C2005/5419, Transcript of Proceedings [2005] AIRCTrans 2411 (25 November 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 13407-1

DEPUTY PRESIDENT IVES

C2005/5419

VISYPAK VISY BOARD PTY LTD VISY PAPER PTY LTD VISY SPECIALTIES VISY RECYCLING
AND
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION-VICTORIAN BRANCH AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION-VICTORIAN BRANCH AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION-WESTERN AUSTRALIAN BRANCH AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION-WESTERN AUSTRALIAN BRANCH AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION-NEW SOUTH WALES BRANCH AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION-SOUTH AUSTRALIAN BRANCH
s.127(2) - Appln to stop or prevent industrial action
(C2005/5419)

MELBOURNE

2.56PM, FRIDAY, 11 NOVEMBER 2005

PN1

MR A DOUGLAS: I seek leave to appear for Visy Industries and with me is
MS C FORD, she's not here she's outside the room at the moment.

PN2

MR M ADDISON: I appear on behalf of the Australian Manufacturers Workers' Union together with MS J DICKENSON, MS J WALSH and
MR T MAVROMATIS.

PN3

THE DEPUTY PRESIDENT: You're working right up to the end are you
Mr Addison?

PN4

MR ADDISON: It looks that way.

PN5

THE DEPUTY PRESIDENT: Yes, Mr Douglas, given that I have had a look through the papers on this matter, I doubt that there's going to be much possibility of any conciliated outcome, but I wanted to raise that first of all as to whether there's any reasonable expectation could be held that if we went into conference for some period of time that the matters that are in contest here may be able to be resolved in conciliation before I get into any formal hearing of the application?

PN6

MR DOUGLAS: I expect that's right your Honour. We've had no indication from the union that there's any movement on these sites. The union may tell me something different now but I've heard nothing to date.

PN7

THE DEPUTY PRESIDENT: I don't want to waste a lot of time, it is Friday afternoon so if there isn't a possibility of movement, obviously you're holding your line Mr Douglas?

PN8

MR DOUGLAS: Yes I am your Honour.

PN9

THE DEPUTY PRESIDENT: Mr Addison?

PN10

MR ADDISON: Your Honour, we don't have a line to hold. No resolutions, no decisions have been made by members of the AMWU employed by Visy with regard to the matters complained of. Your Honour, a couple of things that I'd need to see, the first is we think the application that's before the Commission is improperly brought. It's an application that seeks to apply a global 127
nationally - - -

PN11

THE DEPUTY PRESIDENT: Let's not get too far into submissions Mr Addison at this stage, I was canvassing the possibility as to whether some time spent in conference might provide a resolution and it would appear to be, from what's been said, that that's not - - -

PN12

MR ADDISON: It might flesh out some issues your Honour, but your Honour, as I said the AMWUs made no decision with regard to the matters are complained of. There is no line for us to hold, I can put it in those terms.

PN13

THE DEPUTY PRESIDENT: All right thank you. I think on that basis we might just go forward. Mr Douglas.

PN14

MR DOUGLAS: Your Honour, I believe we've forwarded submissions to you, has your Honour had the opportunity to review those submissions?

PN15

THE DEPUTY PRESIDENT: Yes I have.

PN16

MR DOUGLAS: Submissions have also been provided to my friend.

PN17

MR ADDISON: Which I haven't read.

PN18

MR DOUGLAS: We have four witnesses your Honour. The first one is
Mr Stewart who is the national employee relations. He can give you a global overview of what's occurred. There's two human resources managers,
Mr Burraston and Mr Joyce who can say what happened across the factories and there's Mr Lymberis who is an operations manager at Warrick Farm site who can say what's happening on the ground. There is only one for which we have a witness statement because your Honour, things have moved too quickly to do much more than that. But if I could perhaps call Mr Stewart as the first witness.

PN19

THE DEPUTY PRESIDENT: Just before you do that, is there any intention on behalf of the AMWU to call any witnesses?

PN20

MR ADDISON: Your Honour, I was going to say this earlier, it's a very difficult application for the AMWU to grapple with on the basis that it is sought on a global basis across Australia. I've managed to get the Victorian delegate,
Mr Zwort who is subject to this application. We've had some brief telephone discussions with the other states, I've spoken to Mr McCarthy in Western Australia, Ms Dickenson spoke to New South Wales and South Australia with regard to it. We've got some indication from those states as to exactly what's going on. It would seem to me your Honour, it probably is appropriate if my friend wants to start his position in chief, that's fine I'm not really in a position to cross-examine even the evidence that my friend brings, only because as my friend has already said, things have moved fairly fast since the matter was notified late yesterday afternoon.

PN21

Now, your Honour it seems me that the Act would require my friend to demonstrate the jurisdictional prerequisites and then satisfy the discretionary matters only to each individual site. Justice Monroe certainly approached a similar application to this ..... 2003, brought by the Australian Industry Group, with regard to a global 127 and a global 170MW application. He approached it on that basis, each plant - the Commission needs to be satisfied that the elements are in place in each individual plant. It seems to me your Honour, the way the matter is progressing this afternoon, the AMWU won't be given an opportunity to respond to whatever my friend puts. That would require me to get instructions from the various states.

PN22

Depending on what the evidence is that is brought, I'd seek your Honour if it's appropriate, one of two courses of action. Either this application be resubmitted by my friend under direction from yourself and be heard in four separate states so that the jurisdictional prerequisites can be properly tested in Western Australia for instance, with regard to the Western Australian plants in a proper manner in Perth, similarly, in New South Wales, Victoria and South Australia. That's the first option. The second option would seem to me to give the AMWU a fair and reasonable opportunity that my friend proceed with his case in chief today - this afternoon, and I take instructions over the course of the weekend and then we resume on Monday. That would seem to me to be a fair basis to proceed. your Honour. There the submissions I make with regard to that.

PN23

THE DEPUTY PRESIDENT: What do you say to that Mr Douglas?

PN24

MR DOUGLAS: Your Honour, about 9 o'clock yesterday we sent a letter out to the AMWU, to every single person involved saying video conferencing facilities would be available if they would approach it quickly. I don't understand whether any application has been made for that, but I made enquiries and that's the reason I asked for the matter to stay at 3 o'clock to assist. I can prove it's been sent to every single group, every single person there. You haven't seen it because I didn't send it to you. We then re-sent everything again at 3 o'clock. We've allowed - effectively the AMWU have known throughout Australia since 9 o'clock yesterday, that this application was being brought on. We had done everything to be fair, including we could have brought this one earlier to try and spring a trap as it were, we've gone out of our way to avoid that.

PN25

THE DEPUTY PRESIDENT: Yes, I intend to go ahead this afternoon
Mr Addison. I'm aware that what Mr Douglas says is correct because the Commission was served with the documentation at the same time and the opportunity for video link up was in fact investigated by this Commission as early as yesterday. So, I think there has been ample opportunity, Mr Addison, for the AMWU to one, have availed itself of that technology had it wished to do so and two, to have provided the appropriate instructions, had it not wish to do so.

PN26

MR ADDISON: Well, as I said your Honour, I haven't seen that letter. Maybe that's an administrative error within my organisation, these things happen from time to time. I can only say I haven't seen that correspondence, I wasn't aware of that position. I can only press on your Honour what I've already put. I hear what your Honour says and I have no choice but to proceed.

PN27

THE DEPUTY PRESIDENT: Thank you. Mr Douglas, are you ready to call your first witness?

PN28

MR DOUGLAS: Yes, may it please, Mr Stewart please. Your Honour, I can indicate there's a letter that's been faxed through to the Commission so
Mr Stewart might refer to a letter, it was sent by Mr Hegard, so that will come through shortly.

PN29

THE DEPUTY PRESIDENT: This is a letter that has been sent through but not received yet, is that what you're saying Mr Douglas?

PN30

MR DOUGLAS: It's a letter that was sent by Mr Hegard to Mr Cameron, we haven't got it off the press up here, it's being to sent to us as we go so I just ask
Mr Stewart not to deal with that letter for the moment.

<LEIGH GRANGE STEWART, AFFIRMED [3.06PM]
<EXAMINATION-IN-CHIEF BY MR DOUGLAS

PN31

MR DOUGLAS: May it please your Honour, if I could ask Mr Stewart to be shown this document. Your Honour, I apologise I thought I had made another copy of this document but I haven't as yet. Mr Stewart, are you aware of the contents of that document?---Yes I am.

PN32

I should take your name first. Your name is?---Leigh Stewart.

PN33

Your occupation is?---I'm the employee relations manager for Visy Industries.

PN34

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

PN35

This is a witness that we helped you prepare earlier this morning, is that correct?
---That's correct.

PN36

Could you just read through it quickly to make sure that it's the same one that I showed you earlier this morning.

PN37

THE DEPUTY PRESIDENT: Mr Douglas, would it help if I had a copy of that made?

PN38

MR DOUGLAS: Yes, if I could.

PN39

THE DEPUTY PRESIDENT: Presumably Mr Addison has a copy already?

PN40

MR ADDISON: I've just been handed it your Honour.

PN41

THE DEPUTY PRESIDENT: Is the document you intend to rely upon as the basis for any evidence of Mr Stewart?

PN42

MR DOUGLAS: Yes.

PN43

THE DEPUTY PRESIDENT: On that basis, it might - if that's only just been handed to Mr Addison it might, in the interests of fairness be reasonable that we gave a brief adjournment to allow Mr Addison to peruse the document. At the same time I'll have a photo copy made for the Bench.

PN44

MR DOUGLAS: Yes. Your Honour the other thing is, the next three witnesses I'm sorry we haven't had a chance to prepare a witness statement.

**** LEIGH GRANGE STEWART XN MR DOUGLAS
PN45

THE DEPUTY PRESIDENT: No, that's fine but this one you have so I think in fairness Mr Addison should have the opportunity to read through it prior to you starting your examination-in-chief.

PN46

MR DOUGLAS: In that case, could you pass the full one.

PN47

THE DEPUTY PRESIDENT: I'll adjourn for a period of 5 to 10 minutes to allow that to occur.

<SHORT ADJOURNMENT [3.08PM]
<RESUMED [3.34PM]

PN48

THE DEPUTY PRESIDENT: Is that all the paperwork that you need now
Mr Douglas, in the number of copies of that you needed?

PN49

MR DOUGLAS: Your Honour, we've got the number of copies but
Mr Stewart's attachment A seems to have disappeared which we are trying to recover from the car and that's whistling it's way up here as we speak.

PN50

THE DEPUTY PRESIDENT: Well look, just before you get under way with your examination-in-chief I thought it might be worthwhile to see if we could at least agree to what we don't agree about in this matter and perhaps save a bit of time. Mr Addison, do you intend to contest that the action which is foreshadowed for 15 November considered in the context in which we are considering it here, is industrial action within the meaning of the Act?

PN51

MR ADDISON: There's no action your Honour.

PN52

THE DEPUTY PRESIDENT: No, I'm not asking you that Mr Addison. What I'm asking you is, if the action was taken that is that Mr Douglas is suggesting is going to be taken by the employees, if it was taken are you going to say to me, or is it your submission, that it would not in any event be industrial action as the Act defines industrial action?

PN53

MR ADDISON: It would depend on a whole range of factors your Honour. I don't think we have the same - - -

PN54

THE DEPUTY PRESIDENT: Well, the question's a simple one Mr Addison. I really want to know whether that action if it is taken on that day is something that you would concede to be industrial action or whether you intend to contest it and say that no, even if it is taken, even if that occurs and these employees go, that is not industrial action for these reasons.

**** LEIGH GRANGE STEWART XN MR DOUGLAS
PN55

MR ADDISON: I would be content to rest your Honour on the observations of His Honour Justice Munroe in Gordon v Gotch - - -

PN56

THE DEPUTY PRESIDENT: Well, let me just say this to you Mr Addison. I'm asking you a question so I know what it is, is in contest here. It would seem to me to be a fairly long bow if you were going to take that particular line, but - that it wouldn't be industrial action. It seems to me that the authorities have been fairly specific - - -

PN57

MR ADDISON: I think Justice French put it clearly.

PN58

THE DEPUTY PRESIDENT: Okay, so what I really want to get around is whether or not that particular point is in issue between the parties.

PN59

MR ADDISON: On the basis that all of the Visy sites are in fact constitutional corporations and they don't fall under the same category as occurred on the last occasions before Senior Deputy President Lacy, where Silcar brought a matter but it was found during the course of the proceedings that the Silcar site was in fact a partnership, not a constitutional corporation. Presuming none of those factors are there and therefore there's no impediment under section 4, His Honour Senior Deputy President Lacy found in Silcar, but presuming that's not there then I would have to go along with the views of Justice French in Laing, it's industrial action.

PN60

THE DEPUTY PRESIDENT: Thank you. The next point is that the work that the employees covered by this application is the subject of coverage by an award or certified agreement, is that a point that you intend to contest?

PN61

MR ADDISON: No, I think all of the sites, and I'll take instruction on this your Honour, but I think all the sites are in fact covered by certified agreements and all the sites are covered by an award. Not necessarily the awards that have been provided to you your Honour, I believe - - -

PN62

THE DEPUTY PRESIDENT: So that's no a point of contest between the parties?

PN63

MR ADDISON: I wouldn't have thought so your Honour, no.

PN64

THE DEPUTY PRESIDENT: Okay, is there any suggestion to be made by you that this action if it was taken is not unprotected industrial action?

**** LEIGH GRANGE STEWART XN MR DOUGLAS
PN65

MR ADDISON: Your Honour it's hard for me to say that because my submission is there is no action.

PN66

THE DEPUTY PRESIDENT: No, you again didn't either hear what I said or misunderstood what I said Mr Addison. I didn't suggest there was, I said if it was taken, I'm speaking hypothetically so that I can understand if I - and perhaps to some extent cut short the proceedings and know what we disagree about.

PN67

MR ADDISON: There are no MI or MO notices which are currently in extant with regard to Visy Board.

PN68

THE DEPUTY PRESIDENT: Thank you. So, that being the case is it not that the issues that are before us, the issue of whether or not there is industrial action happening, impending or probable at any or all of these sites, that that is the first issue.

PN69

MR ADDISON: It seems that way.

PN70

THE DEPUTY PRESIDENT: And the second issue is the issue of the Commission's discretion. If the Commission was to find that the jurisdictional prerequisites are met and that that industrial action was happening, impending or probable the only other issue is the issue of whether or not the Commission should exercise its discretion in favour of making.

PN71

MR ADDISON: Absolutely, sir.

PN72

THE DEPUTY PRESIDENT: So it's the probability of industrial action essentially that we're talking about and the issue of the Commission's discretion.

PN73

MR ADDISON: Yes.

PN74

THE DEPUTY PRESIDENT: Okay, thank you. Mr Douglas. Given what
Mr Addison has just said, the issues that the union contests, you might limit your examination-in-chief and your submissions generally to those issues in the circumstances.

PN75

MR DOUGLAS: Your Honour, in fact what I was going to do with Mr Stewart is, seeing as everybody is aware of this, to correct any error that's in there, tender the evidence as it is and then open it for cross-examination. I think that would - there's one document missing your Honour. Mr Stewart has seen it, but we're trying to recover it. I'm not quite sure why it's not here, my associate has gone to go and find it and when they happens I might have to slip Mr Stewart back in the box just to say that's the attachment.

**** LEIGH GRANGE STEWART XN MR DOUGLAS
PN76

THE DEPUTY PRESIDENT: Yes, thank you.

PN77

MR DOUGLAS: Your Honour I apologise for that. Mr Stewart, you've given your name and address, your occupation. There is a witness statement before you which you helped me draw this morning and later this afternoon. Are there any corrections that you need to make to that statement to make it true and correct?
---Yes there are.

PN78

Could you be kind enough to direct people to that?---Yes, certainly. Firstly, in paragraph 8 where it says I instructed, that should read Visy instructed. In paragraph 12, the third dot point says Visy Recycling Smithfield, New South Wales. That needs to be deleted.

PN79

Sorry, which one was that one?---Third dot point, Visy Recycling Smithfield, New South Wales at paragraph 12.

PN80

Yes, thanks. Should say what?---Just delete it.

PN81

Just delete it?---The second to last dot point, paragraph 12 reads Gepps Close, that needs to be Gepps Cross. Paragraph 13, second line reads accepted at the, that should be accepted at these. Paragraph 20, final sentence reads the details of these delegation is at, it should be delegation offers is at.

PN82

So the full sentence would read - - -?---The details of these delegation offers is at attachment C and those are the only corrections.

PN83

Yes, with those corrections you're content that it's true and correct?---I am.

PN84

Your Honour, I tender that document and its attachments. As I indicated, attachment A is missing and I will call, unless my friend consents, to put that document back in.

PN85

THE DEPUTY PRESIDENT: Yes, thank you.

EXHIBIT #VISY1 STATEMENT OF LEIGH GRANGE STEWART
<CROSS-EXAMINATION BY MR ADDISON [3.43PM]

PN86

MR ADDISON: Obviously, as I haven't seen attachment A your Honour I'll reserve my position until I do see it. Mr Stewart, when was the last time you were at Visy Board, Smithfield?--- When was the last time I was personally at Visy Board, Smithfield?

**** LEIGH GRANGE STEWART XXN MR ADDISON
PN87

Yes?---I was last at Visy Board, Smithfield approximately 10 to 12 weeks ago.

PN88

So you've had no involvement directly with officials at the AMW or gone into the AMW at that plant for at least 12 weeks?--- That's correct.

PN89

Have you spoken on the telephone to any of the officials or delegates at that plant?--- Not personally, no.

PN90

Yet you give evidence that industrial action is likely to occur at that plant on Tuesday of next week?---That's correct.

PN91

What's the basis of that evidence?--- The basis of that evidence is the numerous and ongoing discussions that I have had over the last fortnight with people from Visy Board who have had direct discussions with the AMWU officials and delegates at that site.

PN92

And what people are they?--- They are Tom Burraston and they are John Lymberis.

PN93

Are those people giving evidence?--- They are.

PN94

Okay, then you'll need to go no further with regard to that. Now, just in terms of Visy Board, Smithfield, they do work shift work don't they?---They do.

PN95

Yes, in fact they have 24 hour coverage, don't they?--- I believe so.

PN96

Yes, so the employees are rostered over three - well, may I ask you this question. What's the shift pattern?--- I'm just considering if it is in fact 24 hour coverage or if it is in fact just day and afternoon shift and I'd have to say I don't have absolute knowledge of that.

PN97

Okay, so you're not aware but you aware they work shifts?---They do work shifts.

PN98

So at any time, some of the employees are rostered to work and some of the employees are rostered off, that's correct isn't it?--- That is correct, yes.

PN99

And with the meeting of employees for instance was held yesterday, Thursday, those employees at that meeting may or may not have been rostered to work, say next Wednesday. That's true isn't it?--- If your question is, if there is a meeting of employees, all employees, are some of them likely to not be rostered next Thursday, my response would be that would depend on the roster for that period and the attendance of those employees at that meeting.

**** LEIGH GRANGE STEWART XXN MR ADDISON
PN100

So, on 3 November 2005 there was a meeting with union members on the Smithfield site, do you agree with that? It's in your submissions, I don't know whether it's in that attachment that you've got?---I believe it is.

PN101

But certainly in the submissions of - - -?---I believe it's here

PN102

Andrew, it says that on 3 November 2005 there was a meeting of the Smithfield staff. I think it's there too but I couldn't find it?---It possibly might be in attachment A but at the moment I don't have anything to deny or confirm that that's the case.

PN103

You wouldn't deny that there was a meeting of employees - - -

PN104

THE DEPUTY PRESIDENT: It was within the submissions being made on behalf of your organisation, Mr Stewart?---It would be likely that it did, but I'm just saying your Honour without the full materials attached to my statement I am unable just to confirm that absolutely.

PN105

MR ADDISON: Would you be in a position to tell us how many of the employees that were rostered on, on 3 November and who attended that meeting would be rostered on, on 15 November?

PN106

THE DEPUTY PRESIDENT: Well he's unlikely to be able to do that if he can't even confirm that the meeting occurred.

PN107

MR ADDISON: Well I'm happy to give him a copy of Mr Douglas' submissions your Honour, he can have that document before him. I might hand a copy of that to him. These are the submissions that have been filed on behalf of Visy. If I can take you, Leigh, to the second page of that submission, or the third page of that submission. You'll see there a table, it's under paragraph 4 in the document that I have and you will see on page 3 Visy Recycling, Smithfield, New South Wales on page 3. You will see under that, Visy Specialities, Smithfield, New South Wales. You will see then on page 4, Smithfield, New South Wales, you'll see that according to this document, and we will deal with Visy Specialities, which is on page 3 there was a meeting with union staff - a union meeting with staff. One presumes union meeting with its members, one presumes, on 3 November. That's correct isn't it?---Yes, the final line on page 3 indicates, and in paragraph 5, that there was a meeting between the union and the staff on 3 November.

