C2005/5425, Transcript of Proceedings [2005] AIRCTrans 2392 (25 November 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 13477-1

SENIOR DEPUTY PRESIDENT ACTON

C2005/5425

PACCAR AUSTRALIA PTY LTD
AND
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
s.127(2) - Appln to stop or prevent industrial action
(C2005/5425)

MELBOURNE

8.37AM, MONDAY, 14 NOVEMBER 2005

PN1

MR D THOMPSON: I seek leave to appear on behalf of the applicant.

PN2

MR A COLE: I appear with MR L TAKACS for the Australian Manufacturing Workers Union.

PN3

THE SENIOR DEPUTY PRESIDENT: Is there objection for the application for leave to appear?

PN4

MR COLE: There is not, your Honour.

PN5

THE SENIOR DEPUTY PRESIDENT: Leave is granted. Mr Thompson?

PN6

MR THOMPSON: Thank you, your Honour. Your Honour, the respondent is a manufacturer of trucks that trades under the name of Kenworth Trucks and it has two relevant business and this morning I am here to apply to seek orders under section 127 in relation to both of those businesses. The first one is the applicant's truck manufacturing plant located at 64 Canterbury Road, Bayswater and the other division is the truck parts division and warehouse located up the road at 20 Canterbury Road, Bayswater.

PN7

Your Honour, I seek orders under section 127 as outlined in the application and draft order namely that there be no industrial action by employees of the applicant in relation to the trades hall protest rally scheduled for tomorrow, Tuesday
15 November and secondly an order preventing the AMWU vehicle division from authorising, directing or encouraging any industrial action in relation to that particular protest rally. And your Honour as you're aware, there are essentially three relevant matters under section 127 that need to be satisfied.

PN8

Firstly that industrial action is threatened, impending or probable. Secondly that the industrial action is in relation to one of three things and in this case I submit, your Honour, the action relates to the third item being section 127(1)(c) that the work is regulated by an award or a certified agreement. In this case, your Honour, as is outlined in the applicant's applicants there are two awards and two certified agreements that regulate the work being performed. One award and one agreement relating to each particular business so the Kenworth Trucks business has the Kenworth Trucks Enterprise Bargaining Agreement 2003 as well as the Vehicle Industry Kenworth Trucks Award 1998 applying to it.

PN9

And in relates to the parts business that has the certified agreement being the PACCAR Parts Trucks Enterprise Bargaining Agreement 203 and the relevant award is the Vehicle Industry PACCAR Parts Award 2002. Both of those certified agreements, your Honour, applying to each workplace are still in force. They have a nominal expiry date of 30 June 2006. So consequently, your Honour, it's the applicant's submission that that leg of section 127 is satisfied that there is work regulated by an award or a certified agreement.

PN10

The third item that your Honour you must be satisfied on is that the Commission is persuaded to exercise its discretion in favour of making the order. In relation to the first and third items I seek leave to call a witness, Mr Robert Brierley, the human resources manager of the applicant.

<ROBERT LLOYD BRIERLEY, AFFIRMED [8.41AM]
<EXAMINATION-IN-CHIEF BY MR THOMPSON [8.42AM]

PN11

MR THOMPSON: Now, Mr Brierley, would you mind repeating your full name again please?---Robert Lloyd Brierley.

PN12

And your address?---(Address supplied).

PN13

Perhaps to make it easy for the Commission if when you give your answers if you face, her Honour?---Sorry.

PN14

What is your position at PACCAR Australia?---Human resources manager.

PN15

And how many years have you been at PACCAR?---Four and a half years.

PN16

And have you been human resources manager all of those four and a half years?
---No about 18 months, prior to that I was employee relations manager.

PN17

Thank you. Now are you aware Mr Brierley of any proposed meetings of employees at both Kenworth Trucks and PACCAR Parts to discuss the Federal Government's proposed industrial relations changes?---Yes I was requested by our senior delegate at Kenworth Trucks for permission to arrange for a paid union meeting to be taking place on the 14 November.

PN18

That's this afternoon?---That's this afternoon. The purpose of which would be an information session to the members regarding proposed changes and also the election of an afternoon shift union delegate and possibly the election of a safety representative.

PN19

THE SENIOR DEPUTY PRESIDENT: So the election of union delegate?---Yes.

PN20

And a health and safety rep?---Correct.

PN21

MR THOMPSON: Now are you aware of the venues and times of those particular meetings?---Yes the day shift will have a union meeting from 3.30 pm until 4 pm and the afternoon shift will have a meeting at 4.30 pm until 5 pm.

PN22

And this is at Kenworth Trucks?---Correct. Arrangements have been arranged for employees of the PACCAR Parts warehouse to attend the 3.30 meeting.

**** ROBERT LLOYD BRIERLEY XN MR THOMPSON
PN23

And how many employees are there at both of those divisions roughly?---There are approximately 330 in the Kenworth factory and about 25 in the warehouse at PAACAR Parts.

PN24

Thank you. Mr Brierley, are you aware of any proposal to put a vote to these meetings concerning attendance at the trades hall protest rally tomorrow?---Yes I was notified by the senior delegate on Tuesday that at the meeting a vote would be held to propose to take action or protest action the following day to attend the day of protest.

PN25

THE SENIOR DEPUTY PRESIDENT: Who was the senior delegate?---Mr Les Takacs.

