the site as you drive in the entrance.
PN223
Why don’t you regard that as a department?---No, I don’t have a problem with that. That is a department, yes.
PN224
What about installations? Is installations a department?---Yes, I suppose it is. But it didn’t affect us directly because we had no union representation in there. Nobody covered under the certified agreement worked in either of those departments.
PN225
And is home manufacturing area a department?---Yes, I suppose you could call it a department, yes. But once again, we didn’t have anybody working in that department covered by this agreement.
PN226
Okay, thank you. Anything arising? You’re excused. Thank you, Mr Taylor?
---Just before I go, I actually was under the impression that I was reading out my statement. Am I not - - -
**** MARCUS JAMES TAYLOR RXN MR ADDISON
PN227
I have read your statement. There’s no need for you to read it out?---Okay.
Okay?---Yes, thanks.
<THE WITNESS WITHDREW [10.55AM]
PN229
THE SENIOR DEPUTY PRESIDENT: Does that complete your witnesses, Mr Addison?
PN230
MR ADDISON: That completes the witnesses, yes, your Honour.
PN231
THE SENIOR DEPUTY PRESIDENT: We turn to Mr Feldman’s witness. Mr Feldman?
PN232
MR FELDMAN: Your Honour, before I call Mr Allen, I would like to firstly just correct one error in our submissions. It’s in paragraph 1 and it’s - there’s an error in relation to the bullet points. This is page 1 of the outline of submissions, paragraph 1.
PN233
THE SENIOR DEPUTY PRESIDENT: Yes.
PN234
MR FELDMAN: Those bullet points should reflect each of the departments that I have - that are set out in Mr Derek Allen’s witness statement, the exhibit DA. So there has been a typographical error. There should be six bullet points. The first one should read “Cabin production factory” rather than “Cabinet production forestry”. The second bullet point is correct. The third bullet point should read “Chassis manufacture”. There should be a new fourth bullet point that reads “Cabinet manufacture and timber processing area”. The “stores and material handling” is correct and “Installations” is correct.
PN235
THE SENIOR DEPUTY PRESIDENT: Thank you.
MR FELDMAN: So, with that amendment we would seek to rely on the outline of submissions. I’d now like to call Mr Derek Allen.
<DEREK LAURENCE ALLEN, SWORN [10.57AM]
<EXAMINATION-IN-CHIEF BY MR FELDMAN
PN237
MR FELDMAN: Mr Allen, could you state your full name and address and/or business address for the - - -?---My full name is Derek Laurence Allen. My address is number 6 Mawson Street, M-a-w-s-o-n, Kew, 3101.
PN238
Mr Allen, have you prepared a witness statement with six exhibits in relation to this matter?---I have.
PN239
Do you have a copy of that witness statement in front of you?---I do.
PN240
Is it true and correct?---It is.
PN241
Are there any changes that you wish to make to that statement?---No, I don’t believe so.
PN242
MR FELDMAN: Your Honour, I have a signed copy. I believe the copy that was filed was unsigned.
PN243
THE SENIOR DEPUTY PRESIDENT: Yes.
**** DEREK LAURENCE ALLEN XN MR FELDMAN
PN244
MR FELDMAN: I’d seek to provide a signed copy. It’s identical to the one that has been filed other than the signature and we’d seek to rely on that statement. No further questions.
EXHIBIT #R2 WITNESS STATEMENT OF DEREK LAURENCE ALLEN
THE SENIOR DEPUTY PRESIDENT: Mr Addison?
<CROSS-EXAMINATION BY MR ADDISON [10.59AM]
PN246
MR ADDISON: Mr Allen, you’re the CEO of the company?---I am.
PN247
Are you still the CEO of the company?---I am.
PN248
When the agreement was negotiated you filled that position of CEO?---I did.
PN249
And you were involved in the negotiations?---I was.
PN250
The company’s desire was to have a certified - well, the company’s desire was not to have a certified agreement originally; that’s correct, isn’t it?---That’s correct.
PN251
And in fact you preferred people to be covered by independent arrangements or AWAs?---That’s correct.
PN252
It was your view that those employees who were covered by AWAs be excluded from the operation of the certified agreement; that’s correct, isn’t it?---No.
PN253
Well, wasn’t it put by you - if I could take you to A3, it should be in the box there, it’s just - it’s useful because it’s got the extracts in it, if it’s still there?---A3.
PN254
Is it still there, Derek, A3?---No, I don’t think so.
PN255
AMWU3?---No, sir.
PN256
No? Just bear with me. I don’t intend to use the front sheet, Mr Allen, just the extracts?---Okay.
PN257
If I can take you to the second page of that, you’ll find an extract which is clause 4 from the certified agreement which is the parties ban clause?---Yes.
PN258
Have you got that?---I have.
**** DEREK LAURENCE ALLEN XXN MR ADDISON
PN259
Now, 4.1(b) expresses your view during the negotiations to exclude the AWA covered employees from this agreement, doesn’t it?---My understanding was that it was the union that wanted the AWA employees excluded from the agreement.
PN260
Regardless of which one it was, it was agreed, was it not, between the two parties to the agreement that the AWA employees would in fact be excluded?---Correct.
PN261
And you signed a statutory declaration supporting the certification of this agreement?---I did.
PN262
And that statutory declaration declared that all of the terms of this agreement were agreed between the parties, isn’t it?---I believe so.
PN263
Now, can I take you to clause 31 which I think is on page 3 of those extracts?---Of the agreement?
PN264
You have the agreement, even better?---I have got the agreement.
PN265
Even better. If I can take you to clause 31 of that agreement?---Yes, sir.
PN266
Clause 31.1 provides that the parties would consult each other. Do you agree that that was the intent of it?---Yes.
PN267
What do you understand the “parties to this agreement” to be?---All those parties involved in the operation of Rainbow Transportable Homes.
PN268
That’s not what clause 4.1 says, is it?---No, it does not. Are the two mutually exclusive?
PN269
THE SENIOR DEPUTY PRESIDENT: Sorry, what was the answer?---Was it - I’m not sure whether the two are mutually exclusive.
PN270
MR ADDISON: Well, that will be a matter for submissions, I guess.
PN271
If I could take you to DA3 on your witness statement, which is the minutes of the meeting held at 2.30 on 21 June; have you got a copy of that?---Yes, sir.
PN272
Can I take you to the second paragraph on the first page. You were in the chair at this point in time, were you?---Correct.
PN273
And it was you that explained to everyone that the certified agreement required the company to form the consultative committee?---Correct.
**** DEREK LAURENCE ALLEN XXN MR ADDISON
PN274
There was consultative committee prior to this meeting, was there?---There was no committee called a consultative committee prior to that meeting.
PN275
That’s right. There was no body of employees which fulfilled the role over an instrument for consulting, was there?---Sorry, I didn’t hear the first part of the question, sir.
PN276
There was no body of employees elected - - -?---Prior to the certified agreement?
PN277
Well, prior to this meeting on 21 June, I’m thinking about, Derek, rather than the certified - - -?---Yes. We used to have a works committee which was - met over varying periods throughout 10 to 12 years. They would discuss site matters.
PN278
Who was on the works committee?---There was a range of people over that period of time.
PN279
Yes. And how were they appointed?---Volunteered, I think.
PN280
Volunteer? Okay. So did you use the same mechanism as the mechanism which you describe in your witness statement, which is attested to by exhibit DA2? DA2 is simply the forms that you sent out and were returned?---Sorry, I’m not sure of the question, sir.
PN281
Did you use the same mechanism in terms of seeking volunteers for the works committee as you did in establishing the consultative
committee on 21 June?
---No. No, it was a less formal committee. This was a formal process.
PN282
Now, in terms of the members that were on the committee, you have heard Mr Taylor’s evidence, which we gather that?---Yes.
PN283
Mr Taylor says there are five members of management on the committee. There’s yourself and Mr Morris who are both clearly managers?---Yes.
PN284
There’s Mr Trimble and Mr Stanford who are supervisors?---Both working supervisors, yes.
**** DEREK LAURENCE ALLEN XXN MR ADDISON
PN285
And there’s Mr Shepley who’s a leading hand?---Working leading hand, yes.
PN286
You heard Mr Taylor’s view that they form part of management?---I don’t agree with that.
PN287
You don’t agree with it? Okay. Also in terms of Mr Taylor’s evidence, he says that your interpretation of departments is far too broad. He says there are various departments underneath the heading, or instance, of carbon production factory. That’s true, isn’t it?---Departments under the heading of “Cabin production factories”, is that what you’re saying?
PN288
Yes?---No, I took the view that the functional areas of the company should be represented on a consultative committee. It says in section 31 that it’s departments. Those, in my view, are the active departments within the operation of the company.
PN289
Yes?---What Mr Taylor has referred to is subdivisions of those departments.
PN290
Indeed. Mr Taylor says that, for instance, framing he sees as a functional unit and as such he says that’s a department?---I see that as an operation within the cabin manufacturing factory. I see it as an operation within the homes manufacturing area.
PN291
Yes. It’s always been seen to be a separate department though, hasn’t it?---No, not in my view.
PN292
Employees have been transferred from cladding to framing, for instance, haven’t they?---From one section to another? Yes.
PN293
Or section or one department?---I choose the word “section”; you choose the word “department”.
PN294
So we’re just talking semantics here, are we?---I don’t see the framing section as different to the framing in other areas, so there’s more than one framing section. Those are what I believe to be the correct definition of the operational departments of the business.
PN295
But you wouldn’t take any particular difference with a person, if a person said to you on the shop floor, “Well, I’m working in the cladding department today”. You wouldn’t have a great problem with that, would you?---No. I don’t think they refer to it as the cladding department but they’d probably refer to it as cladding area but - - -
**** DEREK LAURENCE ALLEN XXN MR ADDISON
PN296
Or the framing department?---It’s not a commonly used term in the language of the employees.
PN297
Well, yes, I guess that’s probably right, Mr Allen.
PN298
THE SENIOR DEPUTY PRESIDENT: Just on that, you say the word “department” is not a commonly used word?---No. They tend to talk about areas, your Honour.
PN299
It immediately begs my question about why the word “department” is used in the agreement then?---I can’t offer an explanation for that, your Honour, it was there, it was accepted.
PN300
Who wrote the clause, do you know?---No, I don’t.
PN301
MR ADDISON: Can I show you a document - or I have got a couple. You have seen these before?---Mm mm.
PN302
I didn’t think there’d be a particular argument about this but if I can just show my friend Mr Feldman first. And, your Honour, you may well have a copy of this on the file.
PN303
THE SENIOR DEPUTY PRESIDENT: Not on the file that I have got here, I don’t think.