**** LEIGH GRANGE STEWART XXN MR ADDISON
PN108

That's right, and the resolution coming out of that meeting according to your notes is that all members had resolved to go out. You see that on the next box?---Yes that's correct, it indicates that all members were to go out on 15 November.

PN109

Yes, you weren't advised of that were you?---Yes I was advised of that.

PN110

By whom?---I was advised of that by Tom Burraston in phone hook-ups that I have been party to where I have been informed that in respect of Visy Specialities, Smithfield, that the offer a delegation had not been accepted.

PN111

That's what you were told?---That's correct.

PN112

So you were not told, as I've just put to you, that all members had resolved to go out on 15 November?---To the best of my recollection, the conversation was that the offer of a delegation by Visy had not been accepted.

PN113

Thank you. All those people who attended the meeting on 3 November, there would have been people rostered on would there not?---I'm unable to confirm or deny that.

PN114

Well, you have shift operations don't you?---Not knowing who was at the meeting, I feel I'm unable to confirm or deny that.

PN115

Well, I put it to you that it's a logical proposition, that if a union official comes on site at any particular time - - -?---Your Honour, I don't want to object but I thought that's been answered. That's highly speculative and unnecessary.

PN116

Your Honour, it is an important question.

PN117

THE DEPUTY PRESIDENT: Well, it's been answered Mr Addison.
Mr Stewart says he's unable to confirm or deny it, he doesn't know in other words.

PN118

MR ADDISON: Yes, he does not that there is shift work though.

PN119

THE DEPUTY PRESIDENT: Yes.

PN120

MR ADDISON: Okay, I'm content with that.

PN121

MR DOUGLAS: Your Honour, the truth is that whether he is a Visy official, he would not be standing inside a union meeting and seeing who's present in any event.

**** LEIGH GRANGE STEWART XXN MR ADDISON
PN122

THE DEPUTY PRESIDENT: Yes, well you have an opportunity for re-examination Mr Douglas.

PN123

MR ADDISON: Now, if I can take you to Shepparton. Let's just work through this table, Leigh. So go back to page 3 of those submissions. Shepparton, Victoria, your submissions say effectively as I read the table, that nothing has occurred. Everything is to be advised, that's correct isn't?---Sorry, can you repeat the question?

PN124

Well, as I read the initials TBA, to me that is to be advised?

PN125

THE DEPUTY PRESIDENT: Where are you reading from Mr Addison?

PN126

MR ADDISON: It seems we have a different set of submissions. I have a set of submissions dated yesterday, sent to me from Heinz & Partners, which was given to us 3.30 today.

PN127

MR DOUGLAS: No, it's not different, I think you're reading from the wrong paragraph.

PN128

MR ADDISON: No, I'm reading from paragraph 4 of the submissions where it says:

PN129

Visy's offer of paid delegations and report back was not accepted at the affected site.

PN130

Then there's a table which starts with site, VisyPak Shepparton, Vic and then there are a range of headings, the first one is Discussions with Union Delegates. The comment is TBA, to be advised then Visy - - -

PN131

THE DEPUTY PRESIDENT: That's where we should stop Mr Addison because that's not reflective of the document that I have in front of me.

PN132

MR DOUGLAS: I'm sorry, that's my fault I'm sorry about that. It's not reflective of mine either. My apologies - - -

PN133

MR ADDISON: I don't know, I've just got what I've got.

PN134

MR DOUGLAS: I am sorry about that.

**** LEIGH GRANGE STEWART XXN MR ADDISON
PN135

MR ADDISON: So what do I do with this, this is defunct is it?

PN136

MR DOUGLAS: I don't know how you got one that was an old version.

PN137

MR ADDISON: Let me start that line of questioning again your Honour.

PN138

THE DEPUTY PRESIDENT: Yes.

PN139

MR ADDISON: Now, the document you have Leigh, is that the same document that I've been reading off or is that a different document, can I just ask that question up front?---I have a document at paragraph 5 under Shepparton to which you were just referring, that has dates 10 and 11 November 2005.

PN140

We seem to have the same documents. Under paragraph 5 - can I take you back to paragraph 4. Does your paragraph 4 say

PN141

The union organised meetings at the affected sites to advise, inform, encourage and organise employees to attend a rally.

PN142

?---It does.

PN143

The meetings occurred as follows?---It does

PN144

Were you in attendance at any of these meetings?---No I was not.

PN145

You don't know what was said at any of these meetings, do you?---If I wasn't in attendance I couldn't know what was said.

PN146

On 10 November, which was yesterday, a meeting occurred at Shepparton, is that correct?--- From the materials, it appears that that is the case.

PN147

You're not personally aware of that though?---No I'm not.

PN148

So you have no knowledge whether the meeting actually occurred or not at Shepparton yesterday?---I understand from the discussions that I've had with other representatives from Visy that a meeting did occur, however I was not personally at that meeting.

PN149

Can I ask who advised you that a meeting occurred at Shepparton yesterday?
---Yes, I was advised that by Robert Joyce.

**** LEIGH GRANGE STEWART XXN MR ADDISON
PN150

And was Robert Joyce at Shepparton?---I don't know.

PN151

Is Robert Joyce giving evidence in these proceedings?---Yes he is.

PN152

With regard to - if I can take you to the next sub-heading that's Coburg. You say, or do you agree that meetings occurred yesterday and today with regard to these matters?---It does say in paragraph 5 under Coburg that meetings occurred on 10 and 11 November.

PN153

Visy asked for those meetings to occur, did it not?---Yes we did.

PN154

Indeed, Visy asked the AMWU delegate at Coburg to convene a meeting to look at a couple of propositions that Visy proposed for next Tuesday, that's correct isn't it?---That is correct, Visy has made an offer of a paid delegation to attend the rally next Tuesday in lieu of the whole site going out.

PN155

Well, Visy approached the delegate and Visy asked the delegate to convene a meeting to consider two propositions that it had for its workforce. That's correct isn't it?---I'm unable to comment on who approached who. What I am able to say is that Visy has made an offer to the employees of Coburg to accept a paid delegation to attend next Tuesday.

PN156

Well that's not quite true, is it?---To my understanding it is.

PN157

Well, I put it you that Mr Street - you know Mr Street don't you? Robin Street?
---I don't know him personally.

PN158

But you know who he is, don't you?---I know who he is.

PN159

And who is he?---He is the operations manager at Coburg.

PN160

At Visy Coburg, and Mr Street has approached the delegates and asked them if they will put to the employees one of two propositions. One, that they will send this delegation to the rally on Wednesday consisting of 15 people - Tuesday sorry, of 15 people and all those 15 people will be paid. Or two, all of the employees working on the site can attend the rally on Tuesday by taking an accrued leisure day off. That's correct isn't it?---You would need to have that confirmed by someone other than myself.

**** LEIGH GRANGE STEWART XXN MR ADDISON
PN161

THE DEPUTY PRESIDENT: Well, sufficient to say you don't know?---I don't know.

PN162

MR ADDISON: Your Honour, I only have one copy of this memo, I have a memo signed by Mr Street. I only have one copy because it's just been handed to me by the delegate. I'm content for the memo to be photocopied and handed to people. I'd seek at some point it be marked, I think in fairness though it should be before Mr Stewart, if I'm going to ask him questions on it.

PN163

THE DEPUTY PRESIDENT: Yes, you can hand it to Mr Stewart.

PN164

MR ADDISON: I'll just ask you to have a quick look at that. I'll just ask you to confirm that what I've just said is correct?---Yes, I've read that. Can you repeat the question though?

PN165

There's one of two options. Either, Mr Street asked Mr Zwort who is the senior AMW delegate on the site at Coburg, you agree that that's the case?---Yes, that's the case.

PN166

Asked Mr Zwort to convene a meeting of the AMW membership and put to them one of two options. The two options were, one 15 people could be selected by the employees one presumes to attend the rally on Tuesday and that they would be paid for such attendance. Or two, all employees on the eight hour shift could attend the rally with pay, taking a accrued - I think the terminology is leisure day off but I could be corrected on that, is that correct Leigh, leisure day off?---Yes it is.

PN167

That's true isn't it?---The memo that I have in front of me does outline those two options. Whether or not Mr Street approached Mr Zwort, I have no personal knowledge of.

PN168

Your Honour, I'd seek to tender that at the appropriate time.

PN169

THE DEPUTY PRESIDENT: Yes.

PN170

MR ADDISON: Maybe if you just hand that to the Commissioner's Associate. I'm advised that will be tendered through Mr Joyce, so maybe that's the most appropriate person to ask questions of in any event. Now, Kewdale, Western Australia there was a meeting on 2 November, that's correct?---The outline of submissions indicates that, yes.

**** LEIGH GRANGE STEWART XXN MR ADDISON
PN171

Do you have any knowledge of that meeting that occurred on 2 November?---I have knowledge that meetings were occurring at the Kewdale site. I don't have direct knowledge of the date on which they occurred but I know that meetings were occurring at that site.

PN172

And I put it to you that no decision has been made at Kewdale by employees as to any action on 15 November, that's correct isn't it?---No, my understanding is that the Kewdale Visy Specialities site have indicated that they rejected the company's offer of a paid delegation.

PN173

That's correct, that's absolutely correct. They have rejected the company's offer of a paid resolution. There is no resolution, the company has not been informed at all that employees intend not to attend to work on Tuesday, do they? Have you been told that people will be on strike on Tuesday?---In the conversations that I've had regarding the Kewdale site, it is very clearly been made aware that in rejecting the company's offer of a paid delegation to attend the rally on
15 November, that that is rejected and that the basis upon which it is rejected is because all employees intend to leave the site or not attend at the site so that they can attend the rally on 15 November.

PN174

Who told you that?---That is the conversations that I have had with a number of representatives from Visy Board and namely, Mr Tom Burraston who has had numerous discussions with the people at the Kewdale site.

PN175

Mr Burraston is giving evidence?---He is.

PN176

You have not been told by any representative of the AMWU, have you, that people will not attend for work at Kewdale on Tuesday?---No, we have been told nothing by any AMWU - - -

PN177

You have not been told by a delegate or an organiser or an official or an officer of the AMWU that employees will not be attending for work on Tuesday, that's correct isn't it?---That is correct.

PN178

Now, we've already dealt with Smithfield. You similarly have not been told by any officer, official or delegate of the AMWU at Smithfield - - -

PN179

THE DEPUTY PRESIDENT: I think Mr Stewart has just given evidence that it's universally the case that he's not been told directly by any AMWU official that there will be a stoppage of work on Tuesday in the next week. Is that not correct?---That's correct your Honour.

**** LEIGH GRANGE STEWART XXN MR ADDISON
PN180

MR ADDISON: Well I'm happy with that. I was directing my question to Kewdale but if the evidence goes beyond that I'm happy - - -

PN181

THE DEPUTY PRESIDENT: In answering that question he, as I understood it, stated that that was the case across the board.

PN182

THE WITNESS: I have not personally been informed by any official, delegate or officer of the AMWU in respect of any action at any of our sites.

PN183

MR ADDISON: So I put it to you that the basis of your evidence is internal conversations with managers?---That is correct.

PN184

And those internal conversations - no I withdraw that. You probably don't know the answer to this Mr Stewart but I'll ask you just in case you do. You'll see on page 3 of those submissions that a meeting was held with Mr Matthew Lowe on 2 and 9 November in Smithfield. Page 3 Leigh, under paragraph 4, the second page of that table, you'll see Smithfield, New South Wales, 2 and 9 November 2005, met with Matt Lowe?---Yes, the third column headed Union Meetings in the table in paragraph 4 for Smithfield indicates that there was meetings with Matt Lowe.

PN185

I'm not sure that it does but, why were there two meetings, the 2nd and the 9th?
---I don't know.

PN186

You see, I put it you that it's more likely to be the 2nd because I put it to you that Matthew Lowe was not in fact in New South Wales on 9 November. I don't know whether you're in a position to agree or disagree with that.

PN187

THE DEPUTY PRESIDENT: The next column refers to 2 and 7 November.

PN188

MR ADDISON: Yes I see that, that's why I said I'm not sure that's what it says but it seems there's two meetings. I don't whether they were taking a guess on the dates or - that's all I'm trying to get to.

PN189

Were there two meetings or was there one meeting?---Well, it would appear that there was two. I don't have any personal knowledge of when they would have occurred.

PN190

So Mr Burraston would know that?---Yes.

**** LEIGH GRANGE STEWART XXN MR ADDISON
PN191

In terms of - I just want to run through some places with you. Warrick Farm, New South Wales, Visy Board, shift workers?---That's correct.

PN192

Once again, rostered over 24 hours in a day?---No, I don't believe so but I'll stand corrected.

PN193

I think you're right. If I say to you permanent day shift and permanent afternoon shift Monday to Friday would that be about right?---That sounds right, but again I'm not 100 percent sure but my understanding is that it's day and afternoon shift only.

PN194

Visy Board O'Connor, day and afternoon shift?---Again, that's my understanding but I'm not 100 percent sure.

PN195

Visy Board Gepp's Cross, day and afternoon shift?---That's my understanding but I don't know for sure.

PN196

Visy Paper, Smithfield, New South Wales, rotating 12 hour shifts?---That's correct, continuous 12 hour shifts.

PN197

Yes, any employee who was rostered off on 15 November who attended either a community rally or a meeting of the Girl Guide's or a sausage sizzle in his local supermarket would not be taking industrial action, you would agree?---That's correct.

PN198

That's correct. The application that's before the Commission seeks to bind all Visy employees. That's correct isn't it?---I don't have a copy of the application in front of me.

PN199

I think - is it not attached to the submissions? Parties Bound clause?---Clause 3?

PN200

Yes, clause 3.1 of the order and specifically clause 3.1 (b) of the order seeks to bind all employees of Visy does it not?---It does.

PN201

It would be improper, would it not, to try and bind an employee who was rostered off, who has a perfect right to do anything he or she wishes to do with their rostered time off?

PN202

MR DOUGLAS: I've got to object because the directions make it very clear at 4.2 the direction to stop is each of the employees of Visy who are eligible to be members of the AMWU must attend work and perform work as normal without restrictions, limitations or delays. I mean, the order is abundantly clear and very narrow, this is mischievous your Honour.

**** LEIGH GRANGE STEWART XXN MR ADDISON
PN203

MR ADDISON: I disagree entirely. The order seeks to bind all employees.

PN204

THE DEPUTY PRESIDENT: Well, I'm not sure the order seeks to have any effect at all on people that are not rostered to work in any event Mr Addison.

PN205

MR ADDISON: Maybe, but the Federal Court has made it abundantly clear that these orders - - -

PN206

THE DEPUTY PRESIDENT: You can save your authorities to submissions and tell me about it then, but at the moment you are putting a question to Mr Stewart and in the circumstances I tend to agree with Douglas.

PN207

MR ADDISON: Have you advised your employees that you are seeking orders against them?---I am not personally aware of whether or not employees have been advised of that.

PN208

So you've given no direction to the plant mangers that you should go out and inform all employees that Visy today are seeking orders against them as individuals?---Again, I am not aware of any instructions - - -

PN209

No, I'm asking if you have given those instructions?---Sorry?

PN210

I asked you if you had given those instructions?---Had I personally given those instructions to our managers? No I have not.

PN211

If an order was granted, if an order was granted, and employees were to attend the rally on Tuesday because they thought they had a right to do that because that is their political belief or whatever, would Visy sue those employees?

PN212

MR DOUGLAS: Your Honour, this is really improper.

PN213

THE DEPUTY PRESIDENT: Mr Addison, I'm not sure where you're trying to take this. This order does nothing to prevent any Visy employee, even if it were granted, who if not otherwise rostered to work from attending the rally.

PN214

MR ADDISON: That wasn't my question your Honour.

PN215

THE DEPUTY PRESIDENT: The order doesn't seek to prevent anybody attending the rally.

**** LEIGH GRANGE STEWART XXN MR ADDISON
PN216

MR ADDISON: That wasn't my question your Honour. My question was - - -

PN217

THE DEPUTY PRESIDENT: Well, your question was would Visy sue an employee who attended the rally?

PN218

MR ADDISON: Yes, that's right, employees caught by the order and I didn't it in those terms. I apologise for that, maybe I was a bit unclear but let me put it again. If an employee was rostered on and caught by this order and that employee decided to attend the rally in any event, would Visy prosecute that employee?

PN219

MR DOUGLAS: It's an improper question, it's not a matter that's before you. It's not a relevant matter that it goes to the question of jurisdiction. It's an entirely irrelevant question.

PN220

THE DEPUTY PRESIDENT: I'm not sure why - - -

PN221

MR ADDISON: I disagree with that, I think it is a relevant question. It's certainly a matter that various members of the Commission have asked on their own basis from the Bench. It is question that - - -

PN222

THE DEPUTY PRESIDENT: Well, it's not one that I'm asking from the Bench. It's one that you're asking and the question of relevance has been raised and the fact that some other member may have asked it at some point in time to my way of thinking doesn't go towards explaining its relevance. So, there has been an objection on the basis of relevance perhaps you'd answer that objection.

PN223

MR ADDISON: Sure, it's relevance is your Honour, it's a matter that goes to your discretion.

PN224

THE DEPUTY PRESIDENT: Why?

PN225

MR ADDISON: It would be improper for the Commission simply to issue orders and then not have them followed through and that's the basis of certainly been asked, not by one member of the Commission, but by numerous members of the Commission in the last 3 or 4 years to my knowledge. So that's the basis of the question your Honour.

PN226

THE DEPUTY PRESIDENT: So your question is really, is it the intention of Visy Board to enforce any order that might issue, is that the question you are asking?

**** LEIGH GRANGE STEWART XXN MR ADDISON
PN227

MR ADDISON: That's correct.

PN228

THE DEPUTY PRESIDENT: If that's the question you're asking then
Mr Steward, you are entitled to answer it?---And my answer would be that that is a decision that I would not make and I have no knowledge of the answer to the question.

PN229

So you're seeking an order that you don't know whether you would enforce or not?---No, my answer is that on whether or not to enforce the order would be a decision that I would not make and I have no personal knowledge of whether or not that would be the case.

PN230

THE DEPUTY PRESIDENT: So you're saying it's not your decision to make and you don't know what decision would be made by those who have the authority to make it, is that correct?---That's correct.

PN231

Yes thanks.

PN232

MR ADDISON: You're a corporate IR manager?---Employee relations manager, yes.

PN233

You'd advise on that question would you not?---My advice would be sought.

PN234

Yes, and you'd advise no doubt the board?---I would report to my manager.

PN235

Yes, and what would your advice be?---Well, I'm unable to say because I don't know. I would give my advise based on the circumstances at that point in time. I'm not about to speculate.

PN236

THE DEPUTY PRESIDENT: I'm not sure that this is going to take us any further Mr Addison, it's becoming - getting into the realms of speculation.

PN237

MR ADDISON: Yes, I have nothing further for this witness your Honour.

PN238

THE DEPUTY PRESIDENT: Thank you. Is there any re-examination
Mr Douglas.

<RE-EXAMINATION BY MR DOUGLAS [4.19PM]

PN239

MR DOUGLAS: Just briefly your Honour. Mr Stewart, on the national day of action that preceded this particular rally, were you aware of any union officials that told you that the employees were not going to attend work?---Despite attempts to find out such information, no.

**** LEIGH GRANGE STEWART RXN MR DOUGLAS
PN240

And did we lose many sites in Visy?---Yes, a number.

PN241

No further questions your Honour.

PN242

THE DEPUTY PRESIDENT: Yes, thank you. Thanks for your evidence
Mr Stewart can you step down. You can remain or leave as you wish.

<THE WITNESS WITHDREW [4.19PM]

PN243

MR DOUGLAS: Your Honour, if I may call Mr Burraston.

<THOMAS GREGORY BURRASTON, AFFIRMED [4.20PM]
<EXAMINATION-IN-CHIEF BY MR DOUGLAS [4.21PM]

PN244

MR DOUGLAS: Would you please give the court your name - you've given your name and address so that's fine. What is your occupation?---I'm the national industrial relations manager for Visy Board.

PN245

And for the purposes of this application, has your role been expanded?---For the purposes of this application, my role has been extended to cover the affected sites, ie. recycling - Visy Recycling, Visy Paper and Specialities.

PN246

Now, if I can take you back to the national day of action and I want you to try and recall. Are you able to give the court some background of what occurred with the AMWU during the national day of action?---That was the first one?

PN247

Yes, that was 30 June in Victoria, 1 July in New South Wales?---I wasn't involved in any discussions leading up to the national day of action. I was actually on annual leave, but I did return to work, I think it was the day before, annual leave, or the day before that, a couple of days before the day of national action. But I understand or I do know that we lost all the employees at recycling Smithfield, Kewdale which is specialities at Kewdale, Visy Board O'Connor, Visy Board Warrick Farm with the exception of 30 people that did come to work, Visy Board Smithfield with the exception of two or three people and we lost a number of employees at Dandenong, like about a three way split there.

PN248

Are you able to say what sort of intimations the union gave about the likelihood of losing employees to go to the rally in those sites?---On that occasion?

