C2005/410, Transcript of Proceedings [2005] AIRCTrans 2514 (12 December 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 13560-1

COMMISSIONER HINGLEY

C2005/410

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
AND
PILKINGTON (AUSTRALIA) OPERATIONS LIMITED, VICTORIAN STATE OPERATIONS BUSINESS UNIT
s.170LW - Application for settlement of dispute (certification of agreement)
(C2005/410)

MELBOURNE

10.00AM, MONDAY, 28 NOVEMBER 2005

Reserved for Decision

PN1

MR K REIDY: I appear on behalf of the CFMEU, with me MR T HANLON of the CFMEU.

PN2

MR P RONFELDT: I'm a legal practitioner and I appear with your leave, with MR G SOUTHWARD, he's the National Employer Relations Manager for the company.

PN3

THE COMMISSIONER: Thank you. Mr Reidy, leave to appear opposed?

PN4

MR REIDY: I oppose leave, Commissioner. Commissioner, Mr Southward is here today as a HR Manager of Pilkington's Australia and he takes care of their - as it says in his affidavit, he takes care of all their operations across Australia. I can only imagine that to have such a high position within the company dealing with human resources, Mr Southward has considerable experience in coming to the Commission and dealing with matters of this nature and I therefore see no reason why that the union is not represented by Pilkington's, if it has a HR Manager with considerable experience and requires counsel to represent them today.

PN5

MR RONFELDT: Commissioner, I would advance two reasons why I should be given leave to appear today. The first is that Mr Southward is to be called as a witness and the second is that this hearing involves matters to do with the jurisdiction of the Commission and it's fair for the company to take advice and have the assistance of a person with expertise in legal issues.

PN6

THE COMMISSIONER: Well, they can take advice. That's not the same thing as being represented.

PN7

MR RONFELDT: Of course, Commissioner.

PN8

THE COMMISSIONER: Jurisdiction matters such as this are not all that complicated, are they? Is this a complicated matter?

PN9

MR RONFELDT: Commissioner, this matter is a little complicated by the absence of the union providing, in accordance with the rules, the ordinary description of what this dispute relates to and providing sufficient basis to support its application that this matter falls within the jurisdiction of the Commission.

PN10

THE COMMISSIONER: You see, under section 42(3) the Commission needs to be satisfied that having regard to the subject matter that there are special circumstances, that's one, and two, that the party can only be adequately represented by legal counsel. Does it pass either or both of those two steps?

PN11

MR RONFELDT: Commissioner, we submit that it would pass both of these tests for the reasons I've given in that Mr Southward is appearing as a witness and that the matters in question today do give rise to special questions in relation to the jurisdiction of the Commission, particularly given the disadvantage of the company having to respond to an application where the union has not complied with the rules in bringing the application before the Commission. If it please the Commission.

PN12

THE COMMISSIONER: Mr Reidy, do you want to say anything further?

PN13

MR REIDY: The question of Mr Southward giving evidence, Commissioner,
Mr Southward has already put together an obit. There is nothing stopping Mr Southward from representing the company in the form of affidavit in support of whatever application or submissions that he wishes to make. If he does decide to do that, I'm still able to cross-examine him. I don't see how that affects the company's representation, simply by the fact that he's appearing as a witness, Commissioner. The question of Mr Southward not being across or not being aware of what exactly the dispute is about or what the position is that the union has put, Mr Southward has been involved in this process going back to early October. He would know what this - and that includes at least two conciliation conferences at this Commission, Commissioner.

PN14

He would be as well aware as anyone else involved in this dispute of what the union's position is and what the nature of this dispute is. The question of jurisdiction being a complicated one, I'd agree with you, Commissioner, it's fairly straightforward what the jurisdictional objection is, the Act and the case law which the respondent's been made aware of in my submissions, or my submissions state what position we're coming from, what case law we'll be relying upon. Then the agreement is there. I'm sure as a HR Manager that Mr Southward is well aware of what's contained within his own company's enterprise agreements. So I simply put those as my submissions and why I think that Pilkington's representative not be granted leave in this case.