PN26

MR THOMPSON: Mr Brierley, has the company put a proposal to the union delegates at both Kenworth Trucks and PACCAR Parts in an attempt to avert large numbers of employees taking industrial action tomorrow?---Yes. There was a similar day of protest back in June. At the time an agreement had been or I suppose established where the local union delegates would attend the rally on behalf of the employees of both the factory and the warehouse and it would be - it's paid time supported by the company. In this instance Mr Takacs was of the impression that that would not be an acceptable arrangement when I proposed instead that perhaps representatives from each department, one representative from each of the 10 departments in Kenworth and one from the warehouse attend as paid time by the company, the indication was that that would not be supported.

PN27

When you say representative of each department, how many departments are there?---There are approximately 10 in the factory and one at the warehouse.

PN28

So that would mean how many people under your proposal would be authorised to attend the rally on a paid basis?---If you include the delegates then there would probably be 14, 11 employees and 3 delegates.

PN29

And what's the break up between Kenworth Trucks and PACCAR Parts there?
---About 12 from Kenworth Trucks and two from PACCAR Parts.

PN30

Thank you. Mr Brierley, does the company support the role of employees to express their opinion on these - on the government's proposed industrial relations changes?---Yes, the company considers that any - all citizens have the right to take whatever action they think is appropriate. The point of view that we're trying to indicate to our employees is that there are other ways in which protest action can be taken without the need for industrial action to be taken.

**** ROBERT LLOYD BRIERLEY XN MR THOMPSON
PN31

And in considering that right is that the reasoning behind the company's offer that it made concerning the attendance of up to 14 people on a paid basis?---Correct.

PN32

Have you had a response to that offer in terms of discussions with the union delegates both at Kenworth Trucks and at PACCAR Parts?---I can't say directly from PACCAR Parts only indirectly the response that I'd received through the warehouse manager was that the vote would not be put from the local delegate at PACCAR Parts.

PN33

When you say the vote would not be put you mean the company's proposal would not be put?---The proposal would not be put, sorry, yes, and that within Kenworth the response that I had received that it would not be supported the proposal that we were putting.

PN34

THE SENIOR DEPUTY PRESIDENT: Sorry, what would not be supporting?
---The proposal of offering a delegation would not be supported.

PN35

By whom?---By the union and the workforce.

PN36

All right?---On behalf of the workforce.

PN37

So who told you that?---Mr Takacs.

PN38

MR THOMPSON: So, Mr Brierley, what is your understanding of the consequences of that if the company proposal is not supported. What do you believe the consequences will be?---It is our understanding that a vote will be put to the workforce and that the workforce will be encouraged to vote in the majority to support taking the day off tomorrow. The consequence from the factory's point of view is that some nine trucks will not be manufactured that day and as a result customers' orders will not be fulfilled and this is at a time when fuel prices have been persistently high and that there's a fair of instability in the truck industry. Specifically we manufacture trucks that are mainly used for the mining industry and the transport industry particularly the transport of most goods around the countryside. We deal mainly in the heavy truck industry and so therefore we have a significant market share in excess of 60 to 70 per cent for that particular type of truck that is being manufactured. That sort of action taken where we are not able to construct those nine trucks means that the customers may be inclined to, in the current environment, either cancel their current orders which has a two or three lead time or alternatively seek to purchase trucks that might be imported in a shorter time frame.

**** ROBERT LLOYD BRIERLEY XN MR THOMPSON
PN39

Thank you. Now I might come back to that issue in a second. Just one other issue, are you are aware of whether any arrangements have been made to transport company employees to the rally tomorrow?---It's my understanding that at least five buses will be arriving just outside the factory tomorrow morning.

PN40

Are you ware who's arranged for that transport?---It's my understanding the AMWU have arranged for those buses to arrive.

PN41

THE SENIOR DEPUTY PRESIDENT: How do you understand that?---I wasn’t directly advised by the union delegate about whether the AMWU organised it but I was certainly informed that the buses would be available tomorrow.

PN42

Well by whom?---By Mr Takacs. I don’t who has been specifically arranging for them but it was an indication certainly from others in the factory who had been informed that AMWU were organising.

PN43

Who others?---I spoke to an employee in the factory who works in the paint department.

PN44

Well who - the name?---Yes. Mark Tait, he is a team leader.

PN45

And he told you what?---He told me that it was his understanding that there would be five buses at the arranged - available tomorrow morning to pick up employees to attend the rally.

PN46

So is it an assumption by you that the AMWUs organised it?---Yes, that's correct. It's an assumption.

PN47

MR THOMPSON: Sorry, your Honour, have you finished?

PN48

THE SENIOR DEPUTY PRESIDENT: Keep going.

PN49

MR THOMPSON: So, Mr Brierley, if five bus loads of employees were picked up to attend the rally what would be the impact, the likely impact on your production, would that mean that there would be no production for the day?
---Most likely because at least 150 employees would be able to fit into those five buses.

PN50

THE COMMISSIONER: So how many you have?---300 employees in the factory.

**** ROBERT LLOYD BRIERLEY XN MR THOMPSON
PN51

Yes?---But the tendency has been whenever industrial action has been taken its usually been one of, one employee all employees are out.

PN52

Yes, but how many - you have a couple of shifts?---Yes, we do. Mainly a day shift and then we have a very small afternoon shift.

PN53

So how many work on the day shift?---Approximately 300.

PN54

And how many on the afternoon shift?---Approximately 30.

PN55

And the day shift is from when?---7.30 in the morning until 4 pm in the afternoon.

PN56

And the afternoon shift?---It commences at 4.30 in the afternoon and finished
1 o'clock in the morning.

PN57

There is no overlap?---No.

PN58

In fact there's a half hour break?---Correct.

PN59

Okay.

PN60

MR THOMPSON: Mr Brierley, is it your belief that industrial action is going to happen tomorrow?---Yes, more than probable.