PN249

Yes?---Could you repeat that please?

PN250

Are you able to say what type of information or suggestions the union gave to Visy about people going on a national day of action rally?---On 1 July?

PN251

Yes?---I can't answer that because I wasn't present at any meeting with any of the unions.

PN252

From your enquiries with the operations managers are you able to say anything further?---Not really. When I got back it was just reported to me that there had been meetings taken place. At that stage I was - as I said I've just come back from annual leave and I was informed that there'd be mass meetings take place and there was a number of- - -

**** THOMAS GREGORY BURRASTON XN MR DOUGLAS
PN253

THE DEPUTY PRESIDENT: In any even, Mr Douglas, it's likely to be hearsay in any event.

PN254

MR DOUGLAS: Yes.

PN255

In respect of this occasion which is the rally as we've described are you able to say the process that you went through with each site?---Yes.

PN256

Can you explain to the Commission the process that was undertaken by Visy?
---Okay. The process that was undertaken by Visy is that the site managers or the factory managers called in the delegates and indicated to the delegates that it was the company's preferred position leading up to this rally of 15 November, it was the company's preferred position that they would like to offer and discuss with the delegates a reasonable delegation, paid delegation, to attend the rallies and that in doing so the management would be addressing the employees at meetings to inform them of the position, the preferred position of Visy.

PN257

All right. Can you then explain what has occurred on a site by site basis for the ones that we call affected sites, and they're sites where an agreed delegation hasn't been there?---Where we have a delegation accepted?

PN258

Yes, if you can site which sites they are first?---Can I refer to my notes please?

PN259

Yes?---There's been agreement at Visy Recycling at Coolaroo at Victoria. Did you want me to mention how many delegates?

PN260

It would be good thanks, yes?---Okay. There was two delegates released from there on paid leave, Visy Recycling Smithfield there's four delegates been released, Visy Specialities at Reservoir there's five delegates, Visy Specialities at Dandenong there's eight delegates attending, I can't answer for Visy Cartons.

PN261

No, that's not .....?---Okay. Visy Board Campbellfield and Coolaroo there's five, Visy Board Dandenong there's 16, Visy Board - that is, it should be Visy Board, it's part of Visy Board but Fine Art Graphics at Carol Park in Queensland, there's two, and Visy Paper at Coolaroo there's four.

PN262

THE DEPUTY PRESIDENT: Can you just tell me, Mr Burraston, are these arrangements that have been reached with the AMWU or are these arrangements that have been reached with the AWU?---There's arrangements been reached with both unions, your Honour.

**** THOMAS GREGORY BURRASTON XN MR DOUGLAS
PN263

And where have you got arrangements with the AMWU for people to be released?---Visy Recycling Smithfield, Visy Specialities at Dandenong, Visy Board at Dandenong, Fine Art Graphics at Carol Park in Queensland and that's the list.

PN264

Thank you.

PN265

MR DOUGLAS: In respect of the sites where delegations didn't occur are you able to explain to the Commission what has happened in respect of each site?
---Yes, I can. Visy Specialities Smithfield there was no delegation agreed to there so there was none offered, to my understanding. As it was a meeting was held and there was a statement made by the delegate to the company after that mass meeting.

PN266

THE DEPUTY PRESIDENT: Sorry, you say there was none offered. I don't understand what you're saying?---It was offered by the management, as I reported earlier, to a meeting to the employees, but it wasn't taken up.

PN267

So the offer that was made to the employees was a standard offer that was made at all of these sites?---All of the sites, yes.

PN268

There'd be a delegation of employees - was a number put on that, Mr Burraston?
---No, not at Specialities. That was to be discussed.

PN269

Okay. So the general proposition was that Visy was prepared to accept a delegation of reasonable size?---Yes, to be agreed to be upon between the parties.

PN270

To be agreed, of people who would be paid for the day and allowed to attend the rally as representatives of the workforce at Visy?---Yes be paid for the day and be given paid report back meetings to all the employees as to the events that occurred at a rally and distribute any material at a rally.

PN271

And that's the information as far as you're aware that was passed on at each of the meetings as the Visy position?---That's my understanding, yes.

PN272

And you say that the circumstance at Smithfield, I think you just referred to - - -?
---Smithfield at Specialities?

PN273

Yes, was that that was rejected by the workforce?---The delegation?

**** THOMAS GREGORY BURRASTON XN MR DOUGLAS
PN274

Yes. The Visy position was put to the membership and the membership rejected it?---I think it was a matter of timing. The management there convened a meeting, I think it was an hour or something before the union came to have their meeting. So they basically said what the preference was at that plant and then they went from that straight into the union meeting and then the delegate came in and just indicated that there was, I think the words used by the manager was sorry can't do anything about it with one out all out.

PN275

Okay. Sorry to keep harping on the point, Mr Burraston, but I come back to it. The position that the company put, ie. that there be a delegation agreed upon and allowed to attend and paid for such attendance was put to the Smithfield Specialities union, the members of the union then conveyed back to the company that they rejected that offer?---Correct, sorry.

PN276

Thank you.

PN277

MR DOUGLAS: If you could just travel through the other one?---I can. Kewdale in Western Australia, that's a speciality shop. There was a delegation offered of three there, Visy Board O'Connor- - -

PN278

THE DEPUTY PRESIDENT: Delegation? Again I don't follow. The delegation offered of three?---The company would have said we will pay for three delegates to attend the rally and then report back and do whatever else.

PN279

So the number at that particular site was actually specified by the company, was it? It wasn't like you previously stated?---I am not totally sure, I only found that out this morning that they offered a delegation of three. The manager told me they offered a delegation of three.

PN280

Okay. So as far as you're aware with that site the company has said they're prepared for three people to attend the rally and they will pay those three people, provide the same report back circumstances, but the workforce there has rejected that offer?---Correct. That's my understanding, yes. The same at Visy Board O'Connor.

PN281

Sorry, just going back to that one. in rejecting that offer do you have any further information, Mr Burraston, about that rejection? Did they simply reject the three or did they go further than that?---No. I've been informed they rejected the three and indicated that they'd be attending the rally.

**** THOMAS GREGORY BURRASTON XN MR DOUGLAS
PN282

And who informed you of that?---The manager.

PN283

Thank you?---He informed me - I just need to clarify because I only had the conference call with him this morning. He believed that there would be, I think there was eight people attending the rally and he indicated there'd probably be eight coming to work, he wasn't quite sure on that.

PN284

Thank you?---Visy Board O'Connor, there was an offer of 10 delegates to attend the rally.

PN285

An offer from the company?---From the company, of course. Warrick Farm - - -

PN286

MR DOUGLAS: Let's see if we can just come back to O'Connor?---Yes, sorry.

PN287

That was the discussion you had this morning too. What was the feedback you had from that?---The feedback I had from that this morning was that there had been a meeting convened there yesterday, yesterday afternoon of which the AMWU was in attendance, the union was in attendance and as of I think it was about midday today the company hadn't received a report back from the union officially as to what they were going to do. However, it was expected that they were going to lose everybody there today on the ..... That was basically coming off the floor.

PN288

THE DEPUTY PRESIDENT: But the company's offer you're saying has not been responded to officially by the union?---I has not, no.

PN289

MR DOUGLAS: When you say it's coming off the floor, can you just expand on that a little bit please?---Well, it's a matter of what feedback is coming back to the management from the supervisors and what is being said.

PN290

Next up?---Warrick Farm was an offer of 12 and that offer wasn't rejected, but it wasn't put to the meeting of employees.

PN291

Can you explain that please?---I was at that meeting and before the meeting we offered a delegation of 12 to the official and to the two delegates and they returned and indicated that the people weren't going to support the rally and under questioning we said did you put the offer of 12 delegates attending and they said no. That was at Warrick Farm.

**** THOMAS GREGORY BURRASTON XN MR DOUGLAS
PN292

Next one please?---Smithfield, there was an offer of 12 put there and that offer of 12 was initially discussed with the union prior to their mass meeting and it was an offer that the factory manager had been requested of by the delegates and initially the factory manager had offered 10. He wasn't at the meeting, he was interstate. They wanted 12, I rang the plant manager, I should say. I said the union is looking for 12, he agreed to the 12 on the basis the union recommended it to the employees. The employees considered it and once again they came back and indicated that the people would be supporting the rally.

PN293

So the offer was rejected?---It was basically rejected, yes. Subsequent to that we had a further meeting with the delegates yesterday and we increased the offer to 16 delegates to attend, paid delegates to attend, and as of midday today to the best of the - well, we know there hadn't been a meeting convened to put that position to the employees.

PN294

There hadn't been?---No, not as of about midday today.

PN295

Next up, Mr Burraston?---Gepp's Cross - - -

PN296

THE DEPUTY PRESIDENT: Sorry, just before you get to Gepp's Cross. The situation with Smithfield is that there is an offer out and no response on that offer?---Correct. Gepp's Cross was an offer of four to five people which I understand was the same amount that was offered in the July delegation.

PN297

And was that accepted in July?---Sorry?

PN298

Was that accepted in July?---Yes, it was accepted in July.

PN299

And what's occurred on this occasion?---On this occasion the delegates have indicated that they are supporting and employees are supporting the rally and that they will be, the people have their right to go and attend that who wish to.

PN300

MR DOUGLAS: Yes. Is there any further there, Mr Burraston?---Visy Paper there was a delegation of six offered.

PN301

Now, on the last occasion on the 1 July rally, what was the delegation there?---I believe it was, Visy Paper I think, I believe there was probably six, I think it was six again. There was a delegation agreed upon at Visy Paper in the last rally. I'm not quite sure of the numbers, but they did have a delegation that was accepted.

**** THOMAS GREGORY BURRASTON XN MR DOUGLAS
PN302

And that was successful last time, was it?---It was.

PN303

And on this occasion what has occurred?---There was a meeting convened on Wednesday of this week and there was, as I understand, a decision made to support the rally.

PN304

Now, is that all the sites?---That's about all I have.

PN305

Yes. Now, in respect of those particular sites that you've mentioned is it just the morning shift that is going out as you understand it or is it all shifts?---If I can go through one by one?

PN306

Yes, if you would, thanks?---Smithfield Specialities is only a day shift operation, okay. So that will affect that shift. Kewdale WA is day shift, O'Connor WA is two shifts, Warrick Farm New South Wales is two shifts, likewise for Smithfield New South Wales. You Honour, Gepp's Cross I understand the employees will be shuttled by bus to the rally and they will be at work in the morning and they will leave at 8 o'clock and then return to the plant after the rally and the afternoon shift I'm led to believe will work as normal at Gepp's Cross in South Wales. And Visy Paper in Smithfield, because they only have 12 hour shifts there so they lose what we call the day and afternoon night shift.

PN307

Mr Burraston, attachment A which was Mr Stewart's, has a history of past industrial action. If I can pass that up and one for his Honour.

PN308

THE DEPUTY PRESIDENT: I'm sorry, just before you do that, Mr Douglas, can I just ask Mr Burraston another question with respect to Gepp's Cross?

PN309

MR DOUGLAS: Please do, your Honour.

PN310

THE DEPUTY PRESIDENT: I think you said Gepp's Cross people, there was an offer of four to five?---I think I said, yes you're correct, four to five.

PN311

And they rejected that offer and decided to attend the rally?---My understanding is they rejected the offer, the delegation, which they had in the first rally because they indicated that it was a public rally and people had a right- - -

PN312

Yes, I understand that, but I'm just a bit confused. Because you say they rejected the offer and therefore you are taking it from that rejection that they intend to go enmasse to the rally. Is that correct?---It's unclear that the have attempted, the management over there has attempted to ascertain who will not be going to the rally and has been unable to gather that information.

**** THOMAS GREGORY BURRASTON XN MR DOUGLAS
PN313

So what are you telling the Commission then about the bussing of people to and from?---I understand there's a bus going to be outside the plant at 8 o'clock in the morning to pick people up whoever wants to attend the rally.

PN314

Those who want to attend, and that could be - - -?---It could be the whole plant, it could be 10, it could be half. We can't work out, we don't know how many that's going to be.

PN315

Thank you.

PN316

MR DOUGLAS: Mr Burraston, just on that point. When you sent managers out to speak to employees what occurs?---At the?

PN317

At the various sites. When you say are you coming to work or are you not coming to work what is the response that you get?---What will they say? What I've been informed is a lot of people are, can I use the word evasive, as to whether they're coming in or not coming in. some people say yes I will come in, they're the minority, but a lot of people just say look, I'm not quite sure or yes I'm going to the rally.

PN318

It's conceivable that they're not quite sure - - -?---A number of people are, other people are just not indicating anything.

PN319

Yes. If you'll be kind enough. Mr Addison has a copy of this, your Honour.

PN320

MR ADDISON: Your Honour, I've already raised it with Mr Douglas. It's value in these proceedings seems to be somewhat limited. As I understand the document it purports to outlay previous industrial action. There's no suggestion, to the best of my knowledge, that an approach similar to CBI Constructors would be taken in these proceedings in that a history of prior industrial action leads to a likelihood of further industrial action. It seems to be prejudicial to the respondents without having any prohibitive value at all in terms of the applicant's case and, your Honour, we don't object to its tender on the basis of relevance.

PN321

THE DEPUTY PRESIDENT: Mr Douglas, perhaps you can start responding to that simply by explaining to me what the document is first of all.

PN322

MR DOUGLAS: Your Honour, it is a history of past industrial actions on affected sites and sets out when that industrial action has occurred, for how long and the cost of that industrial action.

**** THOMAS GREGORY BURRASTON XN MR DOUGLAS
PN323

THE DEPUTY PRESIDENT: And why do you say that is relevant, Mr Douglas?

PN324

MR DOUGLAS: Your Honour, we say it's relevant to the case of probability or likelihood of industrial action and the people will leave the premises, that they will not attend work and in Grocon's case although that was the exclusive basis upon which they sought to rely on probability, it is a general concept that goes to your expression, your Honour.

PN325

THE DEPUTY PRESIDENT: Yes. You say that these occasions where people have taken industrial action in the past it was for similar reasons and the industrial action which you are saying will occur next Tuesday?

PN326

MR DOUGLAS: No, it's not all, your Honour. There are some that is and there's some that's not.

PN327

THE DEPUTY PRESIDENT: So some of this is purely site related industrial action?

PN328

MR DOUGLAS: Site related, yes.

PN329

THE DEPUTY PRESIDENT: But you're putting it to me that the fact that there might have been some site related industrial action in respect of particular industrial action issues in a particular factory at some point in time should give rise to a probability that employees will leave the site to attend the rally next Tuesday. Is that correct?

PN330

MR DOUGLAS: Your Honour, I'm saying it's a feature of the probability. I'm not saying that exclusively on its own. It amounts the probability but it's a relevant matter before your Honour because it helps your Honour form that conclusion that on this day people will leave as they have in the past.

PN331

THE DEPUTY PRESIDENT: Yes. I intend to accept the document,
Mr Addison, as a matter of weight.

PN332

MR ADDISON: Indeed.

PN333

MR DOUGLAS: Mr Burraston, in respect of that document that relates to site that you have knowledge of, is that document true and correct?

PN334

THE DEPUTY PRESIDENT: While Mr Burraston is looking at that,
Mr Douglas, this is actually in evidence as attachment A to Visy 1. Is that correct?

**** THOMAS GREGORY BURRASTON XN MR DOUGLAS
PN335

MR DOUGLAS: Yes it is, so long as Mr Addison agrees to that, your Honour, I may have to call Mr Stewart back because this is the document that we were missing earlier, your Honour, but I referred you to.

PN336

THE DEPUTY PRESIDENT: Yes.

PN337

THE WITNESS: With the exception of just one box.

PN338

MR DOUGLAS: Would you be able to explain which box is incorrect?---Well, it just needs an addition to it, Mr Douglas, and that is attachment A there's Smithfield New South Wales under Visy Specialities.

PN339

Yes?---They took protected action at the same time as Warrick Farm in the 23rd to 26 November 2004. They were part of that protected action. Other than that amendment I agree with it, that document.

PN340

THE DEPUTY PRESIDENT: Mr Douglas, I'm just not sure why you tender this document or attempt to tender this document as an attachment to Mr Stewart's statement Visy 1, but it's Mr Burraston that's attesting to it.

PN341

MR DOUGLAS: It formed part of the evidence with what Mr Stewart was giving and so it was being put in as part of his whole bundle.

PN342

THE DEPUTY PRESIDENT: Yes, but I mean it now depends on whether or not Mr Addison wants to cross-examine Mr Stewart on this document.

PN343

MR DOUGLAS: Your Honour it would be much safer if Mr Addison would cross-examine Mr Burraston - - -

PN344

THE DEPUTY PRESIDENT: In which case it's open to you to tender the document as a separate document, Mr Douglas.

PN345

MR DOUGLAS: Yes. Your Honour, the only reason - if I can just stop for a second. I put Mr Stewart in just as an umbrella over the top, but I understand this contains evidence which doesn't just relate to Mr Burraston. So I'm happy to tender through Mr Burraston but there's elements on this that he couldn't give evidence about.

PN346

THE DEPUTY PRESIDENT: But Mr Stewart could?

**** THOMAS GREGORY BURRASTON XN MR DOUGLAS
PN347

MR DOUGLAS: Well, in the very general sense but Mr Joyce can tidy up the last part of it.

PN348

THE DEPUTY PRESIDENT: Yes, okay. Mr Addison, just so that we understand where this sits. Are you objecting to this being part of exhibit Visy 1? I have already indicated that I intend to accept this into evidence, it's a matter of how really, Mr Addison.

PN349

MR ADDISON: It seems from Mr Douglas' own submission that it's more appropriate to tender it through this witness than to have Mr Joyce give evidence on it. Even I know Mr Stewart couldn't give evidence with regard to this, it's well before his time with the company.

PN350

THE DEPUTY PRESIDENT: Yes. I think in the circumstances I'll mark the document Visy 2.

PN351

MR ADDISON: May it please.

EXHIBIT #VISY2 HISTORY OF PAST INDUSTRIAL ACTION, DOCUMENT

PN352

MR DOUGLAS: Now, Mr Burraston, in respect of each site there has been projections made on the cost of industrial action at the rally, or the cost of the rally?---Mm.

PN353

Have you seen those calculation?---Yes, the cost impact on this document?

PN354

Yes?---Yes, I've seen those.

PN355

THE DEPUTY PRESIDENT: Are they aware, Mr Douglas?

PN356

MR DOUGLAS: Yes, they're part of the submissions. If I can just hand you this document, just as a guide. Now, you spoke to a number of managers at the various sites to quantify what that loss would be based on your understand of how long people would be out. Is that right?---Yes, I did.

PN357

Are you able to describe the methodology used by the managers?

PN358

THE DEPUTY PRESIDENT: This is the table at paragraph 29 of submissions?

PN359

MR DOUGLAS: Yes it is, your Honour.

**** THOMAS GREGORY BURRASTON XN MR DOUGLAS
PN360

THE DEPUTY PRESIDENT: Yes, thank you.

PN361

THE WITNESS: It's the lost invoice sales, they inform me. It would be the lost invoice sales for that period of time. That's what I was informed.

PN362

MR DOUGLAS: And what appears in that paragraph, to the best of your understanding that's correct?---On attachment A?

PN363

No, on the paragraphs that I just gave you?---Here?

PN364

Yes?---It appears correct.

PN365

If I can just have that document back because that's Mr Addison's document and mine's corrupted. You Honour, we say they're the losses that would be suffered if people leave those sits as we suggest they will and I seek to rely on those figures for the purpose of this hearing. In respect of Visy Paper which is where people are leaving, the plant is actually being run by staff. Can you explain the risks that attach there to that business?---Yes. The manager has told me at Visy Paper at Smithfield that one of the problems in regards to staff running that plant would be the tonnage or the output for all the period of time that the stoppage or the rally was on and even if employees weren't at work and they believe that the volume also would be down as well as there could be quality issues in regards to the paper, the finished product.

PN366

Can you tell me what efforts management have taken in the various plants to avoid this action occurring?---Yes. Management has addressed the employees, the management have had discussions with the delegates and the union to put a reasonable number as far as the delegation, the paid delegation, is concerned, management have also spoken to employees at each of the sites, individual employees at each of the sites, not every one of them, you know. On a basis as they walked around they talked with different individuals.

PN367

If delegations are not accepted at these sites and people leave the sites, are they authorised to leave on their days they are rostered to work?---No, they're not authorities by the company.

PN368

Were you aware of any flyers or posters that were distributed by the union?---I haven't seen a lot, Mr Douglas, but I noticed on the notice boards that, you know, there's some material up there from, it must have been sent to the delegates from the AMWU and that's posted up on the union notice boards.

**** THOMAS GREGORY BURRASTON XN MR DOUGLAS
PN369

Yes. I have no further questions.

PN370

THE DEPUTY PRESIDENT: Just before you sit down though, Mr Douglas, if I can just take you back to the figures. As I understand it Mr Burraston's attested to the fact that those figures were told to him by relevant managers as being the losses which he's entitled to do.