PN15

THE COMMISSIONER: Yes. I'm sorry, Mr Ronfeldt, but I'm not convinced that I'm not satisfied that the arguments you put satisfy 42(3). There isn't consent between the parties, first of all. Having regard to the subject matter, I'm not convinced there are special circumstances of the nature under the Act, and I'm not satisfied that Mr Southward can't represent the company given that it's a jurisdictional matter that has been on foot for some time.

PN16

MR RONFELDT: Commissioner, if I could add two things by way of response to that. When this matter has previously been before the Commission, the question in relation to jurisdiction hasn't been raised. The company participated in a conference before Commissioner Blair. In the spirit of seeking to resolve an issue which had been raised by the union, it's not unusual for parties before this Commission to hold discussions but with the Commission's assistance, where the issue of jurisdiction has not yet been determined. In that respect Mr Southward has not been on notice as it were of the jurisdictional issues involved other than - - -

PN17

THE COMMISSIONER: Well, we would have got the outline of submissions.

PN18

MR RONFELDT: Of course, Commissioner, when he was participating in those earlier proceedings. I might also add that I appeared on behalf of the company in the second conciliation before Commissioner Blair.

PN19

THE COMMISSIONER: I see.

PN20

MR RONFELDT: I did so on the basis, without objection from the union, but I did do so on the basis that Mr Southward was unavailable on the day in question, but my appearance on that date was not objected to by the union. Of course, Commissioner, my appearance before the Commissioner was a matter of leave.

PN21

THE COMMISSIONER: Look, I just can't be convinced that it's met the requirements of the Act, Mr Ronfeldt. I mean, I am required to be satisfied on those two specific counts. I'm just not.

PN22

MR RONFELDT: Well, Commissioner, if you'd permit me to find my submissions in relation to that point - - -

PN23

THE COMMISSIONER: Well, if you'd like me to reverse my decision you're going to have to.

PN24

MR RONFELDT: According to subsection (3)(b), the special circumstances in this case are that the parties unrepresented in these proceedings have proceeded to this point without having regard to jurisdiction. The question of jurisdiction has now been raised. The question of jurisdiction was raised by me on instruction from the company. The union, in spite of being implored to do so, hasn't provided an application in accordance with the rules or hasn't provided detailed submissions in relation to jurisdiction. It would assist the Commission, I submit, that I be granted leave to appear so that on behalf of the company I can take the Commission to the case law which is relevant to the determination of jurisdiction.

PN25

Mr Southward, while he is an experienced Human Resource practitioner, he's not an experienced advocate before this Commission. He has appeared on a number of occasions before this Commission in relation to conciliation conferences. He's not conducted a jurisdictional hearing of this kind before and he has no experience in relation to either the jurisdictional issues or the evidentiary issues that may arise in today's proceedings. That is not the case in relation to Mr Reidy's appearance and I understand that he appears as a matter of right, but it would be, in my submission, unfair to prevent the company from being permitted to have a legal practitioner represent it today. Thank you, Commissioner.

PN26

THE COMMISSIONER: Are you wanting to say anything more, Mr Reidy?

PN27

MR REIDY: Commissioner, I'll just add that the jurisdictional objection was raised by the company. It was raised some time ago during the second conciliation conference. So we're at this point now because of the company's decision to object to the Commission's jurisdiction to hear this dispute. They've gone from the assumption, Commissioner, that they will automatically get leave for counsel today and on that basis they've decided that they've gone forth on that basis. So Mr Southward, they say, isn't sufficiently experienced to cover the issues that will be raised today in this hearing.

PN28

THE COMMISSIONER: Yes, they say they'll be disadvantaged by that?

PN29

MR REIDY: I don't see how they will be disadvantaged. I'm not sure of what Mr Southward's experience in the Commission is, but if it's of such a low standard, not to say that he wouldn't put good submissions, Commissioner, but the other alternative that would have been open to Pilkington's would have been to get someone from an employer organisation to represent them today which would have placed that person in the same position as I am, that they have an automatic right to appear, and that's what Pilkington's could have done and I'm sure they could have used a member of their employer organisation, but instead they decided to use a solicitor to appear for them today and they ran the risk that the solicitor would not be allowed leave to appear.

PN30

That was their decision. We're here today because of their decision that the Commission did have jurisdiction and I just think that it's a bit rich now to say that they'll be at a disadvantage because of the decisions that they've made before the sitting today, Commissioner.