**** ROBERT LLOYD BRIERLEY XN MR THOMPSON
PN61

All right. Now just looking at the possible or the potential consequences of the action for the company, would you mind just mentioning a little bit to the Commission about the recent history at Kenworth Trucks concerning sales orders?---Okay. Well for some time sales orders were very strong and we had been at a record build rate. However since about July coinciding with an increase in fuel prices, sales orders have dropped off. It required us to retrench some 60 employees within the Kenworth factory on the 28 October and in fact sales order were sufficiently soft that we could have potentially retrenched 90 employees from the factory. Instead we chose to take, I suppose what you would call a gamble in the sense that we chose to take three days production as annual leave coinciding with Melbourne cup so the following three days, the Wednesday, Thursday and Friday of that week which I think was the 2nd, the 3rd and the 4th of November. That enabled production of some 33 trucks not to be built and therefore pushed the backlog back sufficiently into 2006 in the hope that that would encourage customers to then want to purchase our trucks. Quite often customers consider whether the truck is manufactured in the 2005 years versus the 2006 years and are more inclined to at this time of the year hold off until they know for sure that trucks can be manufactured in the 2006 year. In the hope that that would be then create stimulus for customers to want to purchase more trucks and therefore enable us to maintain the build rate at the lower rate from what had happen 11 trucks a day down to nine trucks a day.

PN62

And is the reliability of being able to deliver trucks on time to customers an important factor in encouraging future sales orders?---Absolutely in fact one of our measures is delivery reliability and we try to ensure that each day we are 95 per cent or greater in terms of reliability of being able to deliver those nine trucks a day.

PN63

So, Mr Brierley, I appreciate you don’t have a crystal ball but if production is totally lost tomorrow, what do you believe could be the possible consequences for sales orders?---At the moment because of persistently high fuel prices customers certainly are more inclined to hold off from purchasing the trucks and I guess that customers have to make a decision about whether they choose to purchase our trucks or whether they choose instead to purchase imported trucks. And the timing of the arrival of those trucks is important in their consideration and any delay in the delivery or reliability of the trucks then puts doubt in the mind of the customers as to whether they should be purchasing product versus perhaps our competitors' products. So the risk is that, one, the customers may choose not to purchase our trucks and, two, those customers that have put in a order for our trucks if they understand that there will be delay in the delivery when we've commitment to deliver they may possibly cancel that order.

**** ROBERT LLOYD BRIERLEY XN MR THOMPSON
PN64

THE SENIOR DEPUTY PRESIDENT: Hang on, let's assume for the purpose of this question, that there is going to be industrial action tomorrow, we suggesting that one day of industrial action is going to lead people to change their mind about whether they continue with their order for a Kenworth truck?---Yes I am.

PN65

What basis do you say that?---On the argument that delivery reliability is important to our customers and that the alternatives available to them in a non tariff bound market is that they could - our trucks are some - they are more expensive than our imported competitors' trucks and therefore that's just another consideration in terms of whether they purchase our trucks. We put a lot of pride in the fact that we can deliver on time as when the customer wants it and that we have reliability in our delivery and that customers have grown to know that we are a company that will deliver and we are reliable.

PN66

So what evidence do you have to base the statement that one day of work not being done would lead to the cancellation of orders?---I don’t have anything in writing if that's what you mean by evidence, except to say that I've spoken to our director of sales and marketing and it's on his judgment based on discussions that he's had with customers and dealers that industrial action would lead to further uncertainty and doubt about our capacity to deliver.

PN67

Are you talking about industrial action in general or tomorrow's industrial action?
---No specifically tomorrow's industrial action but I mean I don’t have any evidence in writing.

PN68

I am having difficulty understanding this concept, people have ordered trucks?
---Yes.

PN69

They are going to cancel that order, you're saying, because of industrial action tomorrow, where else are they going to get a truck from?---They can order from our competitors who import.

PN70

Well they can order?---They can purchase.

PN71

But that's going to be a further delay isn’t it?---We've got customers who can purchase trucks that are currently sitting in competitors' dealer yards now ready to go whereas because what usually happens is that in the case of a couple of our competitors, Western Star, for example, have well and truly over ordered in terms of the number of stock that they have available in their dealerships and so therefore a readily available Western Star which looks a bit like a Kenworth and designed for similar applications could be purchase instead of a Kenworth.

**** ROBERT LLOYD BRIERLEY XN MR THOMPSON
PN72

So if you don’t production tomorrow you will lose one day?---Yes we will.

PN73

Does that mean the trucks will be one day late?---Correct.

PN74

Okay. So when I order a truck, do I have to put down a deposit or something?
---No, not necessarily.

PN75

Okay. Where I order a truck from?---Through a dealership.

PN76

Okay so I go into the dealer and I say I want a Kenworth truck?---Yes.

PN77

And he says it will be delivered on - - -?---A particular date.

PN78

On a particular date. What would the normal lead time be?---Currently I think it's around about 10 or 11 weeks.

PN79

Okay. So if I walked in - - -?---Some time in January probably.

PN80

Okay. So if I walked in 11 weeks ago?---Yes.

PN81

I could expect it on say, Wednesday?---Yes.

PN82

Okay. And do you ever have any other reasons why you're delayed in producing them? What other reasons would there be that I wouldn’t get it on Wednesday?
---There is usually not - I mean that's the reason why we have a specific indicator which is delivery reliability, 95 per cent or greater.

PN83

So I turn up on Wednesday and saying here I am to get my truck and the dealer says, not here because they were on strike yesterday but it will be here tomorrow, Thursday, I then walk out and go and buy another truck do I?---It's possible. They may well, yes, it's possible.