PN371

MR DOUGLAS: Yes.

PN372

THE DEPUTY PRESIDENT: He's not attested to the accuracy of those figures and if he were to do so in the circumstances that would be hearsay evidence, would it not?

PN373

MR DOUGLAS: Your Honour, besides the fact that hearsay evidence is admissible here, the weight of it, the best of - - -

PN374

THE DEPUTY PRESIDENT: Well, I think we should just stop there,
Mr Douglas. The rules of evidence equally apply in this jurisdiction otherwise it would be Rafferty's rules. However, the circumstance where the Commission is that it is not bound by them, that doesn't mean they don't apply.

PN375

MR DOUGLAS: I understand that, your Honour. What I'm saying is
Mr Burraston has spoken to managers and asked them to calculate, they have told him this is what the loss is. We'll be calling one manager to indicate so that that issue can be tested.

PN376

THE DEPUTY PRESIDENT: That was really the point of what I was arguing. The point of what I was asking you is when that was, is that the extent of your evidence as to the monetary losses to the company?

PN377

MR DOUGLAS: For the businesses that are represented by Mr Burraston, yes. We'll call specific evidence of one manager as to why that would be right.

PN378

THE DEPUTY PRESIDENT: Right, thank you.

PN379

MR DOUGLAS: Thank you, your Honour. I'm sorry for the misunderstanding.

PN380

THE DEPUTY PRESIDENT: Mr Addison.

<CROSS-EXAMINATION BY MR ADDISON [4.57PM]

PN381

MR ADDISON: Thanks, your Honour.

**** THOMAS GREGORY BURRASTON XXN MR ADDISON
PN382

Mr Burraston, just to clear up a couple of things. You said in your evidence in chief that on 30 June Kewdale in Western Australia attended the rally. That's not true, is it? Kewdale sent a delegation, did it not?---They may have.

PN383

I put it to you that there is evidence before the Commission in attachment B to
Mr Stewart's witness statement that says that Kewdale WA with regard to 30 June no employees left site except two agreed employees. You wouldn't be in a position to deny that, would you?---I wouldn't be in a position, no.

PN384

Further to that I think you also indicated in your evidence in chief that Smithfield Visy Paper went out on 1 July in New South Wales. That's also not true, is it?---I didn't say that.

PN385

I think you did?---No.

PN386

The transcript will prove me right or wrong, but regardless of that Smithfield Visy Paper did not go out on 1 July. You agree with that, don't you?---Yes, the delegation went.

PN387

Yes, there's two delegates in fact?---I'm not aware of how many delegates were
on - - -

PN388

MR DOUGLAS: Your Honour, I think Mr Burraston's evidence was he thought it was six, but it was a delegation.

PN389

THE WITNESS: It was a delegation.

PN390

MR ADDISON: Well, if I'm wrong, I'm wrong and the transcript will prove that. Now, if I can take you to Visy 2 which is a document which you've dealt with?
---Mr Addison, are we looking at attachment A Visy 2, is it?

PN391

Yes, Visy 2. Attachment A it was marked originally, his Honour has now marked it Visy 2. Can I take you to the third page of that. You'll see there is Warrick Farm listed on the top and can you see that the extent of unprotected action between 2002 and 2003 - this is the financial years on presumes - from 1 July to 30 June of that financial year there was 20.5 hours of industrial action unprotected in total?---At Warrick Farm?

PN392

At Warrick Farm?---Correct.

**** THOMAS GREGORY BURRASTON XXN MR ADDISON
PN393

How many employees are at Warrick Farm?---About 120.

PN394

About 120?---120.

PN395

So I presume from that that there's about four minutes each of unprotected industrial action, not that my maths are wonderful? There's not much, is there?
---It was a total of 20 hours and five minutes.

PN396

For all employees? For 120 employees?---Our books show it was 20 hours.

PN397

Well, that's the question.

PN398

THE DEPUTY PRESIDENT: It's a matter of what that means, Mr Burraston. I think the way it's being interpreted by Mr Addison is that the total lost hours was 20.5. Is that what you intended it to say or is the total lost hours 20.5 per employee?---No. If you - can I just have a look at this? If you go down to the bottom column, the column under that.

PN399

MR ADDISON: That's the one that deals with Smithfield, is it?---Yes, that's the one that deals with Smithfield. How the 20.5 hours has been arrived at is the addition of the part hours, the full hours that occurred per person between
1 July 2002 to 30 June 2003. That the formula to arrive at that, those hours, was exactly the same as Smithfield, but they just applied it differently there.

PN400

Well, I put it to you that 20.5 hours was the total time lost at Warrick Farm in 2002 to 2003. That's unprotected industrial action?---That's unprotected industrial action, yes.

PN401

I agree with you that there were four days lost to protected industrial action, that's clear, and your losses that you recorded, the 1.6 million in sales, clearly refers to protected industrial action, does it not? I has four days in brackets?---Yes, that's correct.

PN402

So that's your protected industrial action during the course of negotiations for a certified agreement, wasn't it?---Mm.

PN403

And in terms of unprotected industrial action the total was 20.5 hours in that year. That's correct, isn't it? Maybe I'll put it a different way around. You would agree there is no loss recorded in your loss column, cost impact column? There is no loss recorded for unprotected action at all, is there?---It refers to the four days.

**** THOMAS GREGORY BURRASTON XXN MR ADDISON
PN404

Correct. Now, if I can take you to Smithfield from there, I put it to you that the unprotected action that is listed there is in fact - if you can just have a look at the dates, I'm sure you're familiar with the dates of the certified agreement that apply at these sites - I put it to you that the unprotected action is in fact report back meetings in the main dealing with certified agreement? If you look at the most of them are 15 minute meetings?---No, that's wrong.

PN405

Well, 0.25 in there is 15 minutes, is it not?---The report back meetings at both Warrick Farm and at Smithfield were paid for. The report back meetings in regards to the enterprise bargaining agreement, the meetings in regards to reporting back on negotiations, et cetera, were paid meetings to the employees and would not show up in that column because it's shown up, report back meetings is shown up as just ordinary paid time.

PN406

Okay. So you disagree with me?---Yes, I do.

PN407

You disagree with me that they're not report back meetings and you disagree with me that they're not report back meetings relating to certified agreements? July 2002 was the time your 2002 certified agreement was negotiated, was it not?
---July when?

PN408

2002. Because at that point in time you had two agreements, remember? And the New South Wales agreement was negotiated, it was agreed in around about July, August of 2002. You disagree with that? I'm either right or I'm wrong?---I'm just trying to work out when I started with the company because I know there was a workplace agreement when I started the company and it was, I started with the company in February 2002.

PN409

Anyway, if you can't remember you can't remember?---I can't understand your question.

PN410

If you can't remember you can't remember, it doesn't matter that much. Now, in terms of the last page you agree there has been no industrial action and the period dealt with seems to be in this document 2002 to 2005. That's correct, isn't it?
---Yes.

PN411

There's been no industrial action at Gepp's Cross in South Australia?---No, not for a number of years.

**** THOMAS GREGORY BURRASTON XXN MR ADDISON
PN412

And there's been no industrial action at Visy Paper? Sorry, my apologies, I'll withdraw that. And in terms of Shepparton there has been - okay, I apologies. I understand you are not in a position to give evidence with regard to the VisyPak sites, only the Visy Board sites?---That's correct, Mr Addison. Yes, I can't do that.

PN413

Okay, my apologies. In terms of the Kewdale at Western Australia site which is on page 2, this unprotected action you say that occurred on 30 June, as I understand your evidence two delegates were sent to the rally by Visy Board. That's correct, isn't it?---Kewdale?

PN414

Kewdale WA at page 2 attachment A?---We don't have a Visy Board at Kewdale. It's TPC, it's specialities.

PN415

Well, this attachment Visy 2 says, as I read it, that on 30 June 2005 - - -

PN416

MR DOUGLAS: Your Honour, that's my fault. That's not Mr Burraston's fault, that's my fault. That shouldn't have been included, I apologise for that.

PN417

MR ADDISON: Yes, I think that's right, your Honour, and that's the point I was trying to make. I think my friend concedes that that should be struck from Visy 2 and I'd be happy if that was the case, your Honour. So can I strike that?

PN418

THE DEPUTY PRESIDENT: Sorry, are you talking about the whole Kewdale?

PN419

MR DOUGLAS: Yes, your Honour. On page 2 of attachment A which is Visy 2, for reasons which it wasn't unprotected industrial action and I have wrongly included that, that's my error and I'm sorry that I've misled Mr Addison and the Commission.

PN420

THE DEPUTY PRESIDENT: Yes. It's in evidence at the moment, Mr Addison. I'll leave it as such. It will be treated appropriately.

PN421

MR ADDISON: I was just suggesting that if we just put a cross through it, we don't need it struck from the record.

PN422

THE DEPUTY PRESIDENT: Well, you can do that.

PN423

MR ADDISON: I'm happy with that, your Honour.

**** THOMAS GREGORY BURRASTON XXN MR ADDISON
PN424

Now, can I take you to the proposition that you put earlier with regard to loss, paragraph 29 of the submission which you haven't got in front of you because I've got it back. But Mr Douglas showed you paragraph 29, do you recall that?
---I recall him showing me a document. I am not aware if it was paragraph 29.

PN425

MR ADDISON: Can I get a copy of yours?

PN426

MR DOUGLAS: No because mine's wrong, I keep stealing yours. I took yours, remember?

PN427

MR ADDISON: Okay, let's just see how we go. As I understand your evidence you asked the managers to tell you what the projected loss would be should employees determine to leave the sites on 15 November. Is that correct?---That's correct.

PN428

And you were told by the Shepparton site, for instance - - -?---No, not Shepparton. That's VisyPak.

PN429

So you were told by the Kewdale WA site that if the employees would leave the site there would be a loss of $15,000. Is that correct?---Correct.

PN430

Now, as I understand your evidence you said it was based on invoice sales lost. Is that correct?---That's how I understand it.

PN431

It presumes a full day's loss, does it not?---They've calculated that on a full shift. Yes, a full days loss, yes.

PN432

So of employees for the sake of the argument were to leave the Kewdale site and attend a political rally or a girl guides convention or whatever it might be for four hours and then come back to work, the loss would be 50 per cent of what you have listed here?---Yes, I would say that's correct.

PN433

Now, in terms of WA the employees as I understand it start work at 6 am?---At Kewdale?

PN434

Yes?---I'm not aware.

PN435

I am advised that that's the case. You're not in a position to deny that, are you?
---No, I'm not. I'm not in a position to deny that.

**** THOMAS GREGORY BURRASTON XXN MR ADDISON
PN436

Okay. And Kewdale works a day shift only. That's correct, isn't it?---I'm aware of that, yes.

PN437

I'm advised, and once again I don't think you're in a position to deny it and I don't know whether we can get someone to give evidence with regard to this, but the employees finish at Kewdale at 1 o'clock. That's correct, isn't it?---I'm not aware. I'm not aware what time they finish.

PN438

Well, let's presume they start at 6 and finish at 1 and hopefully we'll get somebody in the witness box at some point that can give evidence.

PN439

MR DOUGLAS: Your Honour, we won't have somebody in the witness box to clear that up.

PN440

MR ADDISON: Your Honour, I'm not in a position to call Western Australian people to the stand today, so I may have to rely on my friend to provide some information and I may call on that. I think that's reasonable in these proceedings.

PN441

THE DEPUTY PRESIDENT: Just continue with your cross-examination with this witness.

PN442

MR ADDISON: So I put it to you that employees start at 6 and they finish at 1 in Kewdale. You know what time the proposed political rally in Perth is set for, don't you?---It's a time difference there of three hours.

PN443

Yes, but the rally in Perth starts at noon, doesn't it?---At noon, it starts at 9 o'clock or something in the eastern states. Yes, noon, I've heard about noon, yes.

PN444

So let's presume that employees of Kewdale were prepared to attend the political rally because they wanted to - and let's presume it was all the employees at Kewdale - the actual loss would be one hour. That's correct, isn't it?---It would be right.

PN445

That's right. And if it was one hour it would be an eighth of $15,000 we're talking loss at Kewdale, wouldn't it, based on the figures you've got here?---Based on the figures, yes, that would be correct.

PN446

Now, how much do you pay employees on average? What's the average rate of pay at Kewdale, about $15? Let's say thereabouts a week, as I understand it which probably shows - - -?---If that's what's in the agreement.

**** THOMAS GREGORY BURRASTON XXN MR ADDISON
PN447

That's what the certified agreement says. I'm happy for you to have a look at it?
---No, I accept that. About $20 an hour.

PN448

$20 an hour?---Yes.

PN449

And how many employees are at Kewdale?---I think there's something about 16 or 17 I was told today.

PN450

So if all of the employees, all 16, decided to go to that political rally, I presume you wouldn't pay them for an hour, would you? You wouldn't pay them between 12 and 1?---Yes, so they wouldn't be paid. That would be correct.

PN451

So you'd lose an eighth of $15,000 in terms of invoice sales, which is $2000? Less, $1500? No, it's a bit more than that. About $2000, but you'd make up 16 times $20 on that in wages as well, wouldn't you?---You would, yes.

PN452

So the actual losses aren't $15,000 at all. The actual losses, if we were to factor it in properly, would be somewhere in the vicinity of $1200. That's correct, isn't it?
---On those figures that's correct.

PN453

Yes. Now, that's true for all the sites that you look after, isn't it? You've said for instance that in Warrick Farm the loss would be $400,000. As I read what you've got here you say that equates to $26,667 per hour for two shifts at seven and a half hours per shift. So if there was a stoppage for, as I understand the evidence that you put forward, 15 hours then there would be a loss, and this is invoice sales loss, there would be an invoice sales loss of $400,000. But we know it's not 15 hours even if the worst was to happen, even if people were prepared to attend the political rally you would have a loss of four hours or thereabouts. So you would have to discount that $400,000 - you would have to do the maths - but it would come to something in the vicinity of $120,000, $130,000, wouldn't it? It wouldn't be $400,000, would it?---We're talk about Warrick Farm now?

PN454

Yes?---Okay. If what happened on 1 July is repeated at Warrick Farm, $400,000.

PN455

Well, I'm going on your evidence. The evidence you put forward says - I'm not quite sure how you get here - - -

PN456

MR DOUGLAS: Your Honour, I want this put correctly because what
Mr Burraston said is both shifts would go out at Warrick Farm, what's being put to him is only four hours - that's not what Mr Burraston's evidence was and it's not right to put what his evidence wasn't.

**** THOMAS GREGORY BURRASTON XXN MR ADDISON
PN457

MR ADDISON: No, I'm not telling Mr Burraston what his evidence was. I'm saying is if employees went out for four hours for a political rally of four hours then that's the stoppage. Mr Burraston's agreed with that.

PN458

THE DEPUTY PRESIDENT: Well, he's asking a question, Mr Douglas. I think it's a legitimate question in the circumstances for Mr Burraston to answer.

PN459

MR DOUGLAS: Yes. Sorry, your Honour.

PN460

MR ADDISON: All I'm putting to you, Mr Burraston, is this. That the figures you've provided say this. They say the cost impact will be $400,000. That equates to - and this is where I don't understand the maths - but you say that equates to $26,667 per hour for two shifts at seven and a half hours per shift. So I presume what you say from that - and believe me I haven't done the maths in the end because I'm not that great - but I presume what you're saying is that of the 120 personnel at Warrick Farm, they produce $26,667 worth of invoice sales every hour and if both shifts would be to stop which would be a total of 15 hours then the loss would be $400,000. Is that correct? Am I reading that correct?
---That's correct. That's the two shifts, seven and a half hours each shift.

PN461

That's right?---That's right.

PN462

Now, what I'm putting to you is if the worst was to happen, if this theoretical stoppage that we're talking about was to occur and people would go off the job for four hours to attend this theoretical stoppage then the loss would be less than that, wouldn't it?---If they were to do that, that's correct.

PN463

It would be $26,000 times four?---That's per hour. Yes, that's correct.

PN464

$26,000 times four hours lost?---Yes.

PN465

Which would come to about $104,000. It's actually a bit more than that, it's more like $106,000 because it's $667 at the end. So the total loss would be around about $106,000?---That's for a four hour, yes.

PN466

And of course you've got 120 employees at Smithfield - Warrick Farm, I apologise.

PN467

UNIDENTIFIED SPEAKER: No, not Warrick Farm. We've got 157 on their advice.

**** THOMAS GREGORY BURRASTON XXN MR ADDISON
PN468

MR ADDISON: Yes, we've got a bit of a difference here. In terms of paragraph 29 you say there's 120 personnel, in terms of earlier on in the submissions you say there's 157?---In whose submissions?

PN469

These submissions that we're talking about which have been filed on behalf of Visy. On behalf of Visy they say that there's 157 employees at Warrick Farm, at the beginning of the submissions and you say there's 120 at the back end. Can you just clear that up? Is it 157 or 120?---There's 120.

PN470

120?---Yes.

PN471

And you won't pay those 120 for four hours if they went off either, would you?
---No.

PN472

No. So their wages wouldn't be paid, and therefore, their wages would come off any loss that was incurred in terms of invoices?---Correct.

PN473

Yes. Now, you'd make up some of that lost production in overtime, wouldn't you?---I don't allocate the overtime. However, we're at our peak period at the moment and busy, it's peak time for us at the moment and in regards to rostered overtime, it would be difficult to make that up in overtime.

PN474

What, so you don't work - you're not telling me that you don't work employees overtime, are you?---No, they work overtime.

PN475

They work overtime?---There's quite a bit of overtime work, but it's maximum overtime being worked at this particular stage, I believe.

PN476

Yes, work every day. Work overtime every day?---Some days - it depends on the individual. Some people work most days, some people might only - might only work two days. You know, it's a - but there is a lot of overtime being worked.

PN477

That shortfall would be made up from existing stock and would be made up or caught up with overtime over a period of time, wouldn't it?---We don't carry stock.

PN478

Yes, well, it would be made up from overtime over a period of time, wouldn't it?
---Well, it's probably a question I'm not able to answer. I'm not an operations manager. However - - -

**** THOMAS GREGORY BURRASTON XXN MR ADDISON
PN479

THE DEPUTY PRESIDENT: If you don't know, you don't know, Mr Burraston.

PN480

MR ADDISON: Well, that's right?---I've got no idea how long it would take.

PN481

Okay. Now, without laboriously going through each of the plants, what we've just discussed is true in each of the plants, isn't it? That the loss that you project at paragraph 29 is based on a full shift - or two shifts in some cases, where you say two shifts, and in fact, if the worst was to happen and this stoppage was to happen, you would have to divide that loss by the actual time that people take off?---Yes, that calculation was based on full shifts.

PN482

Yes, that's right. That's right. Okay. Now, you've given evidence with regard to discussions that I think you've been involved in, in New South Wales with regard to the current position we're in. As I understand your evidence, and if I'm wrong please correct me, but as I understand your evidence, Visy took a decision to approach the delegates and say to the delegates some time in late October or early November, look, we know there's a rally coming up. We prefer you send a delegation, that's correct, isn't it?---Yes, we've offered - we offered a reasonable delegation, that's correct.

PN483

Right. You approached the delegates?---Correct.

PN484

Okay, and that's true on every site?---All the sites I'm aware of, yes.

PN485

Yes?---Yes.

PN486

Now, on some of the sites, you approached the delegates and you said, look, we'd prefer you send a delegation rather than anything else, the delegates have said, yes, no worries, fixed. We want 20, you said, you can have 10, you've negotiated a settlement and a delegation will be going. That's true, isn't it?---None of the negotiations I've been involved in transpired like that. But I've been - - -

PN487

Well that's my characterisation. I apologise?---Okay. There's been agreement reached. There has been agreement reached between the delegates and the company and endorsed by the employees.

PN488

Yes. On 10 or so sites - - -?---Whatever, 10 or so sites.

PN489

- - - employees have agreed that they will happily send a delegation. Now, on some sites, you haven't got an answer yet; that's true, isn't it? For instance, on the Smithfield, New South Wales site, your evidence was that you went to the delegates and you made an offer to the delegates that they should send a delegation. There was a meeting on 2 November or thereabouts where the delegates said, not good enough. And I can be corrected on this, but I think you said in your evidence that the original offer was about 10 and then you upped the offer to about 12 and there was some further consideration and the delegates came back and said, "Not good enough" and you increased the offer to 16 and as I understand it, that offer went on the table last night or this morning?---No.

**** THOMAS GREGORY BURRASTON XXN MR ADDISON
PN490

No?---No. The 16?

PN491

Yes?---No, that went on the table yesterday morning about 9.30.

PN492

Yesterday?---Or 10 o'clock. 9.30 or 10.

PN493

So it went on the table yesterday?---Mm.

PN494

As I understand your evidence, you've said, "That's on the table" and you're waiting for a response and you haven't had a response yet?---I'm - as of midday today, I hadn't heard back from the operations manager, Smithfield, as to whether there'd been a meeting convened to consider that.