PN304
MR ADDISON: This is the document that deals with - do you have another copy of this? If I could give that too and the witness to look at that one, slightly different.
PN305
But I just want to take you down the list of employees and then next to them is their functional areas?---Yes.
PN306
Do you see what I mean?---Mm.
PN307
And so employee A works in welding or works in framing?---It says he’s a welder, yes.
PN308
Or he’s a framer?---Correct.
PN309
Or he’s a finisher?---Correct.
PN310
Or he’s a cabinet maker?---Correct.
**** DEREK LAURENCE ALLEN XXN MR ADDISON
PN311
Now, on that basis can you say why employees would consider that their functional areas are in fact their departments? Do you see how that could com about?---I could see how it could come about. It doesn’t mean it’s correct but I can see how it could come about.
PN312
Well, it may or may not be correct. It may well not be correct, Mr Allen, but certainly it’s Mr Taylor’s view, and you accept, I presume, that Mr Taylor’s view has got some veracity - - -?---Yes.
PN313
- - - in terms of, you know, he works at the factory, doesn’t he?---Yes.
PN314
And he’s worked there for quite a long time?---Yes.
PN315
And he considers his department to be framing?---I consider he works in the framing area of the cabin factory. But I can understand his point of view but I don’t agree with it.
PN316
Your Honour, I don’t propose to tender that unless you want me to.
PN317
THE SENIOR DEPUTY PRESIDENT: It’s up to you.
PN318
MR FELDMAN: I don’t propose to tender that. I think the evidence speaks for itself.
PN319
Now, you say at paragraph 24 of your witness statement that you believe aspects of the statement submitted by Marcus are incorrect and that Marcus, Stuart, Lou, Darren, and yourself had discussions following the signing of the certified agreement in relation to ..... . You have heard Mr Taylor’s view with regard to those discussions. His view was that the delegates would be certainly members of the committee. In fact, that was agreed, wasn’t it?---No.
PN320
You say it wasn’t agreed?---No.
PN321
What, there was no discussion about the delegates already being elected by the employees and therefore logically having a position?---The position was discussed of having a consultative committee. The position was discussed as to whether delegates would be part of that consultative committee. I anticipated that when we sought nominations that the delegates would nominate for those positions. They’re not identified under section 31 as having a place on that committee, only one person from each department. I anticipated they would nominate from their departments. So I didn’t, at that discussion, expect them to be excluded, but I certainly didn’t accept that it was an agreement that they would be part of it.
**** DEREK LAURENCE ALLEN XXN MR ADDISON
PN322
How many employees are currently employed under AWAs on the site?
---Anecdotally 17, 18.
PN323
How many are employed under the certified agreement?---Currently, I think, nine or ten.
PN324
If an election was held on that basis, union employees would not get a position; that’s correct, isn’t it?---No, because I would have believed that they should have been elected from their departments and their departments have a varying number of employees under certified agreements as versus AWAs.
PN325
Indeed?---So I was anticipating that there would be a fairly even number.
PN326
If we take what you say are departments - just bear with me for a second, would you, Mr Allen. Yes, if we take the areas that you say are the correct departments?---Yes.
PN327
No union member would be elected from whole manufacturing area, would they?---Sorry, no - - -
PN328
There would no union member that could possibly be elected from the whole manufacturing area; that’s correct, isn’t it?
PN329
Because there are non-union members in there?---That’s correct, I believe, yes.
PN330
Similarly, in terms of stores and materials handled, there were no union members employed in those employs, are there?---No.
PN331
Therefore it is not possible to have a union delegate elected from that area?
---Currently that’s correct, yes.
PN332
And installations similarly there are no union members employed in installations, are there?---Currently, that’s contract.
PN333
The intent of the consultative committee as per your minutes and as per your explanation is an intent that would be established for the purposes in the certified agreement; that’s correct, isn’t it?---Yes.
**** DEREK LAURENCE ALLEN XXN MR ADDISON
PN334
And if your interpretation was to be the one agreed to, that would logically resolve in at best three union delegates out of eight, wouldn’t it?---Three union delegates representing six departments, three probably non-union delegates representing the other three departments and two management.
PN335
Yes. So that would end up having three representatives of one of the parties of the agreement, two representatives of another party to the agreement and three representatives who are not covered by the agreement at all. You’d agree with that, wouldn’t you?---Correct.
PN336
That’s correct. Did Mr Morris raise with you the issues that Mr Taylor had raised with him once you distributed the documents seeking volunteers to the consultative committee?---No. They weren’t done before the consultative committee met.
PN337
Well, I think the evidence of Mr Taylor was that - and I think it was Mr Feldman who asked him the question that the notice to the employees was distributed approximately at the end of May?---25 May to be exact.
PN338
Yes. And Mr Taylor agreed that that would have been about the timing and that he raised with Mr Morris, the works manager, his concerns at about that period of time and he told Mr Morris that he thought that the company was going about the process in the wrong way. Was that raised with you at all?---No, it wasn’t raised with me and Mr Morris made no mention of it to me either so I don’t know whether it happened or not.
PN339
Okay. Do you accept Mr Taylor’s view that he raised it with Mr Morris?---No, I don’t because I believe a matter of this significance Mr Morris would have raised with me if he had done so, but it could be an oversight. I have got no way of knowing.
PN340
Yes, that’s right. You don’t intend to call Mr Morris, do you?---No.
PN341
Is there any reason why not?---I wasn’t anticipating it would be necessary to have him in attendance.
PN342
Did you check with Mr Morris - - -?---I don’t believe it’s referred to in Mr Taylor’s statement.
PN343
Well, I think in paragraph 4 to Mr Taylor’s statement, he makes some propositions there?---That refers to - - -
PN344
About the makeup of the committee?---That refers to the informal meeting in my office.
PN345
Yes. He then talks about the proposed consultative committee as elected by the employees who are covered by the agreement?---Yes, that was done after 21 June.
PN346
Yes. And he talks about his view at the end of the witness statement being that the consultative committee should have been drawn by employees who are bound by the certified agreement?---Mm.
PN347
Did you and Mr Morris have any discussion about Mr Taylor’s witness statement prior to your coming here today?---Sorry?
**** DEREK LAURENCE ALLEN XXN MR ADDISON
PN348
Did you and Mr Morris have any discussions - - -?---I showed it to him.
PN349
- - - with regard to the content?---I showed it to him, yes.
PN350
Did you ask Mr Morris whether Mr Taylor had raised any concerns with him?
---No, I didn’t.
PN351
Did he volunteer?---No, he did not.
PN352
Okay. So you just simply showed it to him?---I asked him whether he thought that was a reasonable expectation of what happened. He read it, he said, “That’s his version”, is what he said to me.
PN353
And you didn’t take it any further than that?---No, I did not.
PN354
You see, you say in your witness statement at paragraph 29 that the AMWU made no complaints when the consultative committee was formed. You meant by that that they made not complaints to you personally?---That’s correct. They made o complaints to me personally. They made no complaints to me when the consultative committee met on 21 June. The first complaint I received about it was a memo handed to me by Marcus Taylor on 24 June, which is one of the attachments.
PN355
Yes, well, it’s fair to say there was only one union member on the consultative committee at 21 June; that’s correct, isn’t it?---Yes.
**** DEREK LAURENCE ALLEN XXN MR ADDISON
PN356
That’s Mr Eaden?---That’s correct.
PN357
So out of eight there was one union member?---Yes.
PN358
I have nothing further, your Honour.
THE SENIOR DEPUTY PRESIDENT: Mr Feldman?
<RE-EXAMINATION BY MR FELDMAN [11.21AM]
PN360
MR FELDMAN: Mr Allen, just to clarify a number of matters. Firstly, in relation to when you received the nomination forms back, these are the documents that are behind DA2?---Yes.
PN361
Why was there no need to actually hold an election in relation to any of those positions?---I didn’t receive more than one nomination for each of the departments. In fact, I at that time hadn’t received a nomination for the cabinet making and timber processing area. I was disappointed that we didn’t receive more nominations.
PN362
Yes. And in relation to the vacancy in the cabinet manufacturing and timber processing area, what did you do to seek to fill that vacancy?---On the morning of 21 June I went into that area and there were three people working there, Frederick Jordan, Adrian Van Den Berg and Stuart Eaden, Stuart being the shop steward. I approached Stuart and said, “Listen, we’re having a meeting of the consultative committee this afternoon and this area isn’t represented. Would you have a talk to the three people that are here and determine whether one of you would like to be - participate in the consultative committee?” I said that if they elected Fred Jordan it would create some difficulty because Fred Jordan is profoundly deaf but I said that if it was their wish to elect Fred Jordan then we’d make arrangements so that he could communicate and understand the consultative committee. So I left that in the hands of Stuart Eaden and a little later in the day, an hour, hour and a half, he came into my office and handed me a nomination form that nominated him.
PN363
Did Mr Eaden express any concerns whatsoever in relation to the process for establishing the consultative committee or his own nomination?---No.
PN364
And did Mr Eaden attend the consultative committee meeting and participate - - -?---Yes, he did.
**** DEREK LAURENCE ALLEN RXN MR FELDMAN
PN365
- - - that afternoon. Yes?---I actually - if you refer to my - the minutes of the consultative committee I actually asked the committee if they were happy with the way it was structured and the people that were there and they confirmed that they were.
PN366
Now, prior to the establishment of the consultative committee, and by “establishment” I mean the first meeting taking place on 21 June, did anyone from the AMWU express concerns to you, or did you become aware of any concerns relating to the establishment of the consultative committee meeting?---No, I received no approaches and not aware of any concerns.
PN367
I’d now just seek to - sorry, I just with to raise also a document that was provided by the union earlier today, I think it’s document AMWU3?---Yes.
PN368
I haven’t received a copy but there may be a copy in the - - -?---Yes.
PN369
Did you ever receive a copy of that particular document in that form?---No, the first I have seen it is now.
PN370
But you acknowledge receiving after the first consultative committee meeting a document from Mr Taylor and Mr Eaden dated 24 June?---I did.
PN371
And that document I believe is DA4 of your statement?---I’ll just check. That’s correct. I was handed this personally by Mr Taylor and Mr Eaden.
PN372
Yes. If I could take you once again to the certified agreement and this time just to clarify clause 3 of the certified agreement. I believe there’s an extract of the certified agreement attached to DA5?---I have got a copy.
PN373
You have got a full copy?---Copy, yes.
PN374
If I could take you to the definition of “employee”?---Yes.
PN375
Could you read out that definition for me?
**** DEREK LAURENCE ALLEN RXN MR FELDMAN
PN376
THE WITNESS:
PN377
“Employee” means any person employed by Rainbow Homes establishment at 863-865 Mount Highway, Bayswater and at 587-589 Dorset Road, Bayswater, 3153, involved in the manufacture of unregistered moveable dwellings except for persons employed in the managerial positions and persons involved primarily in administrative duties.