PN84

It's not likely, is it?---It's not highly likely but it is possible and more importantly, what we're looking at is in terms of customers' expectations about reliability not only on that day, but in the future as well. And they may decide that they will purchase a truck in future from a company that they know that they can get rather than have the disappointment of on that occasion, the truck not being delivered on the date as requested or as required.

**** ROBERT LLOYD BRIERLEY XN MR THOMPSON
PN85

It's more likely to be though the truck performs over the next x number of years that I've got it as to whether I decide, well - - -?---That's a factor.

PN86

It's more likely isn’t it that's going to be weighing in your mind than one day's delay?---Not necessarily it depends - the mining industry and the transport industry when they want a particular truck they want it now, they want it because that's a day's loss of income from their point of view.

PN87

Aren't your trucks better than other trucks?---We'd like to think so.

PN88

Well are they?---Well that's for customers to decide. We obviously have a better market share than our competitors so if that's an indication, yes.

PN89

Yes. Yes, Mr Thompson?

PN90

MR THOMPSON: Yes, your Honour. Mr Brierley, you're talking mainly there about the possible impact on existing orders with some brief reference to future orders but if there is an action tomorrow that delays the delivery of trucks do you believe that that will have an impact on future customer orders?---Yes. Basically the answer is yes. I mean, at the end of the day our customers - we've tried to build a reputation of being able to deliver on time as customers expect and any delay in the delivery of our trucks will create negative sentiment towards our reputation.

PN91

And is that view of yours based on input from the director of sales and marketing?---Correct.

PN92

All right. Now as well as Kenworth Trucks with the other division PACCAR Parts, what would you say about the consequences of PACCAR Parts not being operational tomorrow?---Well in the case of general parts it probably won't have a big impact except that we have what are known as vehicle off road deliveries and VORs are ones where we give a commitment to our customer to be able to ensure that a part is delivered the same day. Quite often you'll have a scenario where a truck has broken down at the back of Queensland somewhere, a road train, and they will be carrying cattle and obviously the down time of that truck creates a lot of discomfort from the point of view of the transport owner and their vehicle and so therefore a VOR is then put out which is a request for an immediate part to repair the break down of the truck and it's obligation, our commitment, that we will then through our warehouse deliver that part and so therefore a day's longer break down creates more cost to the customer and potentially damage to the produce that's being transported.

**** ROBERT LLOYD BRIERLEY XN MR THOMPSON
PN93

And so if industrial action is taken tomorrow, PACCAR Parts and you have the sort of emergency you're talking about in a remote area?---We would not be able to deliver the VORs.

PN94

And what impact do you believe that would have on the company's reputation then?---Well again because we give a commitment that we will deliver on the same day, those emergency parts, I guess ultimately the customer might think twice about purchasing the parts from us. Most of the parts that we supply can be obtained from other sources and it would then mean that possibly customers would divert their purchases from us to another company.

PN95

Thank you, Mr Brierley. I have no further questions, your Honour.

PN96

THE COMMISSIONER: Hang on, cross-examination.

<CROSS-EXAMINATION BY MR COLE [9.07AM]

PN97

MR COLE: Thank you, your Honour, I thought he was going to get away from me for a sec. Mr Brierley, you've been at Kenworth/PACCAR for how many years?---Four and a half.

PN98

In your time at Kenworth, we'll use the word Kenworth, have you come across a situation where there's been unprotected industrial action taken against the company?---There was industrial action coinciding with the 2003 enterprise bargaining negotiations.

PN99

I am talking about unprotected industrial action?---Well at that time that was illegal and it was deemed not to be within the protection of the notice of intention to take industrial action and that was - - -

PN100

A documentary error, was it?---Well the Commission didn’t see it that way, I don’t think. The Commission did say that it was not - it did not fall within the notice of a protected action.

PN101

Okay. Well, we'll put that aside apart from that to your knowledge has there been any industrial action taken at Kenworth in the period of time that you've worked there?---None.

PN102

If I put it to you that there hasn’t been any and other than that you spoke of for eight years, would you accept that situation from your knowledge and knowledge from speaking to other - - -?---I can certainly speak for the four and a half years that I've been with the company.

**** ROBERT LLOYD BRIERLEY XXN MR COLE
PN103

In terms of the attitude of the employees to Kenworth and its operations, has that been helpful or has it been against the company?---Well our employees generally have been helpful towards the company, yes.

PN104

I put it to you that they have and I think the background, your Honour, is necessary for people to understand that in October this year, Mr Brierley, there was redundancies were there not?---Correct.

PN105

There were 65 redundancies?---61.

PN106

61 redundancies and there was no conflict with the union over those redundancies?---There have been no - as far as we know there's been no industrial action to be taken against those. We haven’t yet received any unfair dismissals so the answer is no.

PN107

And I put it to you that around Melbourne cup time that you sought to have the Melbourne cup week off and contacted the union about having the rostered day on the Monday and then the Wednesday to the Friday included as part of annual leave?---Correct.

PN108

Even though - and that was agreed to even though that you were one week short of the appropriate notice period as outlined in industrial instrument, is that correct?---I think it was more likely three days short, yes.

PN109

Yes. So the union has bent over backwards in terms of it's comment to trying assist the company in building its truck and maintaining its reputation?---It was in the interests of the union and the members to have that time taken off otherwise the risk would have been that we would have had to retrench an addition 30 employees.