PN495

So you've put an offer on the table to the delegates, one presumes, or to the organiser and you're yet to have an answer?---He hasn't come back to us with an answer.

PN496

Yes. So it hasn't been rejected and it hasn't been accepted. It's a normal part of negotiation, is it not? That's correct, isn't it?---One would expect that an offer that went on the table at 9.30 yesterday morning and - would have been put to the employees quite quickly, that hadn't happened.

PN497

Well, the organiser's Matt Lowe? The organiser is Matthew Lowe? That's correct, isn't it?---It's Matthew, yes.

PN498

Yes. And Matthew Lowe is also the regional secretary for the Printing Division of the AMWU in New South Wales, isn't he?---Correct.

PN499

And Matthew Lowe has been in Melbourne for the last two days, and in fact, was on an aeroplane about 10 minutes before we got to the Commission, and you know that, don't you?---I knew - yes, Matthew told me he'd be in Melbourne for a few days. That was the other - that was earlier in the week.

PN500

Yes. So the organiser that's responsible for the site has been at a superannuation conference in Melbourne and you're surprised that there hasn't been a mass meeting to consider your offer yet? Why the surprise?---Well, he had another organiser that came out to a plant at Smithfield the other day on another issue.

PN501

Yes, he may have. Often in negotiations, people will take a bit of time to get back to each other; that's true, isn't it?---Under these circumstances, you do it quite - expediency. You're quite expedient with your reply.

**** THOMAS GREGORY BURRASTON XXN MR ADDISON
PN502

I would have thought, we're all experienced in these - you're certainly an experienced negotiator, aren't you?---I've had - I've had my times.

PN503

Yes, a union official, you're a national AR manager. Been around the block once or twice?---A few times.

PN504

As we all have?---Yes.

PN505

And you would know the same as I know it's not unusual for a bit of time to elapse before responses are given; that's true, isn't it?---Depending what the issue is, yes.

PN506

Yes. Now, the same is true in Warwick Farm, isn't it? You've put an offer on the table, the offer is 12?---Yes.

PN507

You have not had a response one way or another with regard to that 12, have you?---Yes.

PN508

What's the response been?---The response they didn't put the 12 offer to the employees when they had the meeting.

PN509

Yes. So what does that mean? You haven't had a response one way or another yet, have you? There's been no decision of the employees, has there?---There's been no decision of the employees because they had nothing to - there was nothing for them to consider.

PN510

But there's been no decision of the employees one way or another, has there?---In regard to the 12?

PN511

Yes?---No, because they haven't - it hasn't been put to them.

PN512

It hasn't been put to them yet. One presumes it may be put to them. You don't know whether it had been put to them, do you?---Do I?

PN513

Yes?---Yes.

PN514

Do you know if there's a mass meeting due on Monday?---I was informed by the operations manager there's a mass meeting on Monday.

**** THOMAS GREGORY BURRASTON XXN MR ADDISON
PN515

Yes. You were informed by the operations manager there's a mass meeting on Monday?---Correct.

PN516

Yes. Now, similarly in the other sites that you have responsibilities for, you have not been told - I put it to you that you have not been told by an official of the AMWU or anybody else from the AMWU, whether it be a delegate, an official or an officer, that people will not attend to work on Tuesday, have you?---We have been told that there will be an effort to have maximum participation at the rally.

PN517

That's correct. That's correct. You have been told that?---We have been told that, at each of our sites, whether it be by an official or the delegate.

PN518

That's right. You have been told by officials of the AMWU that they will be encouraging people to attend a rally. That's correct?---Yes.

PN519

Yes. You have not been told there will be any industrial action, have you?
---They're saying they - that they will be attending and reserving the people's rights to attend a public rally.

PN520

Indeed. People have got a right to attend a rally, haven't they?---People do have a right to attend a rally.

PN521

That's right?---However, yes, it does affect the volume and the business and it affects employees' wages at the same time so that - - -

PN522

You have not been told that any employee will stop work to attend the rally, have you?---No, I've been told that they are encouraging maximum participation in the rally.

PN523

That's right. It's a matter of record that every union in this country is attempting to maximise attendance on the streets of Melbourne, Brisbane, Perth, Sydney, et cetera, on Tuesday. That's a matter of record, isn't it?---That's a matter of - well, it's a matter of what you read.

PN524

You've seen them everywhere, haven't you?---That's the first time I've seen it.

PN525

But you've seen flyers everywhere; you've seen flyers - - -?---I didn't - no, my evidence wasn't that. I haven't seen flyers everywhere. I have - I saw a circular in - on the noticeboard at Warwick Farm and one at Smithfield, but I didn't read it.

**** THOMAS GREGORY BURRASTON XXN MR ADDISON
PN526

That's right, and you know that all unions are looking to maximise participation at this rally, yes?---By encouraging people to attend?

PN527

By encouraging people to attend? Yes?---I'm aware of that.

PN528

Yes, but nobody has - - -?---I'm aware of that in Visy, yes.

PN529

But nobody has told you that there will be a strike on Tuesday, have they?---No, nobody has told me.

PN530

Now, you said - no, I withdraw that. I have nothing further for this witness - yes, sorry. Sorry, I have missed one thing. I do apologise. Gepps Cross?---Yes.

PN531

179 employees, is that correct?---How many?

PN532

179, or thereabouts?---About 173. Whatever, yes.

PN533

It's the ballpark, it's the ballpark. You gave evidence that you understood a bus would be at the plant at 8 am on the morning of 15 November?---Next Tuesday, yes.

PN534

A single bus?---A bus.

PN535

A bus, yes. Normal seating capacity for a bus is about 50?---Depends how big the bus is.

PN536

Depends how big the bus is?---I know - I've been on buses with 60, you know, but say 50, I would think that's right.

PN537

Yes, 50 or 60; that's fine. And that bus will be there to pick up any employee that wants to attend the rally?---Correct.

PN538

You're aware that your manager has said to people, I don't care whether people attend or not?---I'm not aware of that.

PN539

I put it to you that's what was said?---I'm not aware of that.

PN540

I put it to you that not only has your manager said to those employees who will be rostered off who are afternoon shift employees and who are proposing to attend, but he's also said to employees rostered on that he doesn't care whether they attend or not?---I'm not aware of that statement. I haven't been informed of that.

**** THOMAS GREGORY BURRASTON XXN MR ADDISON
PN541

Okay. Nothing further, your Honour.

PN542

THE DEPUTY PRESIDENT: Thank you. Is there any re-examination, Mr Douglas?

PN543

MR DOUGLAS: Just briefly, your Honour.

<RE-EXAMINATION BY MR DOUGLAS [5.35PM]

PN544

MR DOUGLAS: Mr Burraston, you were asked questions about Warwick Farm, the maximum amount of time would be four hours and it was suggested that you could extrapolate that across all the business that they just go to a rally, if that was the worst case. Your understanding from the 30 June/1 July rally, was it just four hours at these sites that people took off?---No, well they were full shifts.

PN545

And were there times when they were mirrored on the afternoon shifts?---Yes.

PN546

Yes. A question was just asked then about not being told that any employees were going to stop work to attend the rally; are you aware of any discussions between managers with employees that would reflect that employees rostered on work would not be attending?---Could you ask that question again?

PN547

Sorry. It was a - are you aware of any evidence, from speaking to managers, that employees who are rostered to work at the time of the rally, will not be attending?

PN548

MR ADDISON: Your Honour, I think I object to that. I mean, at best, that's got to be hearsay. At best.

PN549

THE DEPUTY PRESIDENT: Yes, Mr Douglas, and it's possibly hearsay upon hearsay.

PN550

MR ADDISON: Indeed.

PN551

MR DOUGLAS: Yes, your Honour. Okay. I have no further questions.

PN552

THE DEPUTY PRESIDENT: Yes. You can stand down. Thanks,
Mr Burraston, for giving your evidence?---Thank you, your Honour.

<THE WITNESS WITHDREW [5.36PM]

PN553

THE DEPUTY PRESIDENT: Yes, Mr Douglas?

PN554

MR DOUGLAS: Mr Lymberis, your Honour.

<JOHN LYMBERIS, SWORN [5.37PM]
<EXAMINATION-IN-CHIEF BY MR DOUGLAS

PN555

MR DOUGLAS: Mr Lymberis, are you the general manager of operations for Warwick Farm in Visy Board?---Yes, I am.

PN556

Could I just take you to what occurred on the national day of action on
1 July 2005? Can you explain to the Commission what occurred leading up to that?---Your Honour, on 9 June, the union chapel, by the name of Mark Peters, FOC, Ron Loveridge, union delegate, came and saw me about a stop work meeting organised for 16 June at Warwick Farm. I asked them, what was it about? They said it was regarding the federal workplace changes and they wanted to advise the members. I said, well, do I have any say in this? Do you have to stop work on both shifts? Can we do it during our lunchbreaks, morning tea breaks? Is there any negotiation? They said, no, we've organised Matthew Lowe, the union organiser, to come out and address the people. I said, are you aware it's an unauthorised stoppage? He had nothing to say. On 28 June, they had another stop work meeting, which we agreed to pay for that, on the basis that straight after 16 June, we advised the union chapel to consider a delegation - - -

PN557

THE DEPUTY PRESIDENT: Sorry, Mr Lymberis, are you reading from something?---No, I'm just thinking about - - -

PN558

Is there something in the stand that you have with you, as far as your notes are concerned?---Just handwritten notes that I did for myself.

PN559

Yes. Well, perhaps you could just put those aside and answer the questions?
---Sure.

PN560

MR DOUGLAS: Right. You were talking about 16 June and offering a delegation and - - -?---12. 12.

PN561

Yes, okay. If you could go from there?---Yes. So we offered a delegation of 12 and that was basically knocked back.

PN562

All right. When you say it was knocked back, what occurred?---We asked them to consider in their meeting on the basis that they came to me and they said, well, if that's all right with you, we'll have another meeting on 28 June. I said, that's fine. You can have a meeting on 28 June. We'll have a paid-for meeting and they said, well, we'll put it to our members. I said, well, that's fine. And after the result of that 28 June, was that they weren't interested in the delegation.

**** JOHN LYMBERIS XN MR DOUGLAS
PN563

All right. Were you advised at any time that employees wouldn't attend, on 1 July?---Yes.

PN564

Can you recall what you were told?---We had discussions with the people on the floor, both dayshift and afternoon shift and we were advised that the union chapel, including Mark Peters, the FOC and the 2IC, John Muscat, went around advising people that it was recommended that they attend the rally on 1 July.

PN565

Can you tell me what numbers turned up on 1 July for work, who were expected to be at work?---1 July, 27 at Warwick Farm.

PN566

And on the afternoon shift?---None - sorry, three.

PN567

How many on the - - -?---120 on the floor.

PN568

Now, if I can just take you through to the rally; you spoke to Mr Burraston about a particular process that you were going to undertake at the plant?---Yes. We organised with Tom - I was approached by Mark Peters, the FOC, on 1 November that a meeting was being held on 7 November, and that Matthew Lowe was coming out to address the people. And I said to Mark, I said, Mark, is there any opportunity we can discuss this? Is there any opportunity we can do it during your lunchbreak and morning tea? Do you want five or 10 minutes before or after? He said, no, it's been organised, Matthew's coming out for this meeting. I said, well, you understand it's unauthorised stop work? I said, can we consult, discuss? He said, no. On 3 November, we called the chapel in, which is Mark Peters and Denis Clarke, a delegate, and we advised the chapel that, together, that Tom - through Tom, there's a little communication that we're going to put forward to the people, all employees, and basically it indicated that Visy respects the right of people to protest. Visy respects the right that they go to the rally and understand what's going on. Visy respects the right that people are informed about what's going on. However, Visy needs a business to run. Visy needs to supply its customers. We don't hold stocks. We run a business around the clock. The business is JIT. And on that basis, we'd like them to consider sending a delegation to all the people, both on day and afternoon shift, on behalf of the business, and if that delegation was agreed upon and went across, then they can come back and have a report meeting. However, we also indicated to both day and afternoon shift that if this was not agreed upon, then the people that don't come to work on 15 November will not be paid for.

**** JOHN LYMBERIS XN MR DOUGLAS
PN569

Now, was that part of a broader policy that you were advised of by Tom? Right. Can you tell me what occurred with the union after that?---They had the meeting on 7 November and I don't have much of an opportunity to speak to Matthew because he seems to make the phone calls direct to the delegates, however, prior to him coming to the business, I asked him to come and see myself and advise him that I've had a meeting with the chapel, the union chapel, I've also had a meeting with all employees and what we'd like to do is offer the union a delegation to go so it won't disrupt business. He said, fair enough. We'll consider it. They had the meeting, both meetings on dayshift and afternoon shift and at the completion of the meeting they came back and they said, it's a right. It's a community rally or community rally or public rally, we've advised all people that for those who want to attend, can attend; for those who don't want to attend, it's their right. I said, I have a problem. I said, for those that can attend, can attend. For those that don't attend, don't attend - sorry, I'm being a bit confusing. He advised me, for those that want to go to a rally, it's their prerogative to do so. For those that want to come back to work, can do so. I said to him, what about those ones that stay home? There was no answer. And I said to him, I find it strange, I said, Our afternoon shift starts at 4 pm that day. As I understand, the rally is during the course of a lunchtime, whatever it is, two, three, four hours, I don't know. I said, is there a possibility that dayshift, if they go to the rally, I can still have afternoon shift commence at 4 o'clock? There was no reply. I said, did you advise - did you have a vote, did you put it to the people like we discussed the other day, about sending a delegation so we don't disrupt the business? He said, no, I didn't go to a delegation - sorry, no, it didn't go to a vote.

PN570

Right?---I said, was it considered? There was no response.

PN571

Now, have you since had a chance to walk around the floor and speak to employees to see whether they're coming to work or not?---Daily. Hourly. Nightly. Every hour of the day through the supervisors, through myself.

PN572

For those who are rostered on the 15th, both day and afternoon, what is your understanding of the amount of people who will come to work?---Feedback that we've got back as of yesterday morning - as of yesterday afternoon, I should say, and as of this morning, I've got approximately 30 people that have said yes, they'll attend work. I've got approximately 43 people that have said, no, they're not attending and I've got 40 people that are undecided. That is from the ones that I've asked, Nick - Mick, Joey, on afternoon, I said, can you give me an answer? They said, boss, sorry, can't give you an answer. I said, why? I need to run the business, I need to know what's going on. They said, boss, can't give you an answer. Bit confused. Don't know. I said, well, basically all that tells me is it doesn't look very good for you guys coming in and they just nodded their heads. I was approached by a forklift driver yesterday afternoon who called me up, said, hey boss, I am very sorry. I said, what are you sorry about? He said, boss, I'm sorry because I'm going to lose $200 a day for not coming in and I really prefer to be at work. However - I said, well, please, come. The doors are open. I don't have a problem. He said, boss, the problem is not you. The problem is not cop intimidation, we work as a team here and if they find out I'm not coming in, I'm not going to work as a team, they're going to ice me, in his words "and it'll make by job a lot harder".

**** JOHN LYMBERIS XN MR DOUGLAS
PN573

Can I just take you to the calculations you've done as to the loss that you will suffer?---Yes.

PN574

In respect of that loss, what are the assumptions underlying that loss?---Is that the 400,000?

PN575

Yes?---It's $400,000, for one day. That's what I'll lose - - -

PN576

So the assumption is that you'll lose staff for the whole day?---Yes. Both shifts.

PN577

What's that based on?---Cost of production. Cost of sales out the door.

PN578

But the assumption about the people not attending?---People - correct.

PN579

Yes. Yes, I don't have any further questions, your Honour.

PN580

THE DEPUTY PRESIDENT: Good. Thank you. Mr Addison?

PN581

MR ADDISON: Thanks, your Honour.

<CROSS-EXAMINATION BY MR ADDISON [5.48PM]

PN582

MR ADDISON: Maybe I'll start where Mr Douglas left off. The assumption is that employees would not attend for 15 hours; that's correct, isn't it?---No, not really, because this time of the year, we're running flat-out and the guys are usually working 10 or more hours a day. So I've just used an estimate - my main aim is to get $400,000 a day. That's my budget.

PN583

Okay?---At this point in time. If the guys don't come in, then that's what I lose for the day.

PN584

So the $400,000 budget that you've got, that you need to make - - -?---Correct, and service the accounts.

PN585

- - - the assumption is two shifts working 10 hours?---Correct. Whatever is budgeted for.

PN586

So in fact if you lost 20 hours, your loss would be $400,000?---Correct.

PN587

Correct. So indeed, that is if the employees were to go off for then four hours, it would be 400,000 divided by 20 multiplied by four, wouldn't it?---The employees aren't going off for four hours. The employees are going off for 24 hours.

**** JOHN LYMBERIS XXN MR ADDISON
PN588

Well, well, on what basis do you say that?---Because on 1 July they went out for 24 and they're telling me now they're going out for 24.

PN589

Who's told you they're going out for 24?---The guys on the floor that I speak to every day.

PN590

Who? Who?---The guys on the floor that I speak to every day.

PN591

Well, you've just told his Honour about a forklift driver who spoke to you?---Yes.

PN592

Did he tell you he was going out for 24 hours?---It's his shift. I'd speak to both shifts. He's not in that shift.

PN593

Did he tell you he was going off for 24 hours?---He's not going to come in that day. That's what he's telling me.

PN594

Is that what he's told you?---That's right.

PN595

I'm not sure that's what you just said, is it?---That's right. He's not able to come in.

PN596

Well, that's what you said - - -?---And he's not the only one.

PN597

He's not the nightshift employee, did you say?---Dayshift employee.

PN598

Dayshift employee? All right. And you said you've got 30 employees who have told you they definitely will be coming in?---At this point in time, correct.

PN599

Yes. Okay. Okay. So we've got a loss of $400,000 which assumes a stoppage for 24 hours, is that correct?---Correct.

PN600

Thank you. You would normally work in a day 20 of those 24 hours?---Correct.

PN601

So you'd have four hours where you didn't work?---Correct. Thereabouts.

PN602

Thank you. So the 400,000 assumes 20 hours' lost production. Can I ask you, $26,667 you say per hour is the loss that you would suffer?---That's an estimate, correct, per hour.

**** JOHN LYMBERIS XXN MR ADDISON
PN603

Okay. What's that estimated on?---Probably seven and a half hours, 15 hours - - -

PN604

No, no, no, I accept that, but the $26,667 seems a pretty precise figure?---It's based on $400,000. It's just an average estimate that we use.

PN605

All right. So all you've done is taken $400,000 which is your day's
production - - -?---Correct, and just divided by two shifts.

PN606

- - - and you've just divided by seven and a half - - -?---On two shifts.

PN607

- - - by two?---Correct.

PN608

Thank you. But that would be a wrong sum, because you should have taken the 400,000 and divided by 10 and then divided by two. That's correct, isn't it?---My main aim is to get $400,000 out the door - - -

PN609

I know what your aim is, I know what you're aim is, I'm just trying to boil it down, what we're actually talking about in terms of losses?---If the guys are productive, I do it in seven and a half hours. If the guys aren't productive, I do it in 10 hours. If the guys need to do it in 12 hours, they'll do it in 12 hours.

PN610

So in other words, it's an absolute guess?---No, it's not. It's what I need to get out every day.

PN611

It's what you need to get out?---It's an efficiency. If the guys don't perform, they stay back and do the efforts and the work.

PN612

Okay. Okay. Now, you approached the delegates and asked the delegates if they would put a delegation on?---Correct.

PN613

And you did that, as I understand your evidence, on the 9th - sorry, my apologies. Let me backtrack on that. That was 9 June that you were talking about earlier; 3 November, is that correct?---Correct.

PN614

Okay?---Yes.

PN615

So you went and you saw them and you said, "We'd like a delegation to go on the 3rd?---Correct.

**** JOHN LYMBERIS XXN MR ADDISON
PN616

They got back to you, when?---Straight away after the 7th.

PN617

After the 7th?---When they had their - - -

PN618

So when they'd thought about it until the 7th?---When they had their industrial stoppage, correct.

PN619

So they thought about it until the 7th?---Yes.

PN620

And then they came back to you and had a chat?---Well, they came back and gave me the feedback. When I asked them, did you put a delegation forward as per our discussion the other day and our discussion with the people on the floor? their answer was, we didn't put a delegation to the people.

PN621

Right. So that was on the 3rd, was it?---No, that was on the 7th, after their meeting. Their stop work meeting.

PN622

Okay, on the 7th, okay. And have you put anything - - -?---Unpaid for.

PN623

- - - back to them since that?---No.

PN624

Since the 7th? No?---No, because they're not interested.

PN625

Why do you say they're not interested?---It's - that's a feedback - that's a body language I get. If they're interested, they've had opportunities to discuss with me, they haven't done so.

PN626

See, we've just had evidence from Mr Burraston, where he - he's the national IR manager, that's correct, isn't it? He'd be in contact with you over the staff, wouldn't he? Has he given you advice with regard to this?---To a certain extent.