PN378
MR FELDMAN: Yes. Does that say anything in your view in relation to employees only being union members?---No, it does not.
PN379
Does it make any difference? No. And would you say that’s the same definition of “employee” that’s contained within clause 31.2 of the certified agreement?
PN380
MR ADDISON: That’s for submission, isn’t it?
PN381
MR FELDMAN: Probably.
PN382
THE WITNESS: Yes.
PN383
MR FELDMAN: I just wanted to raise those matters on the basis that in terms of the definition of “employee” that you have just read out, if you could have a look at DA3, exhibit DA3, which are the minutes of the consultative committee meeting?---DA3, yes.
PN384
In terms of that definition of employee, would you agree that Gary Trimble was an employee of the - an employee within that definition, being a person employed?---Yes, he is.
PN385
And Brett Stanford?---Yes.
PN386
James Shepley?---Yes.
PN387
Stuart Eaden?---Yes.
PN388
Graham Tiernan?---Yes.
PN389
Darren Newell?---Yes.
PN390
And clearly yourself and Darren Morris - - -?---We’re outside the definition, yes.
PN391
MR FELDMAN: You’re outside the definition. Thank you. I have got no further questions.
**** DEREK LAURENCE ALLEN RXN MR FELDMAN
PN392
THE SENIOR DEPUTY PRESIDENT: Mr Allen, in DA1 which is attached to your statement, Mr Taylor said framing was a department and it was covered in the cabin production factory?---Yes.
PN393
Do you have framers in other areas, other departments as you have listed them there?---Yes, we do, your Honour. They’re in the home manufacturing area.
PN394
And what about cladders?---We have those in the home manufacturing area also.
PN395
Finishers and fixers?---They’re also in that area, your Honour.
PN396
Welders?---Welding is a separate area.
PN397
And which one of - are they only in the chassis manufacture?---In the chassis manufacturing, yes.
PN398
And cabinet makers, timber preparers, or cabinet makers first perhaps, which departments as you have listed them do you have those in?---We have both in the AWA employees and certified agreement, the employees in those areas.
PN399
No, no, Mr Taylor said the cabinet making department could be aligned with the cabinet manufacture and timber processing area. My question is where else in the departments as you recognise them do you have cabinet makers?---Only in the one area, your Honour.
PN400
On in that cabinet manufacture?---Yes, it’s a separate part of the factory, your Honour.
PN401
And timber preparers, only in cabin manufacture and timber processing area?
---Specifically for that task, yes, your Honour.
PN402
Do you have timber preparers in any of the other departments?---Not specifically, no.
**** DEREK LAURENCE ALLEN RXN MR FELDMAN
PN403
And the framers, cladders and finishers/fixers that you said you have in both the cabinet production factory and the home manufacturing area, do those workers move between those departments, as you recognise them?---No, they do not.
PN404
So, if I’m employed by you as a framer, I’m only employed to work in one department?---If you’re an employee of the company as a framer you would only work in the cabin manufacturing area.
PN405
What if you have a need for more employees in the home manufacture area, would you transfer employees to that area?---Would we transfer people?
PN406
If I’m a framer, and I’m working cabinet production, suddenly you have a huge increase in demand in home manufacturing, would you transfer me from cabin production to home manufacturing?---I could do that, yes.
PN407
So part of their contract is they can work in, what, any of the departments or within their skill mix?---Within their skill mix, yes.
PN408
Okay. You have the certified agreement there?---Yes, I have, your Honour.
PN409
Looking at clause 31, now the certified agreement as I understand it imposes rights and obligations?---I believe so.
PN410
And clause 31.5 - have you got it there?---31.5.
PN411
Yes. It says:
PN412
Consultative committee members agree to carry out their duties in a responsible and honest manner in the spirit of this agreement.
PN413
Do you see that it’s an obligation on consultative committee members to carry out their duties in a responsible and honest manner?---Do I see it this way?
PN414
Yes?---Yes, absolutely.
PN415
Just turning again to the certified agreement, which clauses in the certified agreement apply to employees on Australian workplace agreements?---I’m not sure if I’m qualified to answer that, your Honour.
PN416
Well, as I understand it, you’re saying clause 31 does?---I’m saying that clause 31.2 identifies employees.
PN417
Yes. So, you’re saying that at least clause 31.2 applies to AWA employees?---I would believe it should, yes. It does.
**** DEREK LAURENCE ALLEN RXN MR FELDMAN
PN418
I’m asking you which other clauses in the agreement apply to AWA employees?---I’d have to go through them detail by detail because obviously there are some occupational health and safety issues and a number of general issues that I would have thought would cover other - all employees. And there are specific clauses in this certified agreement which only apply to the - - -
PN419
So, how do I tell which clauses apply only to what I’ll call the certified agreement employees and which clauses apply to both?---That’s a difficult task, your Honour, I’d have to go through each clause myself to make some suggestion to you.
PN420
You haven’t done that before this?---No, I have not.
PN421
Does the settlement of disputes clause apply to AWA employees? This is clause 32 of the certified agreement?---I would expect that to apply to all employees.
PN422
Okay. Does the Australian workplace agreement have a dispute settling procedure in it?---I believe it does. I have not - I don’t have one here with me, your Honour, but I believe it does.
PN423
So how can both apply?---Good question, your Honour. It listed a set of terms and conditions which endeavour to assist me to manage the operation of the company and to determine the way in which employees should be treated. I think if there’s a situation where there was a dispute, the employees are entitled to a process to determine the validity of that dispute which is obviously recognised in the certified agreement and I believe is recognised n the AWA. I don’t believe them to be in principle, they apply - my understanding of this outcome, and I attest to it in law that I have no legal standing, but I would expect there to be natural justice involved in the process and that’s why - whilst you might argue that the AWA employees don’t specifically come under that settlement of disputes, irrespective of which instrument they’re employed under, they’re entitled to fair process in the settlement of the dispute. So I take the view that that - rightly or wrongly, your Honour, that that section 32 should apply to all our employees. They should receive fair process.
PN424
Okay. Anything arising?
MR ADDISON: Yes, there’s one matter that arises, your Honour.
<FURTHER CROSS-EXAMINATION BY MR ADDISON [11.35AM]
PN426
MR ADDISON: Mr Allen, can I just take you to the certified agreement. Can I take you to clause 14 of the certified agreement?---Yes.
PN427
Particularly 14.2(b)?---Yes.
PN428
You’ll see employees are described at 13.2(b) as capital E, “Employees”; do you see that?---Sorry, 14.2(b) - - -
PN429
14.2, “Rates of pay”, (b), “Wage increases”?---“Wage increases”. Yes.
PN430
Where employees are described as capital E “Employees”?---Yes. When I went to school, Mr Allen, you always started the sentence with a capital letter.
PN431
Indeed you do. Indeed you do. Do employees - well, if I can take you back to clause 4, and the point that my friend made earlier in terms of your evidence, he took you to the definition of “employees” and he took you to the capital E definition of “Employees” where you say that:
PN432
“Employee” means any person employed by Rainbow Homes establishment at -
PN433
the address:
PN434
- involved in the manufacture of unregistered moveable dwellings except for persons employed in the managerial positions and persons involved primarily in administrative duties.
PN435
Do you see that? It’s in “Definitions in clauses”. It’s right on page 3?---Three, sorry.
PN436
It’s the second definition on page 3?---Yes.
PN437
My friend took you to that earlier. My friend put to you that that was a capital E “Employee”?---Yes.
PN438
And that’s what it meant?---Yes.
PN439
It means “employees”?---Yes.
PN440
Can I take you to 14.2(b) again. You’ll know that the employee is described as a capital E “Employee”?---Yes.
PN441
Do employees under AWAs receive the 4 per cent wage increase?
---Automatically, no.
PN442
No, that’s right. Indeed, 14.2(b) does not apply to AWA employees, does it?
---Not unless I wish it to.
**** DEREK LAURENCE ALLEN FXXN MR ADDISON
PN443
That’s probably right. Maybe I can take you to 14.2 - - -?---Well, I think I can give a pay rise to people that I wish to.
PN444
Well, you may be able to, Mr Allen, but the agreement obliges you, does it not, to give - - -?---To the certified agreement.
PN445
- - - to give AMWU all furnishing trades members who are covered by this certified agreement - it obliges you to give them a 4 per cent wage - - -?---Correct.
PN446
- - - increase, doesn’t it?---It does.
PN447
And you’re not obliged to give the AWA covered employees a 4 per cent pay increase?---I’m not.
PN448
No. And if I can take you to 14.2(c), which is on the next page, you’ll see that the current employees - once again capital E “Employees” whose employment is subject to this agreement will receive a $300 gross one-off payment after agreement is reached?---Yes.
PN449
Did the AWA employees get that $300?---They certainly did.
PN450
They did?---Yes.
PN451
Very good. So that does apply to them, does it?---We applied it.
PN452
You applied it. Very good.
PN453
THE SENIOR DEPUTY PRESIDENT: Can I just - is that part of their AWA?---No.
PN454
MR ADDISON: Are you obliged to give the AWA employees a $300 sign-on?---No, sir.
PN455
But it’s not a legal obligation?---No, but I think I’m legally obliged to treat them all fairly.
**** DEREK LAURENCE ALLEN FXXN MR ADDISON
PN456
That may well be the case, Mr Allen, I’m not contradicting that?---No, no, I didn’t say you were.
PN457
But you are obliged to give the employees covered by this agreement $300 described therein?---At the time this agreement was reached we paid them under this agreement $300 sign on to pay.
PN458
And there was a legal obligation to do so?---There was.
PN459
Clause 16.2, you’ll see there:
PN460
The employer will provide Employees with the use of a kit of tools.
PN461
Do you provide that across the board?---We do.
PN462
And there’s a legal obligation to do that to employees covered by this agreement?---I don’t know the answer to that, Mr Addison. So - well, it’s a legal obligation but they find it very difficult working without tools so we provide them.
PN463
All right. I accept that. I accept that?---I don’t believe it’s a legal obligation.
PN464
Well, do you agree that the agreement sets legal obligations down?---Correct.
PN465
So, if it’s described in this agreement do you have a legal obligation to provide it, don’t you?---I understand so, yes.
PN466
And you don’t have the same obligation to provide AWA employees with tools, do you?---Not under this agreement, sir, no.
PN467
No, that’s right. Is there a requirement in the AWA to provide tools?---I’m not sure of that. I don’t believe so.