PN110

Well you say that. Could you explain to me how that would be?---Yes, because there were two proposals that were basically put before our executive within the company. Proposal one was to reduce the build rate from 11 a day to nine a day and retrench some 60 employees and then take some annual leave. Proposal number two was not to take annual leave in that cup week and retrench 90 employees and reduce the build rate to eight per day because sale orders were actually running at closer to eight a day rather than nine.

PN111

When her Honour asked you a question about one day?---Yes.

**** ROBERT LLOYD BRIERLEY XXN MR COLE
PN112

You're saying that one proposal you were looking at was to go from 11 trucks, building 11 trucks a day down to nine a day?---Yes.

PN113

Or building 11 trucks a day to another figure?---Correct.

PN114

And you're saying that one day would have an impact on that. So in one hand you could drop down building two trucks a day but on the other hand if we have one day off it's going to have a severe impact on your company?---Yes it will, potentially, yes.

PN115

In the rally, the community protect rally in June this year, you agreed with the union to have a number of delegates off?---Yes.

PN116

And representatives from each area?---Not representatives from each area, no, we just at the time agreed that union delegates would be attending as paid leave.

PN117

And you say that you support the rights of workers to take protected protest action, take protest action over proposed changes, the legislation?---I support the rights of our employees or anyone within the community to express their point of view as far as any political actions just in the same way as I support them approaching their local parliamentarian and letting them indicate what their voting intentions might be if particular decisions are made in parliament.

PN118

So that can seem whether there is to be a stoppage of work at Kenworth or not, tomorrow in - at a time where probably the greatest attack ever on the rights of employees is about to be launched, you can understand some back lash?---It's not for the company to make a judgment call. We're simply trying to indicate here is that any decision that the union and the employees as a result of the union encouraging them to take time off is one against our agreement to not take industrial action during the course of our enterprise agreement. And, two, would lead to negative consequences for both the company and the employees and in our view the proposal to send a delegation of employees, not just the local delegates but one representative from each of the department on the company's paid time is a reasonable alternative way in which to do that without jeopardising the business of Kenworth and PACCAR Parts and also the livelihood of the employees that are employed there.

PN119

Well I put to you that the notion of having a delegation has not yet been ruled out, has it?---Well that was not the indication that was given to me by the local delegate and certainly was not the indication given to the warehouse manager by the local delegate within PACCAR Parts. That in fact that proposition would not even be put.

**** ROBERT LLOYD BRIERLEY XXN MR COLE
PN120

Well I put to you that - well Mr Takacs will put to the Commission after his version of events that when he asked for the meeting dates and times which I understand he is allowed under the industrial agreements which are a part of the company and they were agreed it was to allow the regional secretary of the union to come out and address the people, is that correct?---That is correct.

PN121

And that was at the request of the employees?---Well I don’t know whether it was at the request, it wasn’t indicated to us, it was just simply a case of Takacs said that he would like to have a paid union meeting on the 14 November and that the union secretary would be present to be able to provide information to the employees about the proposed industrial relations agreements.

PN122

I put to you that he also said that there would be no determination on whether there would be a delegation, or whether there would be more people going off work subject to that meeting taking place. Is that correct?---No, that's not correct. When the request was put to us it was simply on the basis that there would be a paid union meeting to provide information to the employees about the proposed industrial relations changes, an election of a health and safety representative and election of an afternoon shift union delegate and that was the only request. There was no proposal put.

PN123

So out of all of the discussions that you've had and it's basically been with
Mr Takacs in respect to the union?---Correct.

PN124

So fundamentally it rolls to Mr Takacs' word against yours?---No. I guess so except that it appears to be that that’s being supported by a commentary that’s been made between the warehouse manager at PACCAR Parts and the union delegate at PACCAR Parts.

PN125

Have you got any documentary evidence to support that?---I have an email from our warehouse manager.

PN126

Do you want to tender that? That ….. that I've handed up to you - her Honour
to - - -

PN127

THE SENIOR DEPUTY PRESIDENT: You might just show them to the witness for him to tell me what they are?---Right. The warehouse manager, Mr Kelso, sent me an email on Thursday 10 November, the subject Monday's union meeting. Robert when asked if there would be a proposal put to the meeting to send some representatives as previously the case to the Tuesday rally, the PACCAR Parts delegate said that it would not be put. That was basically what he had to say.

**** ROBERT LLOYD BRIERLEY XXN MR COLE
PN128

All right.

EXHIBIT #T1 EMAIL FROM MR KELSO TO MR BRIERLEY DATED 10/11/2005
EXHIBIT #T2 EMAIL FROM BRIERLEY TO MR THOMPSON CONTAINING VARIOUS OTHER EMAILS DATED 11/11/2005

PN129

MR COLE: Now in respect of T2 the email from Mr Kelso which outlines allegedly the shop steward has said that there wouldn’t be any vote taken on the delegation?---Correct.

PN130

But really if one understands the trade union movement that a resolution would come from the shop floor. It's not the shop steward's position to be able to determine whether or not a resolution is going to be put, is it?---Yes, but when you get your local delegate being very definitive about the fact that a proposal would not be put, given that we don’t run the union meeting, it's giving us a very clear indication that it's unlikely and certainly not probably that a proposal from the floor would be put for the alternative.

PN131

It's not probable?---Yes, not likely, not probable.

PN132

It's possible?---Not probable.

PN133

It's possible but not probable?---I would say it would be very unlikely because it was giving a very clear indication that it would not be put.

PN134

I would use the terminology possible. There's probably more the likes of industrial action - - -?---Possible is the most that I would give.

PN135

THE SENIOR DEPUTY PRESIDENT: Hang on. You are supposed to get the question and then we'll get the answer. Mr Cole?