PN627

Yes. You see, Mr Burraston has just given us evidence with regard to Smithfield, which isn't far from you, is it?---Correct.

PN628

Just around the corner, correct?---Half-hour.

PN629

Yes, half an hour, just around the corner. And down there, there's negotiations - there was an offer of a delegation and they both said, no, no, no, we're not happy with that?---I'm aware of that.

**** JOHN LYMBERIS XXN MR ADDISON
PN630

And then Mr Burraston put another offer and the delegates said, no, still not happy with that, and then another offer's gone in and Mr Burraston's evidence was, we put an offer on the table yesterday with regard to that and he's waiting for a response on that. Why a different approach to Warwick Farm?---I'm not sure about Smithfield. I run Warwick Farm.

PN631

Well, my question's not about Smithfield. You see, what I'm saying to you is Mr Burraston is advising you and you agreed with this, you work very closely together as I understand it?---Mm.

PN632

Work in the same office in fact, is that right?---Not really.

PN633

But very close?---We work in the same plant.

PN634

Work in the same plant, and Mr Burraston's evidence was with regard to Smithfield which is a plant which is 30 minutes away from you, was as I've just described it. Offers, discussions, you say to me you made an offer on the 3rd, the blokes had a meeting on the 7th and the blokes said on the 7th, no, not interested, no and you cut it there. Is that your evidence?---I haven't had any feedback from the people so far. Or from the union chapel.

PN635

You've made no attempts since the 7th, have you?---I've made several attempts.

PN636

What attempts? Have you made further offers since the 7th, have you?---No.

PN637

No?---No.

PN638

Right. Your plant has both - it has a two-shift system, doesn't it? Correct?
---Correct.

PN639

You would agree that any of your employees on the afternoon shift, for instance, and this presumes the rally is at 10 o'clock in the morning, I'm making that presumption, I presume it is in New South Wales?

PN640

MR ADDISON: 9 o'clock in the morning. So you would agree that any employee who was rostered to work afternoon shift on the 15th is perfectly entitled to attend the rally?---I hope so, but the feedback coming back now is if dayshift go out, afternoon shift won't come to work either.

**** JOHN LYMBERIS XXN MR ADDISON
PN641

Yes. You haven't have been told that dayshift is going out, have you?---The guys on the floor are telling me they're not attending work on the 15th.

PN642

Has a union official told you that?---Sorry?

PN643

Has any union official told you that?---Tuesday afternoon, I was walking around the factory. I talked to Joe Muscat, afternoon shift 2IC. He was off his forklift collecting money off two guys. I went up to him, I said, what are you doing? What's the money for? Sorry, sorry. I said, What's the money for? He said, I'm collecting money for the bus trip on Tuesday, the 15th. I said, please get back on your forklift, continue your work, and if you need to get off your forklift, please seek supervisory assistance.

PN644

Yes?---I said, Joe, why are you collecting money? He said, it's for the bus trip on Tuesday. I said, what are you telling me, Joe? He said, I'm not telling you anything, but at this point, we won't be here.

PN645

Okay. Okay, okay. So you say that amounts to you being told - - -?---That's a 2IC.

PN646

Well - - -?---He's a deputy FOC.

PN647

Well, if you wait, I'll finish the question and then you can answer it. Are you telling me that that amounts to you being told that all of the employees will not be there on Tuesday?---There's enough information that I received off the floor to tell me that the majority of the people won't be there.

PN648

See, I put it to you that you are taking bits of information from here, there and everywhere and coming to a conclusion which is in fact a guess. That's correct, isn't it?---No.

PN649

No? You say it's not a guess?---No.

PN650

I see?---Because if the guys were interested about doing a deal with me or doing the right thing by the people and the business, then they would have negotiated something or worked around something.

PN651

Bit hard for them to negotiate when you stop talking on 7 November, though, isn't it?---I don't stop talking. I talk to the people all the time.

**** JOHN LYMBERIS XXN MR ADDISON
PN652

Is that right?---Mm.

PN653

Well, you're taking a very different approach to that taken at Smithfield, aren't you?---I don't know what happens at Smithfield.

PN654

Well, I've told you, haven't I? I've told you what's happened at Smithfield. There's been an offer put on the table some time ago - - -?---Okay, but as far as I'm concerned - - -

PN655

- - - it was rejected and then there was another offer which was rejected and then there was another offer yesterday - - -?---Today is Friday.

PN656

- - - which we're still waiting for a response on?---Today is Friday. There's still no answer, so as far as I'm concerned, the agreement hasn't been reached and the offer hasn't been done, so as far as we're concerned as a business, I would consider that they're still not coming on Tuesday.

PN657

Okay. Okay. I suppose we can't help what you think?---You need to plan things in business, and at the end of the day if you don't know what's going on, you don't know what's happening, how are you supposed to plan?

PN658

I don't think I've got anything further for this witness, sir.

PN659

THE DEPUTY PRESIDENT: Thank you. Re-examination, Mr Douglas?

PN660

MR DOUGLAS: Yes, your Honour.

<RE-EXAMINATION BY MR DOUGLAS [6.00PM]

PN661

MR DOUGLAS: Mr Addison suggested that you've done nothing since the 7th to find out what the union position is. Can you just explain to Mr Addison the attempts you've made to find out what the union's position is since the 7th?

PN662

MR ADDISON: Your Honour, if I can, I think the question is a bit misleading. That's not what I suggested. I said the discussions have stopped on the 7th. The witness has already described what he's done, trying to find out what people's positions are, and sir, I think Mr Douglas mis-characterises what I put to the witness.

PN663

THE DEPUTY PRESIDENT: The question I think that Mr Douglas has asked ultimately is what Mr Lymberis has done since the 7th to find out the union position. I think that's a legitimate question arising out of cross-examination, so I'll allow the question to be answered.

**** JOHN LYMBERIS RXN MR DOUGLAS
PN664

THE WITNESS: Sure. I've continued to talk to the people. I've continued to try and talk to the union about sending a delegation. Not formal, informal. "Is there any position we can do? Would you like to reconsider more numbers?" This is all informal. Because the discussions take part every day.

PN665

THE DEPUTY PRESIDENT: Discussions with who, Mr Lymberis? When and where?---The discussions with both - - -

PN666

I mean, you say it's informal, but it must be with somebody at a particular time?
---There's two - out of the union chapel that we speak to, we speak to Mr Mark Peters, FOC, I speak to a Joe Muscat, 2IC, I speak to Denis Clark who's a delegate on dayshift. I speak to Ronnie Loveridge who is the other delegate on dayshift. I speak to Mr Buendo, who is the other delegate on dayshift. All those have been consulted, all those have been communicated to about trying to ascertain whether or not the union chapel is prepared to do a deal on sending a delegation on behalf of the business and on behalf of the people. The answer is no. They're not interested at this point in time. Then I go and clarify myself with both the people on the floor and the people on afternoon shift. I get the same answer, sorry, boss, we can't give you an answer. We thought when you guys approached us on
3 November, and you offered the - and you offered to the people a delegation, we expected the union to at least consider it. It wasn't even considered on
7 November at the meeting.

PN667

MR DOUGLAS: Is there a reason why the number of 12 was chosen by you, for operational reasons?---Six on day, six on afternoon. Due to absenteeism and everything else, that's a maximum amount of people I need just to sort of maintain capacity and maintain production.

PN668

I have no other questions, your Honour.

PN669

THE DEPUTY PRESIDENT: Thank you. You can step down now, Mr Lymberis. You're free to leave or say as you choose. Thank you for your evidence.

<THE WITNESS WITHDREW [6.02PM]

PN670

MR DOUGLAS: Your Honour, there's only one more witness.

PN671

THE DEPUTY PRESIDENT: Yes. I note the time and I'm also advised that there are people with cars in the car park and it closes at 7 pm apparently.

PN672

MR ADDISON: We'll be finished by seven.

PN673

MR DOUGLAS: Yes, your Honour.

PN674

THE DEPUTY PRESIDENT: I think at this point in time, we'll go ahead with your further witness. It should give ample time, I would have thought, for anybody after that to move their cars.

PN675

MR DOUGLAS: Yes, your Honour. Mr Addison is missing his farewell event, your Honour, I'm sorry to rain on his parade. Mr Joyce.

PN676

THE DEPUTY PRESIDENT: There's been a number of times in these proceedings when I've asked for silence when the oath is taken. I won't be asking for it any more, for two reasons, I guess. There won't be any more witnesses, but I'm also tired of asking for it. It's something that people should respect.

<ROBERT IAN JOYCE, SWORN [6.04PM]
<EXAMINATION-IN-CHIEF BY MR DOUGLAS [6.05PM]

PN677

MR DOUGLAS: Mr Joyce, would you please describe for the Commission what your role is in VisyPak?---I'm the HR manager for VisyPak. I have responsibility for five sites, so it's Coburg, it's Shepparton, it's Wodonga, it's Warwick Farm, it's Clayton Plastics.

PN678

Mr Joyce, you have some documents which you've provided to me, which I'll just provide copies of. Now, Mr Joyce, I'll take you to those documents in a moment. I'll just provide those quickly. Can you briefly take the Commission through what happened on the national day of action?---This was earlier this year?

PN679

30 June, yes?---Your Honour, we had some discussions with the employees about the best way to address the national day of action. We knew from informal discussions with employees and with shop stewards that they intended to take the day off. What we were trying to do was balance their want to attend the rally with production requirements. In the past, the site had agreed to send delegations to various protest meetings and rallies, and so we had spoken directly with our employees and with the shop steward and with the organisers, with the idea of delegations.

PN680

What occurred as a result of that?---We were not getting a response either way so we wrote to them and the letters have been provided, and the reason for that was to get commitment from the union to find out what was happening. We were concerned that the employees were going to leave the site for the duration of the rally and that that was going to impact on production, so we spoke directly with the employees, with the shop stewards and with the organisers to try and get the commitment to accept what they'd previously agreed to, which was a delegation.

PN681

What was the ambit of the delegations that were discussed?---At that time, it was up to four employees we would pay for.

PN682

And the final parts of the negotiation, what were the offers that were on the table?---Your Honour, although we're a separate site from the Broadmeadows site, the Broadmeadows site, which is - we're at Coburg, they're down the road, they had - the figure of 20 had been suggested at Broadmeadows and it was thought, we understood, that the figure of 20 was going to be accepted at Broadmeadows, so I had discussions with the organiser, Mr Mavromatis, and we offered the 20 delegation.

**** ROBERT IAN JOYCE XN MR DOUGLAS
PN683

What occurred on the day?---On the day, the site went out for the time, on dayshift, and afternoon and nightshift took a corresponding time off.

PN684

Thank you. If I can bring you now to the present rally. Can you explain to the Commission what has occurred in the lead-up to this rally at Coburg?---Okay. Once again, we have had discussions with the employees, with the shop stewards, and with the organiser. This time around, the - a number of employees floated the option of a leisure day. Your Honour, under the current enterprise agreement, in addition to rostered days off, there was an agreement at Coburg for five additional days off work, they were called leisure days. So as part of the enterprise agreement, the employees forewent a wage increase so they could effectively offset the five additional days. The five additional days are to be taken before 31 December each year - - -

PN685

Mr Joyce, that's only for an eight-hour shift, though, isn't it?---It's for eight-hour shift people. And so the majority of people - your Honour, at the Coburg site, we have two buildings. The first building, material preparation, is predominantly, but not exclusively, federal graphic arts. They work eight-hour shifts and there is also some people who work metals on the flatbed latel, they also work eight hours. In the building that we call conversion, the majority of people there work under the Federal Metals Award, it's an eight hours, but there is also some people in full panel easy open-end, they work a 12-hour shift under the Metals Award. Some people working on tapered ends, so it's a 12-hour shift under the Metals Award, and your Honour, we also host for beverage, aluminium beverage ends. They make the - the top, the cap, of an aluminium beverage can. They also work 12-hour shifts. So the majority of employees on the site work eight hours and they have accrued a leisure day, and from the floor we heard that many employees were wanting to take a leisure day and we were prepared to consider that.

PN686

If I can just take you now to a document that was created by Robin Street, where two offers were put?---Yes.

PN687

Your Honour, that's in your bundle of documents. It's the document that Mr Addison referred to earlier, and it is six pages from the back.

PN688

Now, Mr Joyce, is that how this letter transpired, is it?---The memo.

PN689

This memo transpired as a result of a request coming from the floor for a leisure day?---Yes.

**** ROBERT IAN JOYCE XN MR DOUGLAS
PN690

Yes. Can you explain what the offer is clearly?---Yes. Your Honour, what we sought to do was to balance the desire of a number of employees to attend the rally with our aim to minimise disruption to production, so the first option which was agreed to by the Broadmeadows site up the road was that we would pay for a delegation of 15 employees from either day, afternoon or nightshift, and the remaining employees would continue working. The second option was that all employees working on the eight-hour shift, which is the majority of employees on the site, could apply and they'd be granted an accrued leisure day, or leisure day off, and that because we respect the fact that we have some employees on 12-hour shifts, we suggested that we would pay for a delegation of up to four people on the 12-hour shifts to represent the 12-hour shift employees and the remaining 12-hour shift employees would continue working on site.

PN691

Can you explain to the Commission what has occurred as a result of that memo?
---Your Honour, we had informal meetings with employees, but it was also put to the employees by the senior shop steward that offer to the employees on the afternoon of the 9th and the morning of the 10th, and I was advised that it's been rejected.

PN692

Have you spoken to any employees, members of the chapel or any other people, and been advised what is going to happen on that day?---I have spoken with Mr Mavromatis. I've spoken with the operations manager, the production manager, and with the nightshift manager, so for the moment, putting Mr Mavromatis to one side, they are of the opinion - so it's Mr Street who is the operations manager, Mr Fox who is the production manager, Mr Buendo who is the nightshift manager, is of the opinion, because the majority of employees have voted against the option 1 and option 2, that the employees will attend the rally on dayshift and that the afternoon shift employees and the nightshift employees will take a similar amount of time off.

PN693

Now, in industrial disputation in the past, has that always happened, that the dayshifts have been mirrored by the other shifts?---Usually, yes.

PN694

Now, could you briefly - very briefly - take the Commission through the bundle of documents before I seek to have them admitted?---Your Honour, the first letter is a letter from me to Mr Mavromatis dated 7 June. That was to confirm our position of the offer of four employees to be paid to attend the rally and also to arrange for them to have paid report-back meetings at the end of the rally. We ask at the bottom of the first letter to get written confirmation by the union within just over a week's time, to confirm that this arrangement was suitable to the union, that the union would not encourage, support or - encourage industrial action to attend the proposed reforms, and if they could also positively confirm the date and time of the rally so that when we arrange for the four people to leave the site, that we could arrange adequate manning to cover for them. The next page is the fax confirmation to - just the fax cover page to - the next memo is dated 15 June from me to Mr Mavromatis, carbon copy to John Zwort who is the senior shop steward. It confirms that t is written in confirmation of this morning's meeting, that we acknowledge that the employees would like to participate in the rally and we're still seeking to avoid disruption. We reconfirm our offer of four delegates and the offer of paid report-back meetings, and we once again seek confirmation from the union about whether the arrangements are suitable, where the union will not encourage or organise industrial action and formal confirmation of the date and time of the rally.

**** ROBERT IAN JOYCE XN MR DOUGLAS
PN695

Just moving through quickly, there was then a section 99 application brought to try and flush out what was going to happen; that ultimately led nowhere. There was no clarity as to what was going to occur, is that right?---That's correct. As a result of that, Acton SDP in transcript made a recommendation that the union put the proposals to the union - those proposals, J1 and J2 of the letters, is that I wrote for confirmation. We got no response to that, no verbal or written response to that. And subsequently the employees attended the rally.

PN696

Yes. How many did you lose across the shift?---The shift. So it was the shifts.

PN697

All right. Now, I'll come back to the costs associated with that?---Mm.

PN698

The next letter that you have is a letter to Mr Zwort. Can I just provide these documents to you and could you explain the relevance of those?

PN699

There are copies of these, your Honour, in the papers before you. There are two. There is a poster and a sticker.

PN700

Now, Mr Joyce, can you explain why these are relevant in this context?---Yes. Your Honour, we provide noticeboards through the Coburg site for employees to put union documents. Mr Zwort was seen to be attaching the stickers to pieces of equipment and also the posters were put up on, as I understand it, not on the union noticeboard.

PN701

Did this occur even after he was asked to cease?---Yes. It did. Your Honour, it is because of - what we try and do, your Honour, is that we try and - we spend a great deal of time and effort trying to smarten up the Coburg site, but we also acknowledge that employees want to have a union noticeboard and we're very comfortable for information or documents to go on the union noticeboard, but the stickers were being put on handrails, I understand they were being put on pieces of equipment, that Mr Zwort had been asked to remove them and not to continue to place them on handrails and on pieces of equipment and to which he said that he'd continue doing this. We were concerned about that, so we formally counselled him to stop defacing company property.

PN702

Now, in respect, there has now been a proposal for site meetings, site meetings have occurred, is that right?---Yes, they have.

**** ROBERT IAN JOYCE XN MR DOUGLAS
PN703

They're outside the agreed times?---Yes, they have. Your Honour, approximately a year ago, the parties came before the Commission on a number of issues and one of the issues there was about paid meetings. It was unrelated to the matter of national rallies, and subsequently the parties have come to an agreed position, that we'd have paid meetings. Your Honour, at Coburg, we have ovens. These ovens take approximately 30 minutes to shut down and approximately 40 minutes to heat up. So what we're seeking to do is to balance the union's request to have paid meetings with our aim to minimise disruption to production. If the - what we try and do is to have the paid meetings immediately before the meal break. By doing that, your Honour, we're able to avoid stopping and starting. So for example, it would be half an hour to turn a machine off, the meeting would go for something like half an hour and it would take approximately 40 minutes to start the machine up. So what we try and do is either to stagger the meetings, or when that is not possible, to at least minimise disruption to production by the timing of the meetings.

PN704

And that hasn't occurred on this occasion?---On this occasion, no it has not. You will note that Mr Zwort provided a handwritten note to Mr Street on the 9th of the 11th at 4.15 and that was some proposed meeting times. The next morning
Mr Street, the operations manager, provided a letter on how - and he agreed meeting arrangements, how and when the meetings would occur and it says at the bottom - you know, following these provisions, then they would be paid meetings. They were not held in those times, so they were not paid meetings.

PN705

Now, if I can take you to Shepparton? Shepparton was a site that didn't go out on the national day, that's right?---That's correct, yes.

PN706

Yes, and on this occasion, it's your understanding that it will go out?---Yes. Your Honour, just some background, at the Shepparton site, we effectively make cans, so we get an end and we seam an end onto a cylinder to make a can. The site currently is going through an enterprise bargaining agreement and as a result of some redundancies, some additional redundancies, we're going through negotiations to - with the union and the employees about 14 additional positions will be going. We - I've been speaking to the organiser, Damian King, regarding the drafting of the enterprise agreement and also about the - how we would arrange the redundancies and I asked him about the national day of action. I said that in the last - earlier this year they weren't involved, and did they intend to be involved this - in the 15 November. He said, yes. He said that a number of sites in the Goulbourn Valley would be out for 24 hours, that he did not intend that to occur at Shepparton. What he would positively encourage the employees to do at Shepparton was that they would take two and a half hours, from ten to 12.30 to attend the meeting, but it would only be for the two and a half hours and that he would not seek the afternoon shift to take two and a half hours off, and he would not seek the evening shift to take two and a half hours off. I advised him of the option of a delegation and he said that they would not be accepting delegations. Subsequent to that, once the organiser advised me of that I advised Steven Lanman who is the operations manager for Shepparton and as a result of that on Thursday evening, so that evening, he commenced having meetings with the afternoon shift. That night he had meetings with the night shift and this morning, on the 11th, he had meetings with the day shift. He said that he understood that Damien King was going to positively encourage the employees to take - the day shift employees to take approximately two and a half hours off at the Shepparton site, that he said that we had offered - we were prepared to offer a delegation of six employees to be paid to represent the site and that he had asked the employees to consider that.

**** ROBERT IAN JOYCE XN MR DOUGLAS
PN707

And what has occurred as a result?---That has been rejected.

PN708

If I can just show you what is called Visy 2. This is calculations of past industrial action in relation particularly to Coburg.

PN709

Are you aware of the calculation process that went into developing that costing scenario?---Yes, yes, I am.

PN710

Can you explain what that is?---Your Honour, it is to do with the, so if we are looking at - is this Visy 2?

PN711

It is called Visy 2?---Okay, Visy 2, so it is page 1, sixth column, and it is the second paragraph from the bottom so it is effectively 15 - 17 May, a four hour strike over issue of transferring employees costing VisyPak approximately $62,000 in lost production.