PN31

THE COMMISSIONER: Yes, Mr Ronfeldt, I take your submissions on trust and I will allow you to proceed. I put you on notice, though, that if I reach a view that those submissions don't stand up, I may change my mind.

PN32

MR RONFELDT: Thank you, Commissioner.

PN33

THE COMMISSIONER: I'll reverse my decision and I'll allow you leave to appear. Yes?

PN34

MR REIDY: Commissioner, today's hearing is about the jurisdiction of the Commission to hear the dispute that was lodged by the CFMEU back in early October of this year. I'll deal briefly with the facet of the dispute. I won't go into too much detail, but just enough to get you across the issues.

PN35

THE COMMISSIONER: Yes.

PN36

MR REIDY: Put simply, the subject matter of the dispute is a direction that was given by Mr Tim Calderwood, he's the production manager at Pilkington's glass plant in South Oakleigh. The direction was given to three employees who worked on afternoon shift at the South Oakleigh plant, and the direction was that those employees would transfer from afternoon shift and be put on day shift for an indefinite period.

PN37

THE COMMISSIONER: What's happening at the moment in respect of that?

PN38

MR REIDY: All three employees are currently working on day shift. At the time that that direction was given, one employee said that he would transfer automatically. No clients were doing that. One other employee was not, although he initially resisted it, he, quote, "soon afterwards" agreed to go and work on day shift. So why the dispute came about was that the afternoon shift shop steward, who was the third employee, he did not want to transfer from afternoon to day shift. He made it clear in the conciliation conferences here that he wanted to remain - that he was happy and he preferred working on afternoon shift, and that's why the dispute was lodged for that particular employee.

PN39

Nonetheless the direction was given that on the 21st of this month he had to work on day shift and he complied with that direction, obviously pending the outcome of the general dispute.

PN40

THE COMMISSIONER: So this decision arising from this dispute really relates only to him?

PN41

MR REIDY: Yes, that's correct, but obviously, also however you apply, if it gets to the point where the dispute is actually - the general dispute is arbitrated - however you apply that clause, or the clauses in question will have a general impact on the operation of that plan and the agreement.

PN42

THE COMMISSIONER: Well, that's the ultimate decision and of course I need to say too, this is a jurisdiction matter.

PN43

MR REIDY: Yes, that's correct. Commissioner, I'd like to begin with section 170LW of the Act. As you're no doubt aware, Commissioner, that section of the Act provides that the procedures in a certified agreement for preventing and settling disputes between the employer and employee, whose employment will be subject to the agreement, may, if the Commission so approves, empower the Commission to do either or both of the following, and it's got subsection (a), "To settle disputes over the application of the agreement," and I'd just like to say that that's the first thing that we rely upon, Commissioner, and that that works in conjunction obviously with the dispute resolution clause in the applicable agreement which is Pilkington's (Australia) Operations Limited, Victorian State Operations Enterprise Bargaining Agreement Stage 6 Agreement 2004, and I'll just hand a copy of that up, Commissioner.

PN44

THE COMMISSIONER: Yes, thanks.

PN45

MR REIDY: At clause 22, Commissioner, of that agreement it states at clause 22.1, Commissioner, subsection (b) on page 17, it states that:

PN46

Failing a satisfactory settlement being achieved following such discussions, the dispute may then be referred to the Australian Industrial Relations Commission for conciliation and arbitration if required.

PN47

So really, Commissioner, those two sections working together, section 170LW and that subsection of the enterprise agreement, the current agreement, when put together, they provide you with the powers to settle the dispute if it's not settled between the parties, if it reaches that point, to settle the dispute by arbitration, that would be the private arbitration powers that were outlined in the High Court case that's been given that name.

PN48

My next step would be, having that power under the Act in the agreement, that the next matter, and probably the most important matter, is how this dispute will be characterised and can it be characterised so that it falls under a term of the clause of the enterprise agreement. I just hand up a copy of the decision in
SDA v Big W. Can I just take you to paragraph number 20 of that decision, Commissioner, and just to reiterate what I've said, at the last sentence of that paragraph, Commissioner, it says, the Full Bench says:

PN49

It is necessary for the Commission when it is asked to deal with a matter arising under the dispute settling procedure in an agreement to ascertain the character of that dispute that is before it in order to determine whether the matter is a dispute over the application of the agreement.