PN136

And I'm saying, I'll put to you that it's more possible and probable that were would be an outcome at the meeting that would say that the troops are going to go off the job, what's your response to that?---It's more probable because the indication that was given to us was that was the intention of the meeting and that it's not the intention of the alternative which is the delegation.

PN137

My understanding the intention of the meeting is to brief -well its threefold, it's to brief the people on the proposed legislation and it's also as I understand it to have a couple of elections, is that correct?---That's part of the purpose of the meeting, yes.

**** ROBERT LLOYD BRIERLEY XXN MR COLE
PN138

So you know what our meeting is all about, you know more about our meeting than we do, is that correct?---On the basis of what has been indicated to myself from the delegates and through the warehouse manager we understand that agenda basically will be to discuss the proposed industrial relations changes and to have a vote put to take industrial action, to take the day of protest off.

PN139

What happens to that vote if that pan out that vote went down?---That is for a speculation.

PN140

Well it is speculation but it's improbable isn’t it?---But it's unlikely - well given the past history of the union meetings when a vote has been put it's usually been in support of - the majority in support of what the union position has been.

PN141

Put in the past history of eight years at Kenworth Trucks in respect to taking industrial action, I would say it would highly unlikely, wouldn’t you?---No.

PN142

So you've got eight years without industrial action apart from the one which we we'll have a little bit of a debate over no doubt, but even in the earlier rally this year there was no industrial action taken. So all of a sudden you can leap out of the blue and have industrial action - - -?---The difference was that in the prior meeting and previously a negotiated and agreed position had been established prior to the union meeting so what had already been established was the intent of the parties which was to send a delegation. In this case we're receiving a very clear indication from the local delegates that the intent will be to basically take tomorrow off.

PN143

So we've got 335 people saying we're going to take tomorrow off, 365 people saying we are going to take tomorrow off?---Well that's the intent of what the delegates and the union are proposing.

PN144

I put to you the union hasn’t put anything to the people?---Not yet.

PN145

All right. So the union hasn’t - Mr Takacs who is the senior shop steward hasn’t put anything to the troops, is that correct?---That's correct.

PN146

The other shop stewards that are here today haven’t put anything to the people, is that correct?---That's correct in that - - -

PN147

Sorry, just answer the question. Has the servicing organiser put anything to the people?---To say that they would be taking industrial action tomorrow, I don’t know.

**** ROBERT LLOYD BRIERLEY XXN MR COLE
PN148

All right, so you don’t know, so you know that none of the shop stewards have, okay, so there's no impending threatening or probably coming from the shop stewards. There's none coming from the organisation. Has there been leaflets out there saying that we are going to take industrial action tomorrow?---The indication was given very clearly to me that a vote was going to be put to take the day off and whatever is officially put in the form of a notice and what is the intent are two different things. Given also that it is in your own words, this is a highly emotional and important issue for the members , it would suggest to me that the intent is going to be more definite to try and take the protest action than otherwise not.

PN149

So you're saying that the union is going to go out there and the union is going to promote?---Yes.

PN150

Well it will be the first time I've seen it. I have no further questions at this stage.

PN151

THE SENIOR DEPUTY PRESIDENT: Mr Thompson?

<RE-EXAMINATION BY MR THOMPSON [9.27 AM]

PN152

MR THOMPSON: Yes, just one question, your Honour. Mr Brierley, based on the feedback you've received from the union delegate at Kenworth Trucks,
Mr Takacs, and the feedback you've received from John Kelso via that email that's been exhibited, do you believe that industrial action will happen tomorrow at both Kenworth Trucks and PACCAR Parts?---Yes.

PN153

No further questions, your Honour.

PN154

THE SENIOR DEPUTY PRESIDENT: Mr Brierley, the company's offer to send or give delegates paid time to attend and various other employees tomorrow, when was that decision made by the company?---Last Wednesday when it was indicated to us by the union delegate that a vote would be put to the workforce to take the Tuesday off.

PN155

And when did you become aware that there was to be a day of protest on the
15 November?---Probably a couple of weeks earlier.

PN156

Okay, and during cup week, was there a sort of scheduled rostered day off on the Monday previously?---No it was actually an annual leave day on the Monday prior to cup day.

**** ROBERT LLOYD BRIERLEY RXN MR THOMPSON
PN157

Okay?---So in other words four of those five days were taken as annual leave days or rostered days off if they had a rostered day entitlement.

PN158

Okay, and when was that decision about to make it effectively the week off?
---Probably some two to three weeks earlier than that. Around about - I'm just trying to think now, 28 October - would have been in the first week of October.

PN159

Right. So was there any consideration given to say, well let's work one day cup week because they may have the day off on the 15th?---Well at that point there was no - at that point in early October I was not aware that there was specifically going to be a day of protest action on the 15 November.

PN160

Right. When were the employees told about taking that full week off on cup week?---Around about the early part of October. It would be very early October, around about the time the decision was made by the company. So around about three, three and a half weeks prior.

PN161

Right. Was there any consideration given to changing the arrangement when you became aware that there was going to be some rally on the 15th?---No because erroneously perhaps we'd made an assumption that similar arrangements to what had taken place in June would take place and that a delegation would attend the rally if that rally were to take place without the need for the workforce to go out. The only indication we got that the workforce was more to take the entire day off was last Wednesday.

PN162

And is there likely to be any more forced annual leave or forced close downs between now and say Christmas?---It's not likely, no.

PN163

Have you got any others planned?---None planned, no.