PN468
Can I take you to clause 19. Does that apply to AWA employees, that’s the overtime rates? Do overtime rates applies to AWA employees?---They do.
PN469
At that rate, at double time?---Required voluntary overtime, no. Required overtime is at time and a half.
PN470
Sorry, say that again?---Voluntary overtime is at normal rates of pay. Required overtime is at time and a half in the AWA.
**** DEREK LAURENCE ALLEN FXXN MR ADDISON
PN471
So, an AWA employee that works 8 hours overtime, for instance, and it’s required - - -?---Yes.
PN472
- - - will get 12 hours pay, is that correct?---Correct.
PN473
Whereas an employee covered by the terms of this agreement would get something more than that?---Depends how they did it, sir, whether it was continuous or not continuous. They may only - if they did it in 2-hour intervals they’d get the same.
PN474
Indeed, but if they did it in an 8-hour block - - -?---They get more.
PN475
- - - it would be something more?---Correct.
PN476
So, clause 19 does not apply to the AWA employees?---Not in its entirety, no.
PN477
Clause 26, does that apply to the AWA employees, that is a 5-minute wash-up break - wash-up time prior to meal breaks?---We provide that to all employees.
PN478
Do you have a legal obligation to provide the AWA employees with that?---I’m unsure but I doubt it.
PN479
You doubt it?---Yes.
PN480
Nothing further, your Honour.
PN481
THE SENIOR DEPUTY PRESIDENT: Mr Allen, just going back to something I asked you before, framers, setting aside the contractors that I think Mr Taylor spoke about - - -?---Yes.
PN482
- - - of the workers that you have, which are either certified agreement or AWA employees, how many framers have you got?---Five or six.
PN483
And cladders?---Two.
PN484
And finishers/fixers?---Two.
PN485
Cabinet makers?---As of today I think we have four.
PN486
Timber preparers?---Processes, one.
PN487
Timber processes, are they?---Processes, preparation.
**** DEREK LAURENCE ALLEN FXXN MR ADDISON
PN488
Am I right in understanding, and please correct me if I’m wrong, that basically you make cabins, homes and chassis?---The cabins and the homes both have chassis, so we have an area that makes chassis that has AWA and certified agreement employees.
PN489
Okay. Now, I’m actually just going to what you actually do?---Okay.
PN490
You actually make cabins and homes?---Yes.
PN491
Chassis go on both of those?---Correct, your Honour.
PN492
Cabinets go in both of those?---Correct, your Honour.
PN493
So, your final product is cabins and homes and the other departments you have gone to which are chassis, cabinet makers, stores and installations, are about making things for those products or fitting them in?---Correct, your Honour.
PN494
Anything arising?
MR FELDMAN: Just I did want to actually clarify just a couple of matters.
<FURTHER RE-EXAMINATION BY MR FELDMAN [11.44AM]
PN496
MR FELDMAN: Mr Allen, clause 6 of the certified agreement makes reference to the choice of industrial instrument, we commonly call it an AWA retention clause in that it allows employees who are initially covered by this certified agreement - - -?---Yes.
PN497
- - - to become covered by an Australian workplace agreement; is that correct, and that was an intention of this agreement?---The employees have - start as casual employees and then have the choice of which coverage they seek, yes.
PN498
But they would initially be covered by - under this agreement?---Under this agreement, yes.
PN499
As casual employees?---Casual employees.
**** DEREK LAURENCE ALLEN FRXN MR FELDMAN
PN500
And at some point they could become covered under an Australian workplace agreement?---Correct.
PN501
And that Australian workplace agreement, that could potentially cover either some of their terms and conditions or it might be an intention to cover all of their terms and conditions?---That’s correct.
PN502
That’s right. So, you could have an Australian workplace agreement, for example, that said certain provisions contained with this certified agreement would continue to apply but it dealt with certain terms and conditions?---Yes.
PN503
THE SENIOR DEPUTY PRESIDENT: Well, do they?---Sorry?
PN504
Do the Australian workplace agreements refer back to the certified agreement?
---Not to my knowledge.
PN505
MR FELDMAN: The ones that are - they certainly can.
PN506
THE SENIOR DEPUTY PRESIDENT: Hang on, I’m asking the witness, Mr Feldman.
PN507
MR FELDMAN: I’m sorry.
PN508
THE WITNESS: Sorry, I apologise, your Honour.
PN509
THE SENIOR DEPUTY PRESIDENT: No, don’t you apologise?---I’m not sure what the protocol is, your Honour. I’m trying to do the best I can.
PN510
So, I asked you a question about whether the AWAs refer back to the certified agreement and I think your answer was “no”?---The AWAs have the capacity - we haven’t written any more AWAs since the original certified agreements started. My understanding, your Honour, is the AWA has the capacity to add or delete conditions that are made during that agreement between the employee and the management. But it has to pass the no-disadvantage test.
PN511
Yes?---So, all people start with this now, as per the certified agreement, come under the certified agreement as casuals. If we wish to gauge them full-time, we have to advise them of that within 3 months and then have the choice of the AWA or the certified agreement. And in the process, which hasn’t happened as yet, in the process of negotiating one or the other, my understanding is if it’s in the certified agreement then that’s the agreement. If it’s the AWA it give us some flexibility to discuss other matters.
**** DEREK LAURENCE ALLEN FRXN MR FELDMAN
PN512
While I have got you, how many welders have you got? I forgot to ask you?
---Five, I believe.
PN513
Thank you. Yes, Mr Feldman?
PN514
MR FELDMAN: Mr Allen, in terms of employees who in the future may be offered Australian workplace agreements, would it be your view that there may still be some things contained within this certified agreement that would still apply to their employment. For example, if I take you to clause 24 of the certified agreement, that relates to occupational health and safety. Would you consider that those obligations in relation to safe work practices should apply to all employees as defined, whether they chose to be covered by an Australian workplace agreement?---Absolutely they should, yes.
PN515
And clause 25, there’s a reference to provision of amenities. Would employees covered by an Australian workplace agreement have access - - -?---Yes, they - - -
PN516
- - - to those amenities?---Yes, they would.
PN517
And I think Mr Addison made reference to wash-up time also being available to all employees regardless of instrument?---We treat them all the same.
PN518
And clause 29, it deals with a drug and alcohol type policy?---Yes.
PN519
Would that apply to - - -?---That would be applied uniformly, yes.
PN520
And clause 30 in relation to travel allowance, would that apply to all employees even if they were to - - -?---That is applied - - -
PN521
- - - subsequently become - - -?--- - - - universally, yes.
PN522
So, even if they became engaged under an Australian workplace agreement as permitted by the agreement, they would still have - that still as employees have other benefits under the certified agreement?---Correct.
PN523
Yes. Now, the wording of clause 14, which is the pay clause, and particularly 14.2, it makes reference - there is a further definition there in 14.2(a) under the heading, “Minimum hourly rates” of:
**** DEREK LAURENCE ALLEN FRXN MR FELDMAN
PN524
Adult employees employed under the terms and conditions of this agreement -
PN525
Do you think that, in your view, narrows in some way the definition of “employees” to confirm that they’re - - -
PN526
MR ADDISON: Once again, your Honour, I think this is probably a better proposition for submissions rather than in evidence. I’m sure this witness can’t answer that question in any meaningful way.
PN527
THE SENIOR DEPUTY PRESIDENT: Well, look, I’ll allow the question and the weight to be given to it is - you can make submissions on that.
PN528
MR FELDMAN: Sorry?
PN529
THE SENIOR DEPUTY PRESIDENT: I’ll allow the question and the weight to be given to it is something submissions can be made on later.
PN530
MR FELDMAN: Yes. I’m raising it in particular because Mr Addison went to that specific clause.
PN531
And similarly, in the clause 14.2(b) there is reference in both 14.2(b) and 14.2(c) to employees whose employment is subject to this agreement and that’s in some ways different to the other clauses I have just brought you to which simply relies on the definition of capital E “Employee”?---Correct.
PN532
Yes, thank you. No further questions.
PN533
THE SENIOR DEPUTY PRESIDENT: Mr Allen, setting aside the managers and administrative people, how many employees do you have - and also setting aside contractors obviously?---Around 32, 34, something of that order.
Thank you. You’re excused?---Thank you very much.
PN535
MR ADDISON: Your Honour, is it possible just to have a very, very short adjournment?
**** DEREK LAURENCE ALLEN FRXN MR FELDMAN
PN536
THE SENIOR DEPUTY PRESIDENT: Yes. I’ll adjourn until five past 12.
PN537
MR ADDISON: If the Commission pleases.
<SHORT ADJOURNMENT [11.50AM]
<RESUMED [12.02PM]
PN538
THE SENIOR DEPUTY PRESIDENT: Mr Addison?
PN539
MR ADDISON: Yes, thanks, your Honour. Your Honour, the AMWU submits that based on the evidence and based on the certified agreement itself, it’s beyond doubt that the certified agreement puts in place an obligation on the parties to the agreement to form a consultative committee and to consult with each other. We say it’s beyond doubt because of the words of clause 31 of the agreement that is the intent and that clearly the purpose of clause 31 is to establish that consultative committee between the parties.
PN540
Now, the argument, I guess, your Honour, comes with regard to “the parties” and we see it that the parties to this agreement are in fact Rainbow Homes, the employees or the persons employed by Rainbow Homes classified under the agreement engaged in the manufacture and repair of unregistered mobile dwellings but does not apply to any employee who is engaged under an Australian workplace agreement as defined in the Act and the third party is the unions. Now, your Honour, we see that the instrument itself makes it clear that those employees employed under Australian workplace agreements are excluded from the operation of the agreement.
PN541
There is further support for that proposition in clause 6 itself and particularly at clause 6(e). Now, clause 6(e) makes it clear that if employees choose to be covered by an instrument other than this agreement, then section 170VQ(6)(iii) operates and then goes on to say:
PN542
This means that the instrument will operate to the exclusion of this agreement.
PN543
Your Honour, the agreement itself, the certified agreement is the source of the obligations and rights of the parties covered by the enterprise agreement. I think it was Munro J that said in one of the Falstaff cases that a stream can’t rise higher than its source, and what has been sought here is exactly that. The source of the pair is the certified agreement and it sets the obligations on the parties.
PN544
If one goes to the definitions, and my friends places some weight on the question of the definitions, and there is a definition of capital E “Employee” at page 3 of the agreement and that suggests that - or that says that:
PN545
“Employees” mean persons employed -
PN546
at the address -
PN547
- who are engaged in the manufacture -
PN548
However, the agreement itself makes it clear that there is not one class of employees at the employer’s establishment; there is in fact two classes of employees, those covered by the certified agreement and those covered by Australian workplace agreements. Now, Mr Allen, who is the CEO of the company made it clear in his evidence this morning that he will choose which parts of the certified agreement will apply in terms of the company’s obligation to employees covered by AWAs and which parties will not. He made it very clear, for instance, that clause 14.2(b) will not apply automatically but 14.2(c) will apply. And, as Mr Allen said, there’s no legal obligation for that. He just decided that he would do that, probably because he wanted to match what the union had achieved for its members for the non-union AWA covered employees.