PN50

So obviously the next step we would have to take is, does the nature of the dispute fall within the terms of the agreement? Can it be characterised in that way? The Full Bench, in stating whether there should be a narrow view taken, or whether there should be a broad view taken, made the finding that - and I'll probably just restart by explaining the facts of the Big W case - the facts were that there was a dispute lodged over anti-fatigue matting for door breeze at Big W stores. The dispute was brought to the Commission by the SDA. Commissioner Eames heard the matter and he said that as anti-fatigue matting wasn't actually referred to in the agreement, then he couldn't hear the matter, he couldn't arbitrate it because it wasn't actually a term about - or it wasn't about the application of the agreement, and the SDA argued that it was covered as it fell within the Occupational Health & Safety clause of the agreement.

PN51

Now, it went to a Full Bench and the Full Bench has decided that, and this is where I get to this clause, Commissioner, that in deciding how a dispute should be characterised, that - and this is at paragraph number 23, Commissioner, that - and it's just after the reference there, the Hayman v Dales and it starts with:

PN52

What comprises a dispute over the application of the agreement should not be narrowly construed. To do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement.

PN53

So I guess what I would say, Commissioner, is that the Full Bench is of the view that if the dispute comes then the Commission shouldn't take a narrow view about, all right, is this exact precise matter covered in the agreement, is it actually referred to in the agreement. Instead the Commission should be of the view that if at all possible, if there is a logical link between the matter in dispute and a clause in the agreement, that the Commission should take a broad view of what jurisdiction it has for the purpose - I suppose the ultimate purpose of that being, taking that broad view, is that matters are able to be dealt with here in the Commission and they shouldn't be allowed to just stew along in the work place by the union, for example, as it is in that case, and in this case, being prohibited from coming to the Commission, having it heard by an independent umpire and walking away and saying, look, we've had the matter heard, that's the outcome. It's an independent body that's heard it, and that settles the matter.

PN54

So I think that's a view, or that's certain my take on what the Commission, the Full Bench meant in that case. So how does that apply to this case? Well, if I could take you to clause 10, Commissioner, of the agreement, there is a clause there titled Shift Work. Now, unfortunately it refers back to the previous agreement, that's on page number 8, Commissioner, it refers back to the previous agreement. I'll just hand you up a copy of that.

PN55

THE COMMISSIONER: Yes.

PN56

MR REIDY: Now that clause 10 of that agreement, it goes into detail about shift work and what has been agreed regarding that. Now, in effect, that clause - what actually happens at the plant and what's contained in the clause don't marry up because once you read into the agreement you see that shift work has only been contemplated at the time that this agreement was made. So it talks about there being two shifts, when in actual fact there's actually three shifts, day, afternoon and night, that's what happens in practice. It talks about rotating of shifts, when in actual fact the shifts are all fixed. So it doesn't marry up, but for whatever reason, and I wasn't around at the time that the current agreement was negotiated, but for whatever reason the parties saw fit to just refer back to that previous agreement.

PN57

So this is what we have, Commissioner. This agreement makes no reference at all to employees being transferred from an afternoon shift or a night shift or whatever because it only talks about rotating shifts. So it probably wasn't contemplated as being an issue. But this is what we have to deal with, Commissioner, and this is the clause that we rely upon. What I say is, the issue in this dispute is, is the company able to give a direction to somebody who does not want to move from the shift that they are on, that they have been on for the past few years, are they able to give a direction that they transfer to another shift and does that employee have to follow that direction?

PN58

I say that no, that's not the case because it should be properly characterised as a dispute about shift work. Now, the application of the agreement is that it has nothing in there at all about shift work. But nonetheless it's a dispute that falls under a clause in the agreement and that clause is shift work. Because of the way that this has developed there's nothing in there that can help us, direct us to say it cannot happen. But, and just following what I gather is the company's argument, is that if the agreement is silent on a matter as it is in this case, then really the company is able to do what it likes. It's able to say, well, the agreement is signed. So we can do a transfer like that if we think it's fit, if it fits in with how the business needs to run.