PN164

Is there an RDO arrangement?---We have rostered days off which are scheduled a year ahead in that an individual employee knows a particular time of the month subject to sufficient accrual being available but they can then take that day off in that month. So it's staggered throughout the 20 days, working days, amongst the employees.

PN165

So do you have a close down at Christmas?---We do.

PN166

And when do you close down?---We close down, I think, last day of work is the 22 December and we are back, I think, on Monday 16 January. It's the Monday of that week any way, I think it’s the 16th.

**** ROBERT LLOYD BRIERLEY RXN MR THOMPSON
PN167

So you do have a claim close down?---Yes we do.

PN168

Right. And do you any other claim close downs throughout the remainder of the year?---No.

PN169

So the only claim close down you have is over the Christmas New Year period?
---Correct and customers are aware of that. They factor that into their order schedule. They know that we are back on the 16th. They know we break up on the 22nd.

PN170

Were the customers aware of the close down that was held in the cup week?---We notified them about the same time as we notified our employees, yes.

PN171

So about a month out?---Roughly, yes.

PN172

Whereas they would have ordered their trucks what - - -?---Two months prior to that. Yes, it would have been three months ahead of the actual date of delivery.

PN173

So did that lead to delays in delivery of trucks?---It did. Our customers weren’t all that happy about it but they understood in the circumstances that we were looking to try and protect a number of our employees at the same time, retain, you know, sufficient numbers of employees to ensure that on our projections that we would then be able to have a reliable capacity to deliver trucks.

PN174

So if I turned up for my truck on the Monday after cup week?---Yes, 7th.

PN175

I would have been told it's not here because we had close down last week?---We would have notified those customers on the 2nd, the 3rd and the 4th when they were due to expect to pick up their delivery. We would have notified those customers who would have otherwise been expected to pick up on the 7th, the 8th and 9th and thereafter. All the other customers for the orders that we already had received for pretty much the remainder of the year so we would have notified them of when the new schedule delivery, it would have been three days different from what had previously been the case. So while there was disruption to our customers on delivery, under the circumstances we tried to explain why did that and obviously some were not happy but accommodated that.

PN176

So that led to three days delay, tomorrow will lead to one day delay?---Correct, an addition delay.

**** ROBERT LLOYD BRIERLEY RXN MR THOMPSON
PN177

Did you also close down PACCAR Parts over that week?---No, we did not.

PN178

Right. Does PACCAR Parts also close down at Christmas?---No.

PN179

So that's a continuous operation?---Vehicle off road, particularly deliveries are more important in some respects than even delivery of trucks.

PN180

So that's 30 employees is it?---25, yes.

PN181

25 thank you. Thank you. Any questions arising? Your excused, Mr Brierley?
---Thank you.

<THE WITNESS WITHDREW [9.34 AM]

PN182

THE SENIOR DEPUTY PRESIDENT: I should indicate to you gentleman that I have another I have to attend at 10 o'clock for most of the day so you might want to consider what you want to do in light of that. There is a possibility of coming back at the end of the day. I just make you aware of it.

PN183

MR THOMPSON: Well, your Honour, I have no further witnesses to call up. I propose to provide a brief submission and that's it. I'm not sure about my friend.

PN184

THE SENIOR DEPUTY PRESIDENT: Are you calling any witnesses?

PN185

MR COLE: Yes I am. I am going to call Mr Takacs.

PN186

THE SENIOR DEPUTY PRESIDENT: Okay. Well let's hear your submissions.

PN187

MR THOMPSON: Thank you, your Honour. At the outset I'd make the comment that the applicant is in a no win situation here in that if we wait or the applicant waits until 4 or 5 o'clock pm this afternoon when there is definite evidence of industrial action then that is too late in time to make application to the Commission for the orders sought simply because at that stage because of the lateness of time the Commission will not be predisposed to making an orders given the difficulty of contacting employees.

PN188

But having said that, are the requirements under section 127 is not that there be definite evidence of industrial action but that industrial action is threatened, impending or probable and in my submission that has been established by the evidence of Mr Brierley. In particular the evidence in relation to Kenworth Trucks he indicated from the union delegate, Mr Takacs, that the company offer in relation to representatives attending the rally will not be accepted. And secondly at PACCAR Parts as evidenced by the exhibit that you have there that the company offer will not even be put to the meeting.

PN189

In the applicant's submission, your Honour, this demonstrates that industrial action is much more than a 51 per cent possibility. It is in fact a probability ad that is sufficient under section 127(1). Secondly, your Honour, in terms of the discretion that the Commission has in these matters, I put to the Commission that the potential damage to the applicant's business is clearly of more significance than the dollar figure in production lost or the nine trucks not produced on the day and instead the significance relates to the real potential for a drop in sales orders owing to unreliability of supply. This is bearing in mind that we're in the current climate as evidence has been given of sales orders dropping.

PN190

What that means is that a drop in sales orders will ultimately translate to a reduction in the bill rate of trucks and that in turn to a loss of jobs and this would already on the back of 61 redundancies having occurred just over a fortnight ago. Your Honour, if the order or if the Commission is predisposed to making an order the company's offer in relation to attendance at the rally still remains. That's the attendance of representatives of various departments and the union delegates on a paid basis.

PN191

In the alternative, if the Commission is not predisposed to making an order, then I submit, your Honour, that at the very least the Commission put out a statement along the lines of a statement put out by Commissioner Hingley in a similar situation back in June, the day before the 30 June protest rally in the case of Iveco Trucks and the AMWU Vehicle Division and others. The print reference for that is PR959431 and I might hand a copy of that to you if I can. Your Honour, I'd refer you to page 3 of that decision at the very end under the heading statement and there a statement was put out by the Commission that listed four points. Number one specified:

PN192

Any industrial action taken on Thursday 30 June 2005 in relation to the protest rally against proposed Federal Industrial Legislation will be unprotected and illegitimate action open to legal consequences.