PN549
And nobody’s complaining about Mr Allen doing that. That’s fine, if Mr Allen wants to pay people additional money, well, the union’s going to be the last person that stands in the way of that. However, the question is the legal obligation under the terms of the agreement.
PN550
Now, we simply say, your Honour, that clause 31 makes it abundantly l that the consultative committee is to be formed in a particular way. The consultative committee is to be staffed by the parties to the agreement, not by us, that the company accepts that it is the obligation arising from the agreement that establishes the consultative committee, and we say DA3 makes that absolutely clear. They’re the minutes of the consultative committee where Mr Allen explained to the committee that was established that it was the certified agreement that required the company to form a consultative committee.
PN551
Your Honour, there can be no argument, in our submission, for you to approach the requirements of the agreement and that is that the consultative committee will consist of duly elected employees, notwithstanding the employees in the agreement are described as capital E “Employees”, it is employees who are banned by the certified agreement pursuant to clause 4 that there needs to be a mechanism to duly elect employee representatives to sit on the consultative committee. And we say that’s the only true and proper interpretation of the agreement. There is no room for another interpretation in our submission.
PN552
Your Honour, I don’t think I’ll go beyond that. If you have any questions I’m happy to answer them.
PN553
THE SENIOR DEPUTY PRESIDENT: Mr Addison, I understand from your submission that you say only employees who are non-AWA employees, setting aside managers and administrative people, so only non-AWA employees being, as I understand or as you put it, the other side of the two-employee coin, are eligible to nominate for the consultative committee member.
PN554
MR ADDISON: Well, under the obligations under this agreement, yes, your Honour. There is nothing that stops the company from establishing a secondary - - -
PN555
THE SENIOR DEPUTY PRESIDENT: No, no - - -
PN556
MR ADDISON: - - - consultative committee, of course.
PN557
THE SENIOR DEPUTY PRESIDENT: Yes, okay. So that’s eligibility to nominate.
PN558
MR ADDISON: Yes.
PN559
THE SENIOR DEPUTY PRESIDENT: Who is eligible to vote?
PN560
MR ADDISON: Those who are bound by the agreement, your Honour, we say.
PN561
THE SENIOR DEPUTY PRESIDENT: And is it those in - only those in each department or is it all of those nominate?
PN562
MR ADDISON: Well, the agreement - there’s possibly room for interpretation there, your Honour. There could be some doubt there. It would be my submission that the logical proposition for this - for the operation of this committee would be that people can nominate as a representative of departments would need to come from those departments but then all of the employees covered by the agreement would have the right to elect those people. I mean, I say that on the basis of the requirements of certification of an agreement and it has been the subject of - that the very certified agreement needs to be subject to a valid majority of employees covered before it can be certified that has occurred. And we would say the voting rights for the election of the six employee reps if you like, would be the property of the collective, the collective agreement.
PN563
THE SENIOR DEPUTY PRESIDENT: So, those eligible to vote are all non-AWA employees, are they?
PN564
MR ADDISON: Excluding management employees because they’re not covered - - -
PN565
THE SENIOR DEPUTY PRESIDENT: Yes, management and admin.
PN566
MR ADDISON: Those entitled to vote are all those covered by the terms of the agreement, in my submission, your Honour.
PN567
THE SENIOR DEPUTY PRESIDENT: So, under that scenario, there is a proposition or a potential, is there not, that - let’s take the cabinet makers or the cabinet making department, as Mr Taylor put it.
PN568
MR ADDISON: Yes.
PN569
THE SENIOR DEPUTY PRESIDENT: A non-AWA employee nominates and there’s only four of those, as I understand, and I’m not sure whether they’re all union members or not but let’s assume they are all union members, and are all non-AWA employees, potential that those four cabinet makers want John Smith who is nominated to be elected but they could be outvoted by the remaining employees.
PN570
MR ADDISON: That’s a scenario that’s there, yes, your Honour. Yes. But there’s never been a proposition in this company of one vote, one value. There’s High Court authority on that. There’s a couple of Western Australian cases that deal with that whole proposition.
PN571
THE SENIOR DEPUTY PRESIDENT: Yes, well, I’m not sure of the relevance of that.
PN572
MR ADDISON: No, well, that’s probably true. Yes, they could be outvoted. They could be outvoted but - - -
PN573
THE SENIOR DEPUTY PRESIDENT: I just noticed - - -
PN574
MR ADDISON: - - - a cabinet maker must, on that scenario, be elected because the four cabinet makers form a department.
PN575
THE SENIOR DEPUTY PRESIDENT: Yes.
PN576
MR ADDISON: There must be a departmental representative.
PN577
THE SENIOR DEPUTY PRESIDENT: Yes.
PN578
MR ADDISON: And therefore one of the cabinet makers must be elected. That’s presuming there’s only six departments, of course.
PN579
THE SENIOR DEPUTY PRESIDENT: Well, your evidence is there was only six departments.
PN580
MR ADDISON: Indeed. We say - we have a different view on what the departments are, of course, your Honour.
PN581
THE SENIOR DEPUTY PRESIDENT: Yes.
PN582
MR ADDISON: We say the departments are framing, cladding, finishing, welding and timber preparation, effectively.
PN583
THE SENIOR DEPUTY PRESIDENT: And cabinet making.
PN584
MR ADDISON: And cabinet making, yes, my apologies, whereas the company says it’s something different to that.
PN585
THE SENIOR DEPUTY PRESIDENT: What’s the difficulty in having one representative - and let’s say assuming your submission that a non-AWA employee is the consultative committee member, what’s the difficulty in having one consultative committee member from cabinet manufacture and timber processing area as opposed to two being cabinet making and timber processing?
PN586
MR ADDISON: In my submission, your Honour, that’s a matter of practicalities for the parties to the agreement. I mean, if it was felt by either party to the agreement that it was impracticable to have two representatives, that one could function reasonably I would have thought under the normal processes of how agreements are worked in a real-life situation that there’s no impediment to coming to an agreement on that.
PN587
THE SENIOR DEPUTY PRESIDENT: And therefore is it the same argument that having one representative for cabin production as opposed to one from framing, cladding, finishing?
PN588
MR ADDISON: As I say, your Honour, in terms of how it works in a real-life situation, that’s a matter for the industrial parties, in my submission, your Honour.
PN589
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN590
MR ADDISON: Thanks, your Honour.
PN591
THE SENIOR DEPUTY PRESIDENT: Mr Feldman?
PN592
MR FELDMAN: Your Honour, I would really seek to rely on the detailed outline of submissions that we have previously filed but I just wish to make a couple of additional points. Mr Taylor in his giving his evidence outlined what he considered the purpose of a consultative committee meeting was, which was - and he raised a number of issues or he agreed with a number of propositions in relation to dealing with issues in respect of safety and other issues that covered all employees across the business.
PN593
If a narrow interpretation is taken of the consultative committee, it would potentially preclude different parts of the business from having any representation on the consultative committee and it would have potentially some departments with no representation based on Mr Taylor’s evidence that he didn’t believe in certain areas there were any employees covered by the - or remain covered by the certified agreement. It is my submission - - -
PN594
THE SENIOR DEPUTY PRESIDENT: But that might just mean you have to have two if you want to have a consultative committee, might it not?
PN595
MR FELDMAN: Well, it just becomes impractical for employees to - for issues that deal - that really relate to all employees of the business to have separate committees that might be considering or recommending different things.
PN596
THE SENIOR DEPUTY PRESIDENT: Well, if it’s a by-product of the way the certified agreement is being made, that impracticality presumably has been thought of.
PN597
MR FELDMAN: Yes. Well, I mean, we say that the certified agreement can be read in conjunction with other instruments including Australian workplace agreements. Now, historically Australian workplace agreements were offered prior to the certified agreement being negotiated or being in place. There’s nothing to say that future Australian workplace agreements, if they were to be introduced in the workplace for new employees, as is provided for in clause 6, couldn’t make reference to the retention of clauses within the certified agreement including, for example, the consultative committee clause or other clauses that Mr Allen in his evidence nominated as a possibility.
PN598
That is something that’s permitted within section 170VQ(6)(iii) that allows Australian workplace agreements to override certified agreements or prevail over certified agreements to the extent of any inconsistency. So, it’s certainly an Australian workplace agreements as provided for within the certified agreement could retain certain elements of it. And the reason - - -
PN599
THE SENIOR DEPUTY PRESIDENT: Well, an Australian workplace agreement that referred to the certified agreement - this is what you’re saying, isn’t it?
PN600
MR FELDMAN: Yes, it could and it could also make reference - - -
PN601
THE SENIOR DEPUTY PRESIDENT: Well, it’s only referring to it by writing in shorthand. What it is actually doing is writing the clause that’s in the certified agreement into the Australian workplace agreement. The obligation doesn’t arise from the certified agreement. The obligation arises from the AWA. It’s like a roping-in award. Roping-in awards are separate awards, they’re just writ short.
PN602
MR FELDMAN: Yes, and then reference would still be made though to particular issues within the certified agreement.
PN603
THE SENIOR DEPUTY PRESIDENT: Yes, but all it’s doing is providing the employee under the AWA with the same clause. It’s not - legally it’s doing nothing in respect of the certified agreement.
PN604
MR FELDMAN: Well, no, I think a certified - - -
PN605
THE SENIOR DEPUTY PRESIDENT: And it can’t affect those who are bound by the certified agreement.
PN606
MR FELDMAN: But an employee’s rights as - an employee can retain rights under a certified agreement if it at a later time they also enter into an Australian workplace agreement. An Australian workplace agreement doesn’t need to cover the field. It can - I mean, an Australian workplace agreement can be a single issue Australian workplace agreement where all other terms and conditions will continue to be covered by another industrial instrument, be it a certified agreement or an award.
PN607
THE SENIOR DEPUTY PRESIDENT: So, you’re talking about the same scenario in which the AWA only covers, say, hours of work, not wages, for example?
PN608
MR FELDMAN: Hypothetically, yes.
PN609
THE SENIOR DEPUTY PRESIDENT: Yes.
PN610
MR FELDMAN: But an Australian workplace agreement could deal with purely the wages and all the other terms - - -
PN611
THE SENIOR DEPUTY PRESIDENT: But how does that impact on whether the employee in clause 31 is a non-AWA or an AWA employee?