PN712

Is that the invoice price lost production, is it?---Yes. Your Honour, what that is to do with that was a presentation of a table to Commissioner Grainger. It was to do with, your Honour, that was in material preparation so it is building 1 where we effectively cut and coat material. We did something - the opportunity cost there is something like 240,000 passes either weren't cut, weren't varnished or weren't decorated and the margin between the gross and the, we'll call it the transfer price, was $62,000.

PN713

If I can take you to the estimations of costs which are contained in submissions for Coburg if it went out on all shifts is an estimation of $120,000?---Yes.

PN714

Is that a similar estimation done for all of the shifts?---Yes.

PN715

In relation to Shepparton there is a sum of $255,000, is that assuming all shifts went out or is that assuming just a two to three hour?---Your Honour, I would - the figure of two hundred and fifty five, I am not aware of how that one was calculated. I have had the benefit of talking to Steven Lanman who is the operations manager. He said, per hour, if the site went out, it would be closer to $3000. Now, if I could - so your Honour I am not trying to confuse you. As rough figures, I understand the figure when I spoke to Steven Lanman to be $3000. I can't - I have not seen the figure of two fifty five before and - - -

PN716

That is okay, that is why I am asking you. In relation to Visy 2, the information about past loss for the Coburg site, do you accept that to be correct?---Yes, yes.

**** ROBERT IAN JOYCE XN MR DOUGLAS
PN717

And you understand how that is calculated?---Yes.

PN718

And you understand those dates that are down there are correct?---Yes.

PN719

I have no further questions. Your Honour, I should say at this stage I was told only 10 minutes ago that Visy Paper in Smithfield have done a deal for delegation so I withdraw the application in respect of them.

PN720

THE DEPUTY PRESIDENT: Thank you.

<CROSS-EXAMINATION BY MR ADDISON [6.28PM]

PN721

MR ADDISON: Mr Joyce, just in terms of that loss for Shepparton. Is your evidence that you were told that it would be $3000 an hour loss if the plant went out?---Yes. Per hour, per hour, yes.

PN722

So for four hours it would be $12,000?---Yes.

PN723

And there are in excess of 100 employees at Shepparton?---Your Honour, that is not the figure that I have. The figure that I have is 80 employees at Shepparton.

PN724

I am not going to quibble with you over that. And those employees clearly wouldn't be paid if they were out?---No, they wouldn't have been paid.

PN725

Your Honour, I just want to say Mr Joyce's evidence is in absolute direct contradiction to the instructions I have from Mr King with regard to the evidence he has given. I don't have Mr King here because Mr King operates in the Bendigo area. I would seek the opportunity to call Mr King as a rebuttal witness to the evidence that has been given by Mr Joyce. Obviously I can't do that this evening. I would be happy to do it tomorrow. I would be happy to do it Sunday or I would be happy to do it Monday depending on when I can get Mr King here, but the evidence that has been given this afternoon surprised me immensely.

PN726

It is absolutely in stark contrast to my instructions. My instructions are that no decision has been made at Shepparton. My instructions are that there has been no indication given to Visy by Mr King of any stoppage, so Your Honour I am in your hands with regard to that, but I guess I make an application for an adjournment.

PN727

THE DEPUTY PRESIDENT: Well, at this point in time you are cross-examining the witness.

**** ROBERT IAN JOYCE XXN MR ADDISON
PN728

MR ADDISON: And I am also foreshadowing, your Honour, rebuttal.

PN729

THE DEPUTY PRESIDENT: Yes, it is foreshadowed.

PN730

MR ADDISON: Now, Mr Joyce, with regard to the evidence you have given with regard to Coburg, I put it to you that the suggestion of a leisure day was the suggestion of Mr Fox. It didn't come off the floor, it came from Mr Fox, that is true, isn't it?---No.

PN731

Now, if I can take you to the other documents in the bundle, if I can take you to the handwritten letter from Mr Zwort dated 9 November 2005. That was agreed to by Mr Street, wasn't it?---No.

PN732

The next letter addressed to John Zwort from Mr Street says very clearly:

PN733

The company agrees to your request a paid site meeting.

PN734

That memo is in response to the handwritten letter from Mr Zwort on the 9th, isn't it?---No. If I could, it says:

PN735

Request for a meeting -

PN736

second paragraph:

PN737

- provided it is in line with previously agreed arrangements.

PN738

Yes, and there is nothing about times there that contradicts what was put by Mr Zwort, is there?---I disagree.

PN739

Well, Mr Zwort is sitting next to me, and Mr Zwort's instructions to me are very clear. He wrote this to Mr Street, asked Mr Street to organise meetings for this time, Mr Street sent him a memo back saying, "Yes, it is agreed". Now, it is clear that it is agreed, there are some dot points which deal with the site arrangements, for example, meetings will be held between Monday and Thursday, well, that hardly contradicts anything that is in the letter, et cetera. These are the normal site arrangements for paid meetings, aren't they?---These are, if I can draw your attention to dot point three:

PN740

In order to minimise disruption to production, lunch breaks for day and afternoon shifts may need to be altered on meeting days.

**** ROBERT IAN JOYCE XXN MR ADDISON
PN741

Yes?---That the - if you go to the third bullet point from the bottom:

PN742

For all day and afternoon shift including 12 hour shifts, meetings will be held prior to lunch with a commencement being the agreed period prior to lunch.

PN743

Where are the words that say your suggested times in your handwritten memo of 9 November are not acceptable? They are not there, are they?---I disagree. Paragraph - - -

PN744

Show me the words?---At paragraph - - -

PN745

MR DOUGLAS: Excuse me, allow the witness - - -

PN746

?---

PN747

The company agrees to your request for a paid site meeting on Thursday, 10 November provided it is in line with previously agreed arrangements.

PN748

MR ADDISON: Well, Mr Joyce, I think you invent things as you go along. It is clear that Mr Zwort put the times to Mr Street, it is clear there was no disagreement with the times?---Okay, well, that is incorrect. Your Honour, I have the benefit of the copy of the original letter from Mr Wenkie - - -

PN749

THE DEPUTY PRESIDENT: Yes, Mr Joyce, perhaps if you could just wait for the question to be asked and then you will have an opportunity to answer it. If there is further information that needs to be provided then I am sure that Mr Douglas will adduce that during his re-examination.

PN750

MR ADDISON: Can I put it to you that there was one amendment requested by Mr Street and that was that Mr Zwort, if he was able, should move the night shift meeting from 6.30 to seven, are you aware of that?

PN751

THE DEPUTY PRESIDENT: Sorry, could I just intercede for a minute?

PN752

MR ADDISON: Certainly.

PN753

THE DEPUTY PRESIDENT: None of this material at this stage is in evidence. To what extent do you wish to rely upon it, Mr Douglas?

**** ROBERT IAN JOYCE XXN MR ADDISON
PN754

MR DOUGLAS: Yes, it should have been tendered.

PN755

MR ADDISON: I thought it was, my apologies.

PN756

MR DOUGLAS: May it please your Honour if I could seek to have it tendered, and I apologise to the other side.

EXHIBIT #VISY3 BUNDLE OF DOCUMENTS

PN757

MR ADDISON: As I said, Mr Joyce, there was request of Mr Zwort that he change the 6.30 meeting to seven, are you aware of that?---Of that point, no.

PN758

Have you spoken to Mr Street with regard to this correspondence?---Yes.

PN759

In terms of the proposal of a additional leisure day to be taken on Tuesday the 15th, you reject the proposition that it came from Mr Fox, do you?---Yes.

PN760

Mr Zwort will say something different to that. Meetings were held at your request by Mr Zwort, that is correct, isn't it, at the company's request?---About this.

PN761

Yes?---Formal meetings, yes.

PN762

And did the memo with regard to this matter is signed by Mr Street with the two options in it?---Yes.

PN763

I put it to you, Mr Zwort did not tell you that both options were rejected, that's true, isn't it?---He didn't tell Robert Joyce, no.

PN764

He didn't tell anybody at Visy, did he? Mr Zwort has told you that there is no decision on these matters; in fact, Mr Zwort has told you that there is - my apologies, my apologies

PN765

Can I just take two minutes, your Honour?

PN766

THE DEPUTY PRESIDENT: Yes.

PN767

MR ADDISON: I just need to confer with Mr Zwort for a second because my instructions are a bit mixed up. Thanks for that, your Honour, my apologies.

PN768

THE DEPUTY PRESIDENT: Just before you resume, Mr Addison, how long are you likely to be with this witness?

**** ROBERT IAN JOYCE XXN MR ADDISON
PN769

MR ADDISON: I will be as short as I possibly can, your Honour.

PN770

THE DEPUTY PRESIDENT: Yes, well, what does that mean, because there are some issues apparently with the car park.

PN771

MR ADDISON: Ten minutes maybe.

PN772

THE DEPUTY PRESIDENT: Yes, well, that may make the issue even greater. I think it might be advisable at this stage if we take a break, adjourn for a period of time to enable people to work out what their circumstances are with their cars. One of my associates can arrange for re-admittance back into the building down below, so I will adjourn until 7 pm.

<SHORT ADJOURNMENT [6.39PM]
<RESUMED [7.04PM]

PN773

THE DEPUTY PRESIDENT: Go ahead, Mr Addison.

PN774

MR ADDISON: Yes, thanks, your Honour.

PN775

Mr Joyce, I put it to you that you have not been told that either or your propositions have been rejected, that is correct, isn't it?---No.

PN776

Who told you that the proposition had been rejected?---Michael Fox advised me yesterday afternoon that as a - yesterday, that as a result of the meetings the employees had told him the majority of employees had voted against option 1 and option 2.

PN777

Michael Fox told you that?---Yes.

PN778

Was Michael Fox at the meeting, was he?---No.

PN779

So Michael Fox has this second hand from somebody else, does he? Or you have it second hand from Mr Fox?---Yes.

PN780

Your Honour, I have nothing further from this witness, however, as indicated earlier I do seek recall of rebuttal.

**** ROBERT IAN JOYCE XXN MR ADDISON
PN781

THE DEPUTY PRESIDENT: Yes, before you do anything, Mr Addison, if you have got not further of this witness, we will let Mr Douglas re-examine.

PN782

MR ADDISON: If your Honour pleases.

<RE-EXAMINATION BY MR DOUGLAS [7.06PM]

PN783

MR DOUGLAS: Mr Joyce, there was some questions raised by Mr Addison as to what were the appropriate meeting times referred to in this letter. Have you any document or any information as what is the agreed meeting times?---Yes. your Honour, in my bag there is a plastic folder.

PN784

Could I ask the witness to be allowed to go and collect the document?

PN785

MR ADDISON: Your Honour, with respect.

PN786

THE DEPUTY PRESIDENT: Just before you say, the witness has had an opportunity, Mr Douglas, to produce documentation. This is re-examination; this is not the time for new evidence to be lead.

PN787

MR DOUGLAS: No, your Honour. It was said that there wasn't a time, it was said there was a time, I am clarifying it, but I am happy not to do it, your Honour.

PN788

THE DEPUTY PRESIDENT: If Mr Joyce has other evidence then the opportunity was available for that evidence to be made available to the Commission during examination-in-chief.

**** ROBERT IAN JOYCE RXN MR DOUGLAS
PN789

MR DOUGLAS: I am sorry, your Honour, I didn't know it would become an issue, but I am not going to squabble with it, it is not a major issue.

PN790

THE DEPUTY PRESIDENT: Well, that is my view, Mr Addison may not object, and if he doesn't object.

PN791

MR ADDISON: I would object, your Honour.

PN792

THE DEPUTY PRESIDENT: On that basis, I am not going to allow it.

PN793

MR DOUGLAS: Yes.

PN794

Mr Joyce, in respect of the two propositions raised in the correspondence by Mr Street, did you have any understanding whether those propositions would be put to the mass meeting?---Yes.

PN795

What was your understanding?---That a number of employees had approached a number of managers and supervisors floating the ideas of employees being able to attend the rally and without disrupting production.

**** ROBERT IAN JOYCE RXN MR DOUGLAS
PN796

If I can just direct you a little bit more accurately, in respect of these propositions, was it your understanding that the union were going to put these propositions to that meeting?---Yes.

PN797

How did you form that understanding?---Because we had provided the options to the employees and that that would be discussed. Mr Street had also discussed them with Mr Zwort.

PN798

I have no further questions, your Honour.

PN799

THE DEPUTY PRESIDENT: Yes, thank you. You can step down now Mr Joyce. Thank you for your evidence.

<THE WITNESS WITHDREW [7.08PM]

PN800

THE DEPUTY PRESIDENT: Yes, Mr Addison, you had something you wanted to put to me.

PN801

MR ADDISON: Your Honour, I intend to call two witnesses. One of them I don't have present and that is Mr King on the basis of evidence that has been run by Mr Joyce this afternoon. I also intend to call Mr Zwort.

PN802

THE DEPUTY PRESIDENT: Well, you would like to call Mr King. I have yet to hear argument as to why I should allow that to happen, Mr Addison. I mean, the opportunity has been available to the AMWU since hearing about this application to determine who is an appropriate person to have present. You would have been aware of the basis for the application for the order and also, in my view, you would have been aware of which organisers had been involved with the company during this process. So I would have to be persuaded that that should occur.

PN803

MR ADDISON: Indeed. Your Honour, the application came into the AMWU yesterday was a straightforward application under section 127(2). In terms of the grounds that were relied upon, there was no suggestion that there had been deliberate propositions put to managers of Visy with regard to stoppages, none whatsoever. There is no indication in the grounds of the evidence or the type of evidence that would be lead. Your Honour is aware that the outline of submission which goes to that point was not made available to the AMWU until about 3.30 this afternoon.

PN804

THE DEPUTY PRESIDENT: Yes.

PN805

MR ADDISON: Further to that, no witness statements were made available. Mr Joyce's evidence comes as a complete surprise me and it contrary to my instructions and I did speak to the organisers this morning and I had clear instructions with regard to that. The allegations put by Mr Joyce are very contrary to my instructions. If they were marginally in conflict, well, maybe I could live with that under cross-examination, but it needs to be responded to, your Honour.

PN806

There is a definite position where Mr Joyce says he has been told by Mr King that there will be a stoppage. Now, that takes this to a whole different level, your Honour. That evidence if it is accepted on its face sees the AMWU faced with a position where industrial action is threatened. Not probably anymore, but threatened. The whole basis my friend puts his case as I understood it on application is probability and now we are in a different territory.

PN807

It seems to me, your Honour, that given the fact that the evidence came as a surprise we would be entitled to call rebuttal evidence with regard to that.

PN808

THE DEPUTY PRESIDENT: What do you say about that, Mr Douglas?

PN809

MR DOUGLAS: Your Honour, what I say is that the letter of urgency which my friend received said quite clearly:

PN810

The offer has been rejected by the AMWU and employees will not report to work instead they will attend the rally.

PN811

It is clearly put in the very letter they received at 9 o'clock tomorrow morning. Shepparton is mentioned, it is obvious that Shepparton is in issue. I have got my assist here from Ballarat. Mr King is in Bendigo. This isn't a bit trip to make when he understands Shepparton is at stake, your Honour, and I just don't think it is appropriate. There has been plenty of warning; there has been over 24 hours notice.

PN812

In respect to the documentation it is customary a section 127 is to provide no witness statements, no submissions. What we have done is to work basically all night to give some fairness given the breadth of matters to try and assist the union and we have bent over backwards to provide that assistance. Now we are being criticised for providing very documents I customarily wouldn't provide in a 127 application. Your Honour, I don't think there was any unfairness. There was ample opportunity and there was ample opportunity to have Mr King here. May it please.

PN813

THE DEPUTY PRESIDENT: What would be the impact of an adjournment until Monday morning, Mr Douglas?

PN814

MR DOUGLAS: Your Honour, we would then be in a position where we may not be able to - were we to get an order, to be able to serve all the people who would be attending on Tuesday, and this has been a problem in the past, your Honour. The reason we are here at the last minute is to try and get an order so that we can ensure that it is served, and we go out of our way to achieve that. What we don't want to be is only able to serve half the people. If the matter was, say, to drift into the afternoon, we would be in a position where we couldn't do that.

PN815

Your Honour, we held it up later tonight, we could have asked for an earlier time, for the benefit of the AMWU so they could get proper instructions. We did that, I was offered the opportunity to have it earlier and we chose to have it later so that video facilities would be available so any of the problems that Mr Addison now complains of would be solved, but it would be very damaging for us if it were to drift on to Monday and we raised that in the correspondence that the AMWU received and they are aware of that. We raised in the letter of urgency which is attached and given to them how difficult it would be on Monday, your Honour.

PN816

THE DEPUTY PRESIDENT: Thank you. I don't intend to allow you to call Mr King, Mr Addison. I will, however, taken into account the instructions that you told me that you have received in respect of that site when I consider the evidence that Mr Joyce has given and I will further take into account the fact that you have sought the opportunity to formally rebut that evidence and that I have denied you that opportunity in the circumstances so that will be taken into account in any determination I make. However, you say you have somebody here that you wish to call.

PN817

MR ADDISON: Yes, I seek to call Mr Zwort.

<JONATHAN PHILLIP ZWORT, AFFIRMED [7.15PM]
<EXAMINATION-IN-CHIEF BY MR ADDISON

PN818

MR ADDISON: Jonathan, if I can just get you to repeat your full name and address for the purposes of the transcript, please?---Jonathan Phillip Zwort, (address supplied).

PN819

Are you employed by Visy?---Yes.

PN820

At which plant?---At the Coburg plant.

PN821

That is VisyPak?---VisyPak.

PN822

Do you hold any positions with the AMWU?---I am the delegate at VisyPak, considered to be the senior delegate there, the day shift delegate.

PN823

How long have you been employed by Visy?---A little over 17 years.

PN824

How long have you been the delegate?---Probably the majority of that time.

PN825

I just wanted to take you to the events of the last few days. There has been some evidence tendered in this matter and it is marked Visy 3 and I wonder if the witness could be shown a copy of Visy 3. I want to take you to a handwritten note which is said to be authored by you which is six pages in from the back, have you got it?---Dated 9th of the eleventh.

PN826

Yes. Did you write that?---Yes, I wrote that letter.

PN827

Did you send that then to Mr Street as it is addressed to him?---Yes.

PN828

Is the next document which is the memo from Mr Street dated 10 November, did you take that to be a response to that handwritten note?---Yes. There was also a verbal response to that.

PN829

Could you tell the Commission in your own words how the document came about, what the responses were to it?---The - sorry, which document, both of them.

PN830

How your handwritten document came about and the responses to it?---The - we had - there had been some discussions around proposals for various things around the 15th where there was some discussions around delegation proposals and discussions around the idea of taking leisure days or RDOs being rescheduled to that day.

**** JONATHAN PHILLIP ZWORT XN MR ADDISON
PN831

In terms of those proposals, the proposal for leisure days, for example, do you know where that came from?---My understanding I was told by a number of employees that work in the material preparation department that it had been suggested to them by the production manager, Michael Fox. I would also say that I had a number of informal approaches to me from members of the management team suggesting that I should suggest that.

PN832

Should suggest what, sorry?---That I should suggest the leisure day/RDO option.

PN833

Who were those members of management that approached you?---One was the - I think his title is the environment - health, safety and environment manager, Jason Hensel and another one was a quality assurance manager, Mr George Bernard.

PN834

So they both suggested the leisure day option to you, did they?---They suggested that I should suggest the leisure day option.

PN835

The meetings that are described in your handwritten note of the 9th, did they go ahead?---Yes, they did with the exception of the meeting for Friday. I was approached by the management in Michael Fox and he asked if I could possibly change the time from 6.30 to 7 am in order to minimise the disruption to the ovens intemperate which I agreed to. I still - there was still a meeting conducted at 6.30 but that was with the 12 hour night shift because they finish at 7 o'clock and that is why the 6.30 time was suggested. So that meeting time went ahead but the majority of the night shift was - the meeting time was changed to seven.

PN836

So you had two meetings this morning, did you?---Yes.

PN837

One at 6.30 and one at seven?---Yes, that is correct.

PN838

If I can just take you one page towards the front from your handwritten note, you will see a memo there from Mr Street?---Yes.

PN839

With regard to the two options?---Yes.

PN840

Were they the matters that were dealt with at the meetings of yesterday and today?---Yes, they were.

PN841

What was the result of the meetings?---The result of the meetings was inconclusive. Each of the meetings resulted in a different outcome.

**** JONATHAN PHILLIP ZWORT XN MR ADDISON
PN842

Have you communicated the outcome of those meetings to anybody?---No.

PN843

Is there any reason for that?---Well, we had to come to the - once we finished the meetings this morning, we come down to the office, and we subsequently come to the Commission.

PN844

Is there a proposal to resolve the impasse?---With - we will most probably have another round of meetings on Monday to try and resolve this matter.

PN845

If that resolves in favour of one or other or neither of the options, will you communicate that to management on Monday?---Yes.

PN846

I have no further questions, your Honour.

PN847

THE DEPUTY PRESIDENT: Thank you.

<CROSS-EXAMINATION BY MR DOUGLAS [7.22PM]

PN848

MR DOUGLAS: May it please your Honour.