PN193

Secondly it was stated that:

PN194

Illegitimate industrial action is not condoned by the Commission nor permitted as such under the Workplace Relations Act.

PN195

Thirdly it was stated that:

PN196

It clearly follows that the taking of such action as referred to above can have consequences for union members, officials and their organisations.

PN197

And finally the Commission commented that:

PN198

It has been submitted to the Commission in proceedings that such industrial action has the potential to significantly damage the company.

PN199

So that is the sort of statement, your Honour, that I would submit in the alternative if you're not prepared to make an order under 127 that be put. Thank you, your Honour.

PN200

THE SENIOR DEPUTY PRESIDENT: Mr Thompson, as I understand it, in
Mr Brierley's evidence was that when the closure of the plant over the cup week took place there was notice required to be given in accordance with the award and or agreements and that requisite notices wasn’t given. Is that your understand of the evidence?

PN201

MR THOMPSON: Yes, I believe that was the case, your Honour, and that was in the context of discussions that had been ongoing with the union over the previous couple of weeks in relation to redundancies that were to occur within the plant. And the background, as I understand it, for there being agreement to that absent of notice was that the reason that was to take place was to in an effort to safe 30 jobs at the plant.

PN202

THE SENIOR DEPUTY PRESIDENT: And was the agreement to the absent of notice given before the absence of notice took place or after?

PN203

MR THOMPSON: Your Honour, I understand that there was some discussions with the union about the possibility that some annual - there would be a request for some annual leave to be taken.

PN204

THE SENIOR DEPUTY PRESIDENT: Yes.

PN205

MR THOMPSON: Prior to the final decision being made on the redundancies but I am not sure exactly when the final agreement was made. Your Honour, my instructions are that that agreement was actually reached around the 8 October.

PN206

THE SENIOR DEPUTY PRESIDENT: This is the agreement to take the cup week of?

PN207

MR THOMPSON: To take cup week off, yes.

PN208

THE SENIOR DEPUTY PRESIDENT: The provision for notice, is that under the award or under the agreement?

PN209

MR THOMPSON: Under the award, your Honour.

PN210

THE SENIOR DEPUTY PRESIDENT: Right. Are all the employees Kenworth members of the union?

PN211

MR THOMPSON: No, I don’t believe so, your Honour about 90 per cent.

PN212

THE SENIOR DEPUTY PRESIDENT: Okay, so did the other 10 per cent give their consent to that arrangement?

PN213

MR THOMPSON: They weren’t formally asked for their consent, your Honour.

PN214

THE SENIOR DEPUTY PRESIDENT: Right. Thank you. Mr Cole?

PN215

MR COLE: Your Honour, I would like to call Mr Les Takacs. I would like a five minute adjournment, if possible.

PN216

THE SENIOR DEPUTY PRESIDENT: Yes, certainly. Look in the circumstances I - you see we've only 10 minutes. I must say that I'd be inclined to come back at 6 o'clock and here what was the outcome of the meetings to further proceed with these but it may be that the parties are interest in a interim decision but no-ones put that to me. What do you say, Mr Thompson?

PN217

MR THOMPSON: Yes, your Honour, I think we'd be very interested in a interim decision simply because by 6 o'clock the horse has already bolted in reality and nothing effective can be done at that stage.

PN218

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Cole?

PN219

MR COLE: I normally would not have a problem with an interim decision, your Honour, the whole question for us turns on the evidence of Mr Brierley viz a viz the evidence of Mr Takacs, who are the two people who are concerned and there is a conflict in the evidence as we see it.

PN220

THE SENIOR DEPUTY PRESIDENT: Yes, okay. I will adjourn briefly.

<SHORT ADJOURNMENT [9.44AM]
<RESUMED [9.51 AM]

PN221

THE SENIOR DEPUTY PRESIDENT: I have reached a decision on the interim order, it's as follows.

PN222

In this matter I am prepared to assume that jurisdictional prerequisites for the making of an interim section 127 order have been established. However I am not prepared to make an interim order in the exercise of my discretion. My refusal to make an interim order in the exercise of my discretion has been influenced by the fact that I am not persuaded by the company's arguments as to why I should exercise my discretion to grant the interim order. In this regard I have regard to firstly the company's initiated closure of their factory for several days over the cup week which is a longer period of impact on the company's current and potential customers than the one day closure that might be lost from tomorrow.

PN223

Secondly the unions and the employees willingness to accept that closure over the cup week at short notice notwithstanding the notice provisions in the award and thirdly the availability of spare parts from other sources from the company in the present instance. Those are my reason for refusing the interim order. I am prepared to sit at 5.30 to further this matter. Should the parties wish that to go ahead they should advise my chambers prior to that date. I will now adjourn.

<ADJOURNED INDEFINITELY [9.53 AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

ROBERT LLOYD BRIERLEY, AFFIRMED PN10
EXAMINATION-IN-CHIEF BY MR THOMPSON PN10
CROSS-EXAMINATION BY MR COLE PN96
EXHIBIT #T1 EMAIL FROM MR KELSO TO MR BRIERLEY DATED 10/11/2005 PN128
EXHIBIT #T2 EMAIL FROM BRIERLEY TO MR THOMPSON CONTAINING VARIOUS OTHER EMAILS DATED 11/11/2005 PN128
RE-EXAMINATION BY MR THOMPSON PN151
THE WITNESS WITHDREW PN181