PN612
MR FELDMAN: We would say based on the definition in clause 3 that employee who was covered by an Australian workplace agreement could still be an employee for other purposes under the certified agreement and could still have legally enforceable rights subject to the terms of the Australian workplace agreement.
PN613
THE SENIOR DEPUTY PRESIDENT: What about obligations?
PN614
MR FELDMAN: Certainly the obligations could work both ways, both rights and obligations.
PN615
THE SENIOR DEPUTY PRESIDENT: Well, I asked Mr Allen about the obligation in clause 31.5. Now, an AWA employee is not bound by this certified agreement. He might be entitled to the rights of it, perhaps, in a similar way non-union members might be entitled to the rights of an award in similar sort of notion. But a non-AWA employee cannot have the obligations in this agreement imposed on them, can they?
PN616
MR FELDMAN: Well, we would say - - -
PN617
THE SENIOR DEPUTY PRESIDENT: Sorry, an AWA employee cannot have the obligations.
PN618
MR FELDMAN: Yes. Well, certainly if looking at a point in time the employees covered by an Australian workplace agreement prior to this agreement - prior to the certified agreement being certified wouldn’t have their rights read in conjunction with the certified agreement and that’s just based on the priority given within the Workplace Relations Act to different types of agreement. But the agreement itself makes reference to the ability to enter into Australian workplace agreements that would then apply to people who are in fact employees under this agreement. That’s what clause 6.2, what we call the AWA retention clause does. And therefore, depending on what the terms of that subsequent - that the AWA made subsequent to this agreement being in force says there could be legal obligations that continue to apply on those employees who are covered by an Australian workplace agreement.
PN619
THE SENIOR DEPUTY PRESIDENT: Then I would need to know all the terms of the AWA, wouldn’t I?
PN620
MR FELDMAN: Well, if there was a dispute - potentially if there was conflict and if you had - - -
PN621
THE SENIOR DEPUTY PRESIDENT: You see, but one of the difficulties I have is that clause 31.5, it seems to me, imposes an obligation on a consultative committee member. Now, it can only oppose an obligation on people who are bound by the agreement and the agreement says it does not bind AWA employees.
PN622
MR FELDMAN: That clause also - it also says that the agreement doesn’t apply to management, for example, but management can in fact be a member of the consultative committee.
PN623
THE SENIOR DEPUTY PRESIDENT: Well, I’m not sure that negates my argument.
PN624
MR FELDMAN: I see clause 31.5 as a general clause setting out what the obligations of members of the committee are.
PN625
THE SENIOR DEPUTY PRESIDENT: It’s certainly an obligation. Indeed, if I didn’t carry out my duties as a consultative committee member in a responsible and honest manner, I’d be in breach of the agreement, wouldn’t it?
PN626
MR FELDMAN: Strictly speaking, yes.
PN627
THE SENIOR DEPUTY PRESIDENT: Yes. I can only have an obligation if I’m bound by the agreement and the agreement just binds - does not bind AWA employees.
PN628
MR FELDMAN: Well, it does at a certain point in time though. I mean, if we take, for example - - -
PN629
THE SENIOR DEPUTY PRESIDENT: No. When does it bind them?
PN630
MR FELDMAN: Well, for example, before an employee - - -
PN631
THE SENIOR DEPUTY PRESIDENT: But they’re not AWA employees at that point. The minute they become AWA employees they’re not bound by the agreement, are they?
PN632
MR FELDMAN: Well, that would lead to some anomalies that I don’t think was the intention of the parties. It certainly wasn’t the intention of the respondent in this matter in that it could lead to the situation where somebody is nominated as an employee covered by this agreement during a casual period, to be nominated onto a consultative committee, to be elected onto that consultative committee, then to choose, as is the right under this agreement to enter into an Australian workplace agreement and then on that basis the employee could no longer remain a member of that consultative committee.
PN633
THE SENIOR DEPUTY PRESIDENT: Well, is it an anomaly or an inconvenience?
PN634
MR FELDMAN: Well, I think to give - I think it’s important that at the consultative committee that clause be looked at as for the purposes of actually covering all employees for the purposes that Mr Taylor indicated he believed was the purpose of the consultative committee meeting was to look at broader issues that his own evidence indicated could apply to all employees within the business working in different areas.
PN635
THE SENIOR DEPUTY PRESIDENT: So some of the consultative committee members will have that obligation in 31.5 on them but others who are AWA employees won’t. That can’t have been the intention of the parties.
PN636
MR FELDMAN: We would say that if they are a member of the consultative committee they would have that obligation.
PN637
THE SENIOR DEPUTY PRESIDENT: Well, how do they have it if they’re an AWA employee?
PN638
MR FELDMAN: Because we say that the definition of “employee” within clause 3 is broad enough within that definition to - - -
PN639
THE SENIOR DEPUTY PRESIDENT: But legally - - -
PN640
MR FELDMAN: And that is - - -
PN641
THE SENIOR DEPUTY PRESIDENT: Mr Feldman, legally they cannot, can they? I mean, give me the authority which says legally you can impose that obligation on an AWA employee when the AWA employee is not bound by the agreement.
PN642
MR FELDMAN: Well, that would depend on the terms of the Australian workplace agreement.
PN643
THE SENIOR DEPUTY PRESIDENT: Then their obligation would arise from the Australian workplace agreement, not from this agreement.
PN644
MR FELDMAN: Well, no, I beg to differ. I say that an Australian workplace agreement can be read in conjunction with a certified agreement and both documents actually set down legal obligations on the parties.
PN645
THE SENIOR DEPUTY PRESIDENT: Which section of the Act - can you take me to it - which says when the certified agreement says it does not bind an AWA employee would enable you to bring the AWA employee back into the certified agreement?
PN646
MR FELDMAN: To bring an AWA employee back in?
PN647
THE SENIOR DEPUTY PRESIDENT: Yes. I mean, this agreement says quite definitely it does not apply to AWA employees. It’s not one of those agreements which leaves it vague. It says it does not apply.
PN648
MR FELDMAN: Well, I mean, I would point to section 170VQ(6).
PN649
THE SENIOR DEPUTY PRESIDENT: All right. Let’s go through it.
PN650
MR FELDMAN: That sets out the relationship between an Australian workplace agreement and a certified agreement.
PN651
THE SENIOR DEPUTY PRESIDENT: Yes. Right. 6(a):
PN652
A certified agreement prevails over an AWA -
PN653
So it will prevail over the AWA:
PN654
- to the extent of any inconsistency if the certified agreement is in operation at the time the AWA comes into operation.
PN655
Well, from the evidence I understand - - -
PN656
MR FELDMAN: That doesn’t apply.
PN657
THE SENIOR DEPUTY PRESIDENT: - - - that the AWA is already in operation?
PN658
MR FELDMAN: That’s right. There are some.
PN659
THE SENIOR DEPUTY PRESIDENT: And:
PN660
The nominal expiry date of the certified agreement is after the date on which the AWA comes into operation.
PN661
Don’t know about that. And:
PN662
A certified agreement does not expressly allow a subsequent AWA to operate to the exclusion -
PN663
Well, it does expressly allow, doesn’t it?
PN664
MR FELDMAN: Sorry?
PN665
THE SENIOR DEPUTY PRESIDENT: The certified agreement expressly allows a subsequent AWA to operate to the exclusion.
PN666
MR FELDMAN: It does. That’s right.
PN667
THE SENIOR DEPUTY PRESIDENT: So the certified agreement doesn’t prevail over the AWA for new employees? For extant employees it comes down to the nominal expiry date, doesn’t it?
PN668
MR FELDMAN: No, well, this is a mechanism that allows an Australian workplace agreement to be entered into after a certified agreement that would otherwise apply to those employees is entered into.
PN669
THE SENIOR DEPUTY PRESIDENT: Well, you have already got - all the AWA employees you have got, had AWAs before the certified agreement came into operation.
PN670
MR FELDMAN: I’m not aware, I don’t have instructions whether there were any subsequent AWA employees.
PN671
THE SENIOR DEPUTY PRESIDENT: Well, I think that was the evidence. I’m sure that was the evidence? We haven’t had - I think the evidence was we haven’t had any new AWAs since the agreement was certified.
PN672
MR FELDMAN: That’s correct. But the agreements which expressly allows for - it’s a separate question, your Honour. The agreement expressly allows Australian workplace agreements to be entered into in the future. And in terms of interpreting - - -
PN673
THE SENIOR DEPUTY PRESIDENT: Well, let’s deal with the people separately. Let’s deal with the past AWA employees, people had AWAs prior to the agreement being certified.
PN674
MR FELDMAN: Yes.
PN675
THE SENIOR DEPUTY PRESIDENT: Those people, there the AWA will prevail over the certified agreement, will it not?
PN676
MR FELDMAN: Yes.
PN677
THE SENIOR DEPUTY PRESIDENT: Okay. The post people are covered by 6A(3)(a). Their certified agreement - - -
PN678
MR FELDMAN: Yes.
PN679
THE SENIOR DEPUTY PRESIDENT: - - - so their AWA will prevail over the certified agreement.
PN680
MR FELDMAN: To the extent of any inconsistency.
PN681
THE SENIOR DEPUTY PRESIDENT: Yes. So I need to know what their AWA says, don’t I, to know whether they’re covered?
PN682
MR FELDMAN: In determining whether there was an inconsistency - - -
PN683
THE SENIOR DEPUTY PRESIDENT: Yes.
PN684
MR FELDMAN: - - - if there was a dispute, yes, you would.
PN685
THE SENIOR DEPUTY PRESIDENT: Yes. So the people who are beforehand - where’s the inconsistency between their AWA and the agreement?
PN686
MR FELDMAN: Well, it’s a question of firstly giving an interpretation to the agreement which is going to give it practical application moving forward for the life of the agreement, and to limit - also to look at what are the - what were the intentions of the parties in entering the certified agreement. If an interpretation is given which would limit that part of the certified agreement to purely employees who remain covered by the agreement, it would lead to potentially anomalies that were not the intention of the parties and - - -
PN687
THE SENIOR DEPUTY PRESIDENT: But it might lead to some inconvenience but what’s the anomaly?
PN688
MR FELDMAN: Well, the anomaly is that there could be employees who at one point were covered by this agreement who, because they chose to enter into an AWA are no longer eligible to participate in the consultative committee.
PN689
THE SENIOR DEPUTY PRESIDENT: Well, I can understand how that’s inconvenient. As to an anomaly they have different terms and conditions. What’s the purpose of a consultative committee which is designed to discuss matters between parties to the certified agreement when they’re not a party to the certified agreement in that instance?