PN59

Now, I don't think that that's a very productive view because it could lead to a situation like this, Commissioner. There is a night shift that works at Pilkington's South Oakleigh that's covered by this agreement. There are eight workers that work on that night shift. They get, because of the award, the benefit of the 30 per cent penalty rate for working night shift and they're on permanent night shift and they've probably got their family lives arranged around that, like, they might pick up their kids, whatever, from school, I don't know, but they've probably no doubt got their lives arranged around that.

PN60

According to what the company's view is, there's nothing in there about transferring of employees, so the company could come in tomorrow and say, everybody on night shift, we're transferring you to day shift. You've got one week's notice, and that's what applied in this case. The employee was in the end given one week's notice. So they give them the notice. Say we're transferring you on to day shift. You're not going to take your penalties with you, of course, because you're working day shift, and you're going on there on an indefinite basis, and there is nothing at all in this agreement that makes any reference to that situation, so on the company's argument, they'd just be stuck with it and they wouldn't be able to come here and have the matter arbitrated either.

PN61

So when you compare that kind of scenario, which is entirely possible on the company's argument, with what the Full Bench has said and that the dispute, when it's been characterised, it shouldn't be done narrowly, otherwise it would be contrary to the notion that certified agreements are intended to facilitate a harmonious working relationship to the parties during the operation of the agreement. Now, on the company's construction, it would actually be the complete opposite.

PN62

The agreement would actually be used as a tool against the workers, against the employees because any matter that hasn't been though up in the future, they'd simply say, well, it's not in the agreement, so I'm sorry, this is what you're going to have to accept. So I rely upon that, Commissioner, to say that this dispute should properly - it's a dispute about shift work. There is a clause in the agreement that deals with shift work, so it is about the application of the agreement.

PN63

Now the fact that the agreement doesn't cover this particular situation, that doesn't mean that the company is able to do it. It may come down to, it needs to go to the Commission, it needs to be arbitrated whatever the outcome is. If the Commission says, well, that's the way it's going to be. I think it should be three weeks' notice, but they can do it, then, you know, we have to accept that. But it should not be a case where we can't even get to that point because all it's going to do is create a lot of disharmony within the work place. When people see other people being shifted from this shift to that shift on a whim by the Production Manager and then they turn to us and say what can we do, and we say, well, I'm sorry, but it's not in your agreement, so you're stuck with it.

PN64

Just to back up my argument there, Commissioner, I turn back to clause number 22.1 of the agreement and at the first dot point, (i) there, at the very top of page 17, it makes reference there, and it's an important point, about when the disputes procedure, when it can be called upon by either party, and it says:

PN65

When a matter coming within the ambit of this agreement or is in dispute between the union and the company or a matter coming within the ambit of agreement which is likely to cause a dispute, the following procedure shall be followed.

PN66

So it talks about ambit and shift work so it's got a broader - no doubt you understand the notion of ambit and what it means, Commissioner. It's a broad concept and I would say that shift work certainly comes within the ambit of this agreement. There's no doubt about that. It's a clause in the agreement and when you put that and you put that clause in the agreement and you put them together, it does provide - it opens up access to the disputes procedure for the Commission which will obviously, as I stated before, Commissioner, includes arbitration.

PN67

In the alternative, if you were to rely upon the company's argument about the shift work clause in the agreement being silent on the matter of transfer, there is at clause 26 of this agreement a no further claims clause. This is, I'd say, a fairly robust clause. It covers just about every possible scenario, or in my view, stating that:

PN68

The company, the employees and the union will not by any means whatsoever demand, pursue or make any extra claims relating to benefits, conditions, obligations on all matters contained in this agreement, and further -

PN69

that's just in the agreement:

PN70

- and the company, employees and the union will not by any means whatsoever demand, pursue or make any claims relating to benefits, conditions, obligations or matters that are not contained in this agreement.

PN71

So it covers both scenarios. It's got what's in the agreement, what is not in the agreement, and then goes on to say at dot point (iii):

PN72

The company, employees and the union will not seek any changes to the employees' terms and conditions of employment.