PN849

Mr Zwort, you are rostered to work on Tuesday?---Yes, I am, yes.

PN850

Tuesday, during the day?---Yes.

PN851

Are you coming to work?---Am I coming to work?

PN852

Yes?---Yes, I will be coming to work.

PN853

So you are not going to go to the rally?---I will be - when the majority of the employees have decided what they intend to do we will be doing that, and I will be part of that.

PN854

So you will follow what the majority of the employees want?---Yes.

PN855

Have you put the two propositions at the meeting?---Yes.

PN856

And what occurred at each meeting?---What occurred at each meeting? The first meeting was held yesterday at 11.30 and that was with the day shift. That was with - I'll say it's a mix of both people that work eight hour shifts and 12 hour shifts. It probably - it is probably almost half and half as to the 12 hours and the eight hour shifts.

**** JONATHAN PHILLIP ZWORT XXN MR DOUGLAS
PN857

THE DEPUTY PRESIDENT: Well, don't tell us the details of who was there. Just try and answer the question, Mr Zwort?---And that meeting rejected both the option 1 and option 2.

PN858

MR DOUGLAS: That has the majority of employees, the day shift, doesn't it?
---No, I wouldn't say it has the majority. I would say probably close to half. There would be 45 to 50 at that meeting.

PN859

Yes?---They rejected it. Then the afternoon shift which is I would say it was roughly 20 employees. They rejected option 1 but they voted to accept option 2. The next meeting which was the 6.30 am night shift meeting this morning which was 12 hour shifts. They felt that they couldn't consider option 2 as the majority of it didn't really apply to them. They accepted option 1 and then the 7 am meeting which was the night shift and that was predominantly eight hour shift people, they went the same way as the afternoon shift and they accepted option 2.

PN860

So what were the tally of votes in favour of option 2?---Well, in favour of option 2 it was equal.

PN861

No, what was the tally of votes?---The actual tally of votes?

PN862

Yes?---I don't have an actual tally of votes.

PN863

You didn't take a tally of votes, did you?---No, I didn't take a tally of votes.

PN864

So you have no way of knowing whether there has been a majority decision made or not, do you?---It was, it was, it was very close to full.

PN865

But you didn't take a tally, did you?---No, I didn't take a tally.

PN866

So you have no way of knowing whether it was accepted or rejected?---No, I wouldn't say that entirely. There was - as I say I took a rough head count of how many were at the day shift meeting and it was around 50. Of those 50, the majority voted in favour of rejecting these options as it was put forward. There was a bout half a dozen people who voted against that proposal so they voted to accept one of these options and then there was a handful of people who abstained from voting and didn't vote. On the afternoon shift there was - everybody voted. There was, I believe, 18 or 19 employees at that meeting. At the 6.30 am night shift meeting - - -

**** JONATHAN PHILLIP ZWORT XXN MR DOUGLAS
PN867

THE DEPUTY PRESIDENT: Mr Zwort, is this leading to an answer to Mr Douglas's question?---I think I am answering his question.

PN868

Well, I am not sure you are. What he is asking you is whether or not you can provide an aggregate total of votes?---That was what I was doing.

PN869

MR DOUGLAS: That's right. So we know exactly what occurred so we know what the true answer is.

PN870

THE DEPUTY PRESIDENT: And the answer to that seems very simple, you either can or you can't?---Yes, well, I am providing - - -

PN871

Can you or not?---That is what I am doing.

PN872

Well, in a very long, round about way, I mean, I am here as the rest of us are until 7.30 on Friday night, I would prefer not to be. I don't want to really be here until 7.30 tomorrow night just while you answer this one question. So you might see if you can just answer it with a yes or no. Can you provide the aggregate total for and against or can't you?---Yes, I can.

PN873

Well, if you can then what is it?---The numbers, the exact numbers?

PN874

Yes?---I can't provide exact numbers.

PN875

MR DOUGLAS: You have spoken about leisure days and you have said that a number of people came to you and suggested you should suggest it?---Yes.

PN876

Did you suggest it to anyone?---No.

PN877

I want to suggest to you, you did suggest it and you suggested it to Michael Fox as being a good idea?---I would say that is wrong, I never suggested it.

PN878

You agreed with me last time prior to 30 June there was a series of meetings and a series of negotiations leading up to the national day of action, that's right?---Yes, that is correct.

PN879

And offers were made right up until the last minute?---Yes, that is correct.

PN880

And all shifts went out, didn't they?---Yes, that is correct.

**** JONATHAN PHILLIP ZWORT XXN MR DOUGLAS
PN881

Even though the afternoon and night shifts could have attended the rally they went out, didn't they?---Yes, I believe on that occasion they did.

PN882

And are you suggesting that if a vote is taken on Tuesday only the day shift will go out?---As I said it would depend on what the majority have voted.

PN883

Have you put that proposition?---Have I put that proposition, no, I haven't put that proposition.

PN884

This is a very serious matter. There are a number of people who would be able to go to the rally because of their shift but you haven't asked them whether they are going to stay behind and work because they could go to the rally anyway, you haven't asked that?---Sorry, I don't understand the question.

PN885

There are people working afternoon and night shift who would be quite capable of going to the rally and still attending work, did you ask them would you stay behind and only let the day shift go. Did you ask them that?---No, I haven't asked them that specifically, no.

PN886

What possible reason could there be for the afternoon and night shift taking the same time off as the day shift?---From?

PN887

From work?---From the last - - -

PN888

No, I am asking now. What possible reason could you have for the afternoon and night shift taking time off when they could already attend the rally?---There is no reason, but I will say that on 30 June the afternoon and night shifts took there own decision to stop work at an equal time to what the day shift were in order to attend the rally in terms of go and have a bit of a nap and go to - - -

PN889

That's right, and that decision was made, wasn't it, there was votes taken on that, wasn't there for the 30 June rally?---Yes.

PN890

And they were never communicated to management, were they?---I believe they were. I am not sure about the afternoon and night shift.

PN891

Mr Addison has gone at length to say, and you have been here while it has happened, no union official has communicated that there is any industrial action occurring and that applied both the national day and also for this rally, didn't it?
---Sorry?

**** JONATHAN PHILLIP ZWORT XXN MR DOUGLAS
PN892

Mr Addison has suggested that no union official, delegate, officer has communicated to anybody in Visy that there would be a stoppage of work?---In regard to?

PN893

National day of action or - - -?---The national day of action on 15 November?

PN894

No, on 30 June?---On 30 June?

PN895

Yes. Did you communicate or did any other official communicate that nobody would be attending, none of the three shifts would attend?---I don't think that was communicated, no.

PN896

No, because that is part of what the AMWU are doing, isn't it? They deliberately don't communicate votes that are taken to catch the company by surprise?---No, that is not true.

PN897

Why didn't you communicate it on 30 June?---We communicated on 30 June verbally that we - that the day shift had voted to attend the rally.

PN898

On 30 June it was communicated?---No, we, sorry, I will restate that. It was communicated to the company that we would be stopping - the day shift would be stopping and attending the rally on 30 June.

PN899

Who communicated that?---I communicated that.

PN900

Did you communicate that the afternoon and night shift would not be attending?
---No, I did not.

PN901

But you knew that, didn't you?---No, not exactly I didn't know that.

PN902

You are making this up as you go along, aren't you, Mr Zwort?---No.

PN903

There was a vote taken, wasn't there, by all the shifts and the shifts independently agreed they would take it off, that was your efforts, wasn't it?---Yes.

PN904

Why didn't you communicate it?---I wasn't in attendance at the meetings of the afternoon and night shift.

PN905

You are a senior shop steward, that is your evidence?---Yes.

**** JONATHAN PHILLIP ZWORT XXN MR DOUGLAS
PN906

You were the senior shop steward at the time, weren't you?---Yes.

PN907

It is your duty to pass on resolutions back to the company when they occur, isn't it?---Yes.

PN908

And you didn't do it, did you?---When?

PN909

On 30 June you did not communicate that the afternoon and night shifts would be taking it off, did you?---I wasn't aware of the decision that the afternoon and night shift had taken.

PN910

Mr Zwort, is it not true that the entirety of your evidence is fabricated today?
---No, it's - it is untrue. It is actually - at the time you are talking about I was on annual leave.

PN911

THE DEPUTY PRESIDENT: Well, how did you communicate it about the day shift if you were on annual leave?---Because I - at the time there was a - there were redundancies occurring at the plant, there was 16 redundancies - - -

PN912

Perhaps you might just stop for a moment, and just take stock. We wouldn't like to see you dig yourself a hole.

PN913

MR DOUGLAS: Your Honour, I have no further questions of this witness.

PN914

THE DEPUTY PRESIDENT: Thank you. Any re-examination?

PN915

MR ADDISON: Yes.

<RE-EXAMINATION BY MR ADDISON [7.33PM]

PN916

MR ADDISON: When did you tell the company that the day shift was going to go out on 30 June?---It would have been on 29 June, I believe, which was a Monday.

PN917

How did you tell them that?---Verbally.

PN918

Who did you tell?---I told Robin Street.

PN919

You told him on the telephone or face to face?---Face to face.

**** JONATHAN PHILLIP ZWORT RXN MR ADDISON
PN920

At the plant?---Yes.

PN921

You said you were on annual leave. When were you on annual leave from?---I was on annual leave for two weeks, I am sorry, I am trying to recollect this. Up until to the week prior to 30 June, 30 June was a Tuesday, so I was on annual leave for those two weeks prior to that.

PN922

Up to the Friday or the Monday?---Up to the Friday.

PN923

So you returned to work on the Monday, did you?---Yes.

PN924

Which would have been 29 June, obviously?---Yes.

PN925

When did you have a meeting which determined that the day shift was going to attend the rally?---On the Monday.

PN926

Following that meeting did you tell Mr Street that the day shift was going to attend the rally?---Yes.

PN927

Did you attend a meeting with the afternoon shift?---On the Monday?

PN928

Yes?---I don't believe I did, no.

PN929

Did you attend a mass meeting with the night shift?---No.

PN930

Is it the case that on rallies all of the plant always goes out?---No, that is not the case.

PN931

Are there other rallies where the plant has not gone out?---Yes.

PN932

Such as?---There was a rally in August last year, the James Hardie rally, and a delegation was agreed to and went to that.

PN933

So is it true to say that there has been both delegations and mass stoppages depending on the circumstances and depending on the rallies?---Yes.

PN934

Has a decision been taken at this point in time today by AMWU members on the Coburg site that the plant will stop on Tuesday the 15th?---No.

**** JONATHAN PHILLIP ZWORT RXN MR ADDISON
PN935

No further questions, your Honour.

PN936

THE DEPUTY PRESIDENT: Thank you. You can step down now, Mr Zwort, thank you for your evidence.

<THE WITNESS WITHDREW [7.36PM]

PN937

THE DEPUTY PRESIDENT: Mr Douglas?

PN938

MR DOUGLAS: May it please your Honour. I do rely on my written submissions so I won't take long. But what has really occurred is the union have taken a position where they deliberately don't advise the company of what is going on. Mr Zwort's evidence was eloquent as to that and really explains the process that is occurring across the banks. Fundamentally, the business has done the right thing to try and prepare delegations. It has offered to pay them, it has offered to pay report backs; it has done everything to facilitate the continuation of the business. When one looks at the evidence as a whole it is very clear the employees hold the perception that they are not coming to work and that they have been encouraged.

PN939

There have been mass meetings held not just on our behest but also by the union where they are encouraged. There are posters, there are stickers put out, there are circulars put out. It is clearly pushing and encouraging. There is no doubt at all we are going to lose people this time just like last time, and the best description of what will happen this time, is what occurred on the last occasion and in most of those plants what happened is not just one shift but all shifts. Why would an afternoon or night shift go out at the same time has to be industrial action. There can be no good reason for why that occurs and that taints the whole procedure because it shows it is genuinely industrial action and that should move the discretion not just the jurisdiction. Your Honour, that is all I have to say and I do rely on the evidence that has occurred and my detailed notes.

PN940

THE DEPUTY PRESIDENT: Mr Addison?

PN941

MR ADDISON: Your Honour, I didn't prepare an outline of submissions so I can't rely on my written submissions. Your Honour, what I say is this. The evidence that has been provided to the Commission cannot possibly satisfy the Commission as to the jurisdictional prerequisite for the issue of an order.

PN942

At its highest, the evidence is that a conversation has occurred between a deputy shop steward and a manager at Warrick Farm in New South Wales that suggests there maybe some industrial action that will happen on Tuesday. There is no evidence apart from that that there have been any decisions taken or there is any probability of industrial action occurring in the other plants, indeed, Mr Zwort has sat in that witness box and said very clearly as of today, right now, there is no decision that AMWU members at Coburg will take industrial action.

PN943

Indeed, my instructions from Mr King, and you have said yourself your Honour you will taken this into consideration in your reasoning, my instructions from Mr King is exactly that, there has been no decision to take industrial action at the Shepparton site. Your Honour, as I say at its very highest there is some guess work that can be applied to some conversations which we have had some evidence about from the plant manager at Warrick Farm. That is about it. Now, your Honour, the onus for these applications is upon the applicant. It is for the applicant to satisfy the Commission to the requisite level that industrial action is happening, threatened, impending or probable. We say the applicant fails to meet the standard required to enliven the jurisdiction with the grant of a section 127 order against the employees and against the unions for that matter.

PN944

Your Honour, if you are against us on that, we say that as a matter of discretion the Commission should not grant an order in any event. Given the length of time and given the fact that I am absolutely sure your Honour is very familiar with the authorities, I have made copies and I was going to make submissions with regard to the various authorities, but maybe it is best that I just hand them up, or just even quote them, your Honour.

PN945

THE DEPUTY PRESIDENT: I think could probably leave it at that.

PN946

MR ADDISON: This is not the first time that the action has occurred. The evidence is clear there was a day on 30 June of this year, there were numerous applications for section 127, applications that came before the Commission. There were arguments ran as to why it was inappropriate, that orders should be issued. Orders were refused for General Motors Holden by Commissioner Hingley and that is print PR959483. Silcar of course was refused an order by Senior Deputy President Lacy, but for special grounds which are not applicable to this matter. Ivecco Trucks similarly had a 127 application refused by Commissioner Hingley on the basis of the various authorities that have been determined by the Commission in the past with regard to these matters.

PN947

There is authority that the Commission shouldn't likely interfere with action which can be jointly political and industrial and obviously we rely on the observations of his Honour, Munro J in the BHP case, and the BHP case is Print S2496 where his Honour viewed the action that was occurring as jointly political and industrial. At the end of the day his Honour did issue a 127, but he was pretty reluctant to do that o the basis of the joint application purposes for the action.

PN948

There is, of course, the decision of his Honour, Williams SDP, in Gordon & Gotch where his Honour said, I think it was paragraph 20 of that decision, if you just bear with me. It can't be paragraph 20 because it only goes to 18, but his Honour basically found that the changes that were being protested against were against the interests of work as the Commission declined to exercise its jurisdiction and issue a section 127 to prevent that action and, of course, there was the decision of French J in the Federal Court with regard to Laing and the CEPU. I am sure you are familiar with all of those, your Honour.

PN949

It is the AMWUs submission that no section 127 order should issue, the jurisdictional prerequisites are not there and if you are against us on that as a matter of discretion the Commission should not issue such an order, if the Commission pleases.

PN950

THE DEPUTY PRESIDENT: Thank you. Mr Douglas?

PN951

MR DOUGLAS: No, your Honour, nothing further.

PN952

THE DEPUTY PRESIDENT: Mr Douglas, I have one question for you. You have asked for an order of seven days duration as I recall from the .....

PN953

MR DOUGLAS: Yes.

PN954

THE DEPUTY PRESIDENT: Why do you want an order of seven days duration?

PN955

MR DOUGLAS: Your Honour, I would be consent if it went to the morning of 16 November. I am concerned that if I don't have an order that goes before that we are going to have stop-work meetings leadings up to it which will have the same effect so were the order to be limited to 7 am, 16 November 2005, I would be content, your Honour. The truth is that I drew it from the order of the Australian Post and I was in a hurry, your Honour, and there is really no good excuse past that I am afraid.

PN956

THE DEPUTY PRESIDENT: Thank you. Is there anything you want to say on that point, Mr Addison?

PN957

MR ADDISON: Your Honour, I don't think much turns on it, whether it is seven days or whether it is 72 hours. I think 72 hours would take us to the 16th. I don't think a lot turns on it, your Honour, to be quite honest.

PN958

THE DEPUTY PRESIDENT: Thank you. That's all right, I just wanted to give you the opportunity, it was something that I probably should have raised earlier with Mr Douglas and didn't and it occurred to me and I thought you should be given the opportunity to respond. Look, I am going to adjourn for a brief period of time. I will make it as brief as I possibly can and I will return and provide you with a determination. I recognise the lateness of the hour and the fact that it is the beginning of the weekend, so I will try not to hold people up.

<SHORT ADJOURNMENT [7.45PM]
<RESUMED [8.21PM]

PN959

THE DEPUTY PRESIDENT: Thank you for your patience. Given the circumstances I will provide expanded reasons for this decision in due course. I am satisfied in the circumstances of this matter that the jurisdictional prerequisites for the issue of an order pursuant to section 127 of the Act are met. There is no contest between the parties about the nature of the action foreshadowed for
15 November should it occur. I accept that such action by employees in stopping work to attend the rally constitutes industrial action within the meaning of the Act.

PN960

Neither is there a contest over whether the work is regulated by an award or certified agreement. I accept that it is. The issue to be determined is whether industrial action is happening, threatened, impending or probably. It appears to me that the industrial action in respect of employees about whom an order is sought is, in the circumstances, probable. I have come to that view having had regard for all of the evidence but particularly a lack of response or in some cases rejection by the union of company offers to fund paid delegations to the
15 November rally.

PN961

The history of industrial action at particular sites in relation to similar rallies and/or days of action have also influenced my determination. Having considered all of the circumstances and the relevant authorities, I have decided to issue the order. The company's evidence of financial loss should the action take place is far from cogent. However, it is beyond doubt that this loss will be substantial.

PN962

Despite having appropriate regard for individual's rights in respect of freedom of action and expression, I find that the industrial action is illegitimate in the sense discussed by the Full Bench in Coal & Allied and on that basis warrants the issue of an order. The order will issue in substantially the form sought in the draft provided to the Commission save and accept that (1) amendment will be made to the list of sites to which the order applies consequent upon the expressed withdrawal of the application in respect of particular sites. My current understanding is that there are two sites that were listed in the draft about which the company has expressed a view that that should be withdrawn.

PN963

MR DOUGLAS: That is correct, yes, Visy Paper at Smithfield and Recycling at Smithfield. May it please.

PN964

THE DEPUTY PRESIDENT: Yes. That the order will take effect from midnight tonight, 11 November and will expire at 7 am on 16 November. Changes to distribution and notification arrangements will be made consequent to the change period of operation of the order. Finally, if any site comes to a decision to accept the company's offer of a paid delegation in lieu of industrial action for
15 November, the Commission on application will remove that site from the coverage of the order. There is nothing further, the matter is adjourned.

<ADJOURNED INDEFINITELY [8.26PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

LEIGH GRANGE STEWART, AFFIRMED PN30
EXAMINATION-IN-CHIEF BY MR DOUGLAS PN30
EXHIBIT #VISY1 STATEMENT OF LEIGH GRANGE STEWART PN85
CROSS-EXAMINATION BY MR ADDISON PN85
RE-EXAMINATION BY MR DOUGLAS PN238
THE WITNESS WITHDREW PN242
THOMAS GREGORY BURRASTON, AFFIRMED PN243
EXAMINATION-IN-CHIEF BY MR DOUGLAS PN243
EXHIBIT #VISY2 HISTORY OF PAST INDUSTRIAL ACTION, DOCUMENT PN351
CROSS-EXAMINATION BY MR ADDISON PN380
RE-EXAMINATION BY MR DOUGLAS PN543
THE WITNESS WITHDREW PN552
JOHN LYMBERIS, SWORN PN554
EXAMINATION-IN-CHIEF BY MR DOUGLAS PN554
CROSS-EXAMINATION BY MR ADDISON PN581
RE-EXAMINATION BY MR DOUGLAS PN660
THE WITNESS WITHDREW PN669
ROBERT IAN JOYCE, SWORN PN676
EXAMINATION-IN-CHIEF BY MR DOUGLAS PN676
CROSS-EXAMINATION BY MR ADDISON PN720
EXHIBIT #VISY3 BUNDLE OF DOCUMENTS PN756
RE-EXAMINATION BY MR DOUGLAS PN782
THE WITNESS WITHDREW PN799
JONATHAN PHILLIP ZWORT, AFFIRMED PN817
EXAMINATION-IN-CHIEF BY MR ADDISON PN817
CROSS-EXAMINATION BY MR DOUGLAS PN847
RE-EXAMINATION BY MR ADDISON PN915
THE WITNESS WITHDREW PN936