PN690
MR FELDMAN: But it is - we would say that even the issues in that clause 31.1, in that that reference is to parties rather than employees does deal with a range of issues there that are broader than purely issues that would apply to employees who were engaged under the certified agreement.
PN691
THE SENIOR DEPUTY PRESIDENT: And the solutions might be different for those who are covered by a certified agreement and those who are covered by an AWA.
PN692
MR FELDMAN: Well, certainly not in relation to issues such as occupational health and safety. One would think that that would apply - that is an obligation that applies broadly to all employees and all staff engaged by the respondent.
PN693
THE SENIOR DEPUTY PRESIDENT: There may be a degree of difference. I mean, there may be a union demand in terms of occupational health and safety which exceeds minimum legislative requirements which the company may accede to for whatever reason to the certified agreement employees but not for the others. It’s not an area with which I’m overly familiar but, for example, that the health and safety represent, who is covered by the certified agreement will do nothing but health and safety issues.
PN694
MR FELDMAN: Yes, but that I would say is still a matter that could be dealt with by - would be an issue of relevance for all employees.
PN695
THE SENIOR DEPUTY PRESIDENT: The company might decide to treat them differently, just as they treat them differently on things like overtime.
PN696
MR FELDMAN: Well, their health and safety representative should be a health and safety representative of all employees, not a union health and safety representative.
PN697
THE SENIOR DEPUTY PRESIDENT: You might have a health and safety representative who is for the certified agreement employees and one who is for the AWA employees, both of which have different terms and conditions.
PN698
MR FELDMAN: That would be a different matter but just on occupational health and safety or - but we would say that that - as a hypothetical there are still, as was accepted by Mr Taylor, generic issues that affect all employees at the workplace for which they do need to consult, that there are generic issues.
PN699
THE SENIOR DEPUTY PRESIDENT: Yes.
PN700
MR FELDMAN: I don’t have any further submissions.
PN701
THE SENIOR DEPUTY PRESIDENT: Can I ask you about your discrimination aspect of your submission? Let me just turn it up. You allege contravention of 298K of the union’s interpretation to eligibility is given and you refer to 298K(1)(e) and 298L(h) alleging if one person was entitled to be a member of the consultative committee because they were covered by the certified agreement and AWA employees were not able to be, how is the circumstance any different to, let’s say, the evidence that was given on overtime, which is that one lot gets double time and the other gets time and a half?
PN702
MR FELDMAN: Well, it’s different in the sense that an employee who based on the union’s interpretation of the clause could be eligible to become a member of the consultative committee, and this is a, if you like, a new employee who was covered by the certified agreement, if they were elected to be on that consultative committee, if they then chose to enter into an Australian workplace agreement, taking the interpretation as is submitted by the union that that person by virtue of then entering into an Australian workplace agreement is then no longer eligible to be on that consultative committee, that that would be a detriment to that employee.
PN703
THE SENIOR DEPUTY PRESIDENT: Where’s the difference between “I’m entitled to double time when I’m the certified agreement and when I elect to go onto the AWA I’m on time and a half for overtime”.
PN704
MR FELDMAN: Well, there are issues of the employees - that the employee would be consenting to the entering into the Australian workplace agreement. It wouldn’t be the employee’s intention in deciding on separate wages and conditions that they would then be excluded from what is an avenue to consult with management on issues that are relevant at the workplace. That wouldn’t be an automatic intention. I mean, an Australian workplace agreement could be drafted that sought to retain - for future employees, for example, that sought to retain access by those employees onto the consultative committee, in which case - - -
PN705
THE SENIOR DEPUTY PRESIDENT: Well, that’s an interesting question about whether you can agree by an AWA to a committee which is established under a certified agreement.
PN706
MR FELDMAN: I couldn’t see a future Australian workplace agreement couldn’t seek to retain certain elements. If we look into new employees, looking prospectively, new employees are - - -
PN707
THE SENIOR DEPUTY PRESIDENT: If the intention - - -
PN708
MR FELDMAN: - - - initially engaged under the Australian workplace agreement could say - could seek to in fact - or even if there was a variation to existing Australian workplace agreements which in effect meant that they were new Australian workplace agreements.
PN709
THE SENIOR DEPUTY PRESIDENT: Well, just thinking off the top of my head, you and I as citizens reach an agreement whereby you allow me to drive your red sports car on every Sunday and you allow Mr Taylor as a passenger as well, subsequently down the track can you and Mr Addison agree that he’ll also be one of my passengers, pad into my agreement in effect without my consent.
PN710
MR FELDMAN: Well, in effect the parties to this agreement have agreed to an Australian workplace agreement retention clause.
PN711
THE SENIOR DEPUTY PRESIDENT: They haven’t - well they have agreed to an Australian workplace agreement, they haven’t agreed to its terms.
PN712
MR FELDMAN: No, but they have agreed to allow that clause to be included and by nature of - - -
PN713
THE SENIOR DEPUTY PRESIDENT: Where’s that? Where have they agreed to allow clause 31 to be included?
PN714
MR FELDMAN: I’m sorry, agreed to allow an Australian workplace agreement retention clause.
PN715
THE SENIOR DEPUTY PRESIDENT: Yes.
PN716
MR FELDMAN: And by virtue of agreeing to an Australian workplace agreement retention clause, it allows for an individual agreements to be made between the employer and the individual employees.
PN717
THE SENIOR DEPUTY PRESIDENT: I absolutely agree but where does it enable you and the individual employee to reach an agreement that imposes on the agreement that I have already reached with you?
PN718
MR FELDMAN: Well, that’s a provision of the Act, section 170VQ(6)(iii) which allows for an Australian workplace agreement.
PN719
THE SENIOR DEPUTY PRESIDENT: Assuming they’re covered in the first place.
PN720
MR FELDMAN: Sorry?
PN721
THE SENIOR DEPUTY PRESIDENT: Assuming they’re covered in the first place.
PN722
MR FELDMAN: Well, they would be covered in the first - I mean, that clause, that provision with in the Act it’s my submission does permit two industrial instruments to operate in conjunction and the Australian workplace agreement would vary the terms of the certified agreement to the extent that it sought to do so. But it could seek to retain certain clauses such as clause 31 in relation to the consultative committee and other clauses that Mr Allen identified in his evidence.
PN723
THE SENIOR DEPUTY PRESIDENT: So, clause 6.2(e) says that if you go to an AWA after you have been a casual employee for a while, that AWA is going to operate to the exclusion of this certified agreement. It’s a cover to field AWA, is it not?
PN724
MR FELDMAN: Well, that seeks to really define clause 170VQ(6)(iii) that indicates that it can prevail over a certified agreement to the extent of the inconsistency.
PN725
THE SENIOR DEPUTY PRESIDENT: Well, does it say both?
PN726
MR FELDMAN: Sorry?
PN727
THE SENIOR DEPUTY PRESIDENT: Well, you’re saying it says that this means that this instrument will operate to the exclusion of this agreement is saying the same thing as what’s in 170VQ(6)(iii), is it?
PN728
MR FELDMAN: That would be my submission, that that should be read in terms of the wording within 170VQ(6)(iii).
PN729
THE SENIOR DEPUTY PRESIDENT: Yes. So, which of the - but for current employees on AWAs, because we don’t have any of the 6.2 ones yet, as I understand it, which of the clauses of the certified agreement don’t apply to them, are inconsistent?
PN730
MR FELDMAN: Sorry, which - certainly we would say - I’m sorry, I haven’t gone through the certified agreement specifically looking at that particular question. But we would certainly say that the wording within, for example, clause 14.2, that made more express reference to “employed under the terms and conditions of this agreement” and subsequently in (b) and (c) that clause certainly would not apply to an employee who entered into an Australian workplace agreement.
PN731
THE SENIOR DEPUTY PRESIDENT: Is that it?
PN732
MR FELDMAN: I haven’t been through the agreement.
PN733
THE SENIOR DEPUTY PRESIDENT: Okay. Thank you. Is that it? Sorry, have you finished with your submissions?
PN734
MR FELDMAN: Yes.
PN735
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Feldman.
PN736
MR FELDMAN: Yes, your Honour.
PN737
THE SENIOR DEPUTY PRESIDENT: Mr Addison?
PN738
MR ADDISON: Just a couple of points. Your Honour, you touched on the 6(e) matter. We say it’s very, very clear in 6(e) that any AWA absolutely operates to the exclusion and in fact those last words in 6(e) - 6.2(e) make it clear what the intention of the parties is, and that is that the agreement be a very separate instrument to any subsequent AWAs. In that, in VQ(6), not that I’m particularly familiar with AWA territory, your Honour, but as I understand VQ(6)(a) to operate, each of the elements needs to be in place for any AWA to prevail.
PN739
The word between each of the subsections is “and”, it’s not “or”. So the certified agreement needs to be in operation at the time the AWA comes into operation and:
PN740
The nominal expiry date of the certified agreement is after the date on which the AWA comes into operation; and
PN741
The certified agreement does not expressly allow a subsequent AWA to operate to the exclusion of the certified agreement or to prevail over the certified agreement to the extent of any inconsistency.
PN742
Well, your Honour, in my submission that’s exactly what the certified agreement does. It excludes the AWA completely and a fair reading of clause 4.1(b) and 6.2(e), read together, in the context of the agreement, it adds to the operation of section 170VQ, in my submission.
PN743
With regard to some of the other matters that my friend just touched on, the health and safety issue we say is a red herring. There is an operating health and safety committee on the site, your Honour. Mr Taylor who gave evidence here this morning is in fact an elected health and safety representative on that committee. He’s wearing his AMWU health and safety rep badge with pride this morning, your Honour, and we say that’s a red herring that my friend put up.
PN744
With regard to the proposition that somehow that there’d be some discriminatory elements if an employee chose to pick up an AWA, then the employee would freely consent, one presumes, to excluding him or herself from the benefits of the certified agreement. Now, I don’t have a copy of the full Court decision of Burning Ports with me but in that decision the Full Court makes a comment that the operation of AWAs as opposed to certified agreements - and true it was in the context of offering employment rather than anything else. But the employee would choose to exclude him or herself from the operation of the certified agreement rather than have anything enforced upon him or her.
PN745
And it would be my submission, without fleshing out the company’s submissions further than they need to be, that you should disregard that submission of Mr Feldman’s. We say it’s not logical and it doesn’t fit with the law as the law currently stands. The law doesn’t say what Mr Feldman wants it to say, unfortunately for him. And I have nothing further, your Honour.
PN746
THE SENIOR DEPUTY PRESIDENT: Mr Feldman, can I ask you about 170VQ(6)(c). Have you got that in front of you? Yes.
PN747
MR FELDMAN: Yes.
PN748
THE SENIOR DEPUTY PRESIDENT: For the extant AWA employees, because we actually don’t have any 6.2 employees, are they covered by 170VQ(6)(c)?
PN749
MR FELDMAN: Yes, they would be.
PN750
THE SENIOR DEPUTY PRESIDENT: So they’re covered by - they’re not subject of the obligation in 31.5?
PN751
MR FELDMAN: As a non-consultative committee member they wouldn’t have that obligation.
PN752
THE SENIOR DEPUTY PRESIDENT: Even if they were consultative committee members they wouldn’t have that obligation, would they? Unless it’s written into their AWA.
PN753
MR FELDMAN: It would depend on the terms of Australian workplace agreement.
PN754
THE SENIOR DEPUTY PRESIDENT: But I don’t have any evidence in that regard.
PN755
MR FELDMAN: No.
PN756
THE SENIOR DEPUTY PRESIDENT: Can I ask you about 170VQ(6)(iii) and clause 4. Clause 4.1(b) purports not to bind AWA employees.
PN757
MR FELDMAN: I’m sorry, which clause?
PN758
THE SENIOR DEPUTY PRESIDENT: 4.1(b), purports not to bind AWA employees.
PN759
MR FELDMAN: Yes.
PN760
THE SENIOR DEPUTY PRESIDENT: So, it’s saying if I’m an AWA employee I’m not bound by this agreement. Can it do that under 170VQ(6)(a)(iii), or can it only do it to the extent of any inconsistency?
PN761
MR FELDMAN: This is where the intention of agreement is that because of the reference to clause 6 it actually retains - I mean, it’s clause 6 that makes reference to 170VQ(6)(iii). That’s why we say that clause 4 should be read. Sorry, I should also raise something that I haven’t raised previously and we have made the reference of the distinction between Australian workplace agreement employees and certified agreement employees but there is - I mean, it’s not clearly there is that section of employees who are initially of course when they’re engaged as casuals before they made a decision whether to elect or not, would clearly - of which there are a number who are currently engaged by the business, who obviously could become members of that consultative committee. We haven’t really dealt with - - -
PN762
THE DEPUTY PRESIDENT: I don’t think that’s disputed, is it, Mr Addison?
PN763
MR ADDISON: No sorry, your Honour, those employees are covered casual employee clause and they have a choice at the end of 3 months, you know, and they can choose to either be eligible for the consultative committee under the certified agreement or not, in my submission, your Honour. That’s entirely their choice.
PN764
THE SENIOR DEPUTY PRESIDENT: As I understand that submission it’s only at the point at which they become an AWA employee. They choose that, that instrument.
PN765
MR ADDISON: Your Honour, the agreement makes it clear that casual employees are employed under the terms of this agreement, the certified agreement.
PN766
THE SENIOR DEPUTY PRESIDENT: Yes.
PN767
MR ADDISON: In clause 6, I think it is, your Honour - just bear with me. Yes, clause 6.2, “Choice of industrial instrument”:
PN768
All new employees shall be employed initially as casual employees pursuant to clause 14.3 of this agreement.
PN769
So they clearly clarify “this agreement”:
PN770
If any employees are offered permanent employment following that period as a casual employee they shall have the choice of an industrial instrument which will cover their own ..... and employment.
PN771
Now, at that point in time if the employee is sensible then the employee will choose the certified agreement and go forward and at the proper overtime rates, et cetera. If not, then they will go under the terms of an AWA. And what comes with that is the same as the proposition I put earlier, your Honour, with regard to the Full Court’s view in Burley Ports. It’s really up to the employee to choose. If your Honour pleases.
PN772
THE SENIOR DEPUTY PRESIDENT: Yes. Mr Addison, as I understand your submission, 170VQ(6)(iii), you say that clause 4.1(b) in respect of - and 6.2(e) in effect expressly allow a subsequent AWA to operate to the exclusion of a certified agreement or prevail over a certified agreement to the extent of any inconsistency.
PN773
MR ADDISON: Well, your Honour, 6.2(e) says that if any employee chooses an AWA, as I read it.
PN774
THE SENIOR DEPUTY PRESIDENT: Yes.
PN775
MR ADDISON: And I think I wrote it, to be honest with you. But put that aside. As I read it:
PN776
Should the employee choose to be covered by an industrial instrument other than this agreement -
PN777
ie. an AWA -
PN778
- then section 170VQ(6)(iii) will operate.
PN779
Then it goes on to clarify what this means, that the instrument will operate to the exclusion of this agreement. So that’s an exclusionary clause, your Honour. It excludes and it completely divorces the AWA from the terms of this agreement. Even if there’s an inconsistency, it doesn’t matter, in my submission. The words are clear. The meaning is clear. It doesn’t lead to a ridiculous outcome, your Honour, in my submission, and the instrument should be read on its face. If a person is covered by an AWA then he or she is excluded from the terms of this agreement in my submission.
PN780
THE SENIOR DEPUTY PRESIDENT: Yes. Anything else, Mr Feldman?
PN781
MR FELDMAN: Only with that submission we could get into the situation where a future AWA does in fact seek to retain certain provisions of the certified agreement and we then have the situation of having to then interpret those instruments and how they apply in reference to each other.
PN782
MR ADDISON: That’s an argument we can have on the facts at that point in time. Those facts don’t exist, in my submission.
PN783
THE SENIOR DEPUTY PRESIDENT: Well, that gets back to my red car example which is can you by an AWA allow someone to be a party to a right which I have established with you without my consent?
PN784
MR ADDISON: That’s right.
PN785
THE SENIOR DEPUTY PRESIDENT: I mean, as I understand the union’s argument it is they as of right can establish a consultative committee. Can you by an AWA say an AWA employee can also be on that consultative committee?
PN786
MR FELDMAN: We would say yes because the certified agreement does allow for - which is an agreement between the parties, allow for an Australian workplace agreement to be entered into and that Australian workplace agreement would have the terms that are negotiated or agreed between those parties and so they are - - -
PN787
THE SENIOR DEPUTY PRESIDENT: Between which parties?
PN788
MR FELDMAN: Sorry, the parties to the Australian workplace agreement. So it is an enabling clause that the union have agreed to by allowing the employer to retain a right to make Australian workplace agreements.
PN789
THE SENIOR DEPUTY PRESIDENT: But the agreement between you two doesn’t go to the terms and conditions of the AWA, does it?
PN790
MR FELDMAN: No, it doesn’t but it does allow the employer to enter into Australian workplace agreements with individual staff.
PN791
THE SENIOR DEPUTY PRESIDENT: Yes, I know that.
PN792
MR FELDMAN: So the union has agreed to that so they have given the company some discretion in relation to what - - -
PN793
THE SENIOR DEPUTY PRESIDENT: So, they have said, “You can go away and make your own deal with employees” but they haven’t gone so far to say, “By the way, you can make a deal with gives them my rights as well”.
PN794
MR ADDISON: That’s right.
PN795
MR FELDMAN: Well, we say it does because of that definition of “employee” as definition in the agreement could cover those people, people who are covered by an Australian workplace agreement in the future.
PN796
THE SENIOR DEPUTY PRESIDENT: Yes, okay.
PN797
MR ADDISON: Your Honour, there’s authority on that point. I can’t remember the case entirely but it’s a case called ..... and it’s against a Japanese company and I can’t tell you - remember the name of the Japanese company but it was decided by the then President of the Appeal Court in New South Wales who was, at that point in time, Kirby J, who is now of course in the High Court. The argument there was with regard to an agreement between the two parties that at some future point they would make an agreement in good faith and the argument went that they were then banned by that previous agreement to enter into agreement in good faith at some time in the future.
PN798
Well, the Appeal Court found that that was nonsense, absolutely nonsense. You just couldn’t do that.
PN799
THE SENIOR DEPUTY PRESIDENT: Couldn’t agree to agree.
PN800
MR ADDISON: You couldn’t agree to agree. That’s correct, your Honour.
PN801
THE SENIOR DEPUTY PRESIDENT: I’m not sure that it’s on the same point but - - -
PN802
MR ADDISON: And analogous in my submission, your Honour. Your Honour, before we finish, this matter arose out of a previous matter and that was the matter of the overtime roster and you’ll recall, your Honour, on the last occasion we started that we didn’t get - because this matter arose and this matter needed to be determined. I’m just wondering if you intend to sit the overtime roster matter in the near future?
PN803
THE SENIOR DEPUTY PRESIDENT: Not in the near future.
PN804
MR ADDISON: It’s just on my submission, your Honour, the union members are missing out.
PN805
THE SENIOR DEPUTY PRESIDENT: Yes, sure.
PN806
MR ADDISON: And you’ve heard some evidence about one of the reasons this morning.
PN807
THE SENIOR DEPUTY PRESIDENT: Well, it could be set down but I can’t do it. Do you wish me to refer it to another member?
PN808
MR ADDISON: I’m in your hands when it comes to that, your Honour. I prefer you to hear it because you have got a familiarity with it but - - -
PN809
THE SENIOR DEPUTY PRESIDENT: Well, I can’t hear till mid-October.
PN810
MR ADDISON: It might be better if you did refer it, your Honour, if your Honour pleases.
PN811
THE SENIOR DEPUTY PRESIDENT: Very well. I will reserve my decision on this matter. I now adjourn.
<ADJOURNED ACCORDINGLY [1.02PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #AMWU1 OUTLINE OF SUBMISSIONS BY AMWU PN6
EXHIBIT #R1 OUTLINE OF SUBMISSIONS OF FLEETWOOD PORTABLES T/AS RAINBOW TRANSPORTABLE HOMES PN7
MARCUS JAMES TAYLOR, SWORN PN11
EXAMINATION-IN-CHIEF BY MR ADDISON PN11
EXHIBIT #AMWU2 WITNESS STATEMENT OF MARCUS JAMES TAYLOR PN19
EXHIBIT #AMWU3 LETTER OF COMPLAINT FOR AND ON BEHALF OF SHOP STEWARDS RE CONSULTATIVE COMMITTEE PN30
CROSS-EXAMINATION BY MR FELDMAN PN78
RE-EXAMINATION BY MR ADDISON PN172
THE WITNESS WITHDREW PN228
DEREK LAURENCE ALLEN, SWORN PN236
EXAMINATION-IN-CHIEF BY MR FELDMAN PN236
EXHIBIT #R2 WITNESS STATEMENT OF DEREK LAURENCE ALLEN PN244
CROSS-EXAMINATION BY MR ADDISON PN245
RE-EXAMINATION BY MR FELDMAN PN359
FURTHER CROSS-EXAMINATION BY MR ADDISON PN425
FURTHER RE-EXAMINATION BY MR FELDMAN PN495
THE WITNESS WITHDREW PN534
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