PN73

At the time this agreement was made, Commissioner, the member in question was working afternoon shift. He was working a permanent afternoon shift. As far as he knew, that wasn't going to change and certainly the company gave him no indication that it was going to change. This clause, if you follow the company's argument that clause 10 on shift work was silent, then you'd have to say, well, if it's silent about it and the company issues this direction, that they're actually making an extra claim by doing that. This clause, clause 26, I think makes it quite clear that the company and the union, everyone involved in this agreement, cannot make an extra claim during the life of the agreement. That goes up until 30 April 2007.

PN74

So that's to make sure that everybody knows, once this agreement has been made, whatever you've got now, that's the way it's going to stay. You've read the agreement, you voted on the agreement, so whatever happens, if it's in there, you've got to accept because they've done that but there'll be no extra claims. It ensures that all the parties know exactly where they stand and it acts as reassurance, it acts in the way the Full Bench said the agreement should settle disputes and it should lead to harmony in the work place and that's exactly what this agreement does because it maintains certainty between all parties. I'll leave my submissions there at this time, if the Commission pleases.

PN75

THE COMMISSIONER: Your outline of argument provided to the Commission, Mr Reidy, I'll mark as CFMEU1.

EXHIBIT #CFMEU1 OUTLINE OF ARGUMENT CFMEU

PN76

MR RONFELDT: Commissioner, we call Mr Glenn Southward.

EXHIBIT #R1 OUTLINE OF SUBMISSIONS OF PILKINGTON'S
<GLENN SOUTHWARD, SWORN [10.38AM]
<EXAMINATION-IN-CHIEF BY MR RONFELDT

PN77

MR RONFELDT: Mr Southward, have you prepared an affidavit in relation to these proceedings?---Yes, I have.

PN78

Commissioner, if you permit, I would like to exhibit Mr Southward's affidavit. This is the original copy. On Friday we faxed through a copy, sir.

PN79

THE COMMISSIONER: I'm going to mark it R2, but I include in that the attachments. I'll just look at the original.

EXHIBIT #R2 STATEMENT OF GLENN SOUTHWARD WITH ATTACHMENTS

PN80

MR RONFELDT: Commissioner, I understand that the union also received our facsimile on Friday which included Mr Southward's affidavit. It's a matter for the Commission if you would like Mr Southward to read his affidavit on to transcript.

PN81

THE COMMISSIONER: No, I don't and I've read it, it may assist you to know that. I've read all the materials that have been supplied by the applicants.

PN82

MR RONFELDT: Mr Southward, is there any aspect of your affidavit that you'd like to correct?---No.

PN83

Mr Southward, if I could hand you a copy of your affidavit. Mr Southward, could I ask you to go to paragraph 26 of your affidavit?---Might I ask if I could get my reading glasses, thanks?

PN84

THE COMMISSIONER: We can get them for you. I sympathise with your problem?---Thank you very much.

PN85

We're all in the same boat.

PN86

MR RONFELDT: Mr Southward, in you affidavit you've indicated that Mr Osborn commenced on day work on 21 November 2005 and remains on day work?---That is correct.

PN87

Mr Southward, are you aware of any indication by Mr Osborn that his consent to work on days is subject to these proceedings?---Sorry, could you say that again, please?

**** GLENN SOUTHWARD XN MR RONFELDT
PN88

Are you aware of any condition with Mr Osborn placed upon his consent to work days that relates to these proceedings?---Mr Osborn hasn't given me any condition - hasn't spoken to me about any condition.

PN89

Mr Southward, could I ask you to also now turn to paragraph 18 of your affidavit. Actually, I'd like you to just have a look at paragraph 17 and paragraph 18. Can I ask you in relation to both the evidence you give in both paragraphs. During the course of the conference that you describe there, did the union indicate to you that the company was in breach of the no extra claims clause?

PN90

THE COMMISSIONER: Before the witness answers that, is it appropriate that matters discussed in conciliation on a without prejudice basis should be used here today?

PN91

MR RONFELDT: Commissioner, in this matter there's no evidence as to the characterisation of the dispute. There's unfortunately no transcript available of what was said on either occasion before Commissioner Blair.

PN92

THE COMMISSIONER: Well, I wonder would it be useable if it were. I mean, aren't you conciliation conferences on a without prejudice basis?

PN93

MR RONFELDT: Commissioner, this - - -

PN94

THE COMMISSIONER: I'm asking a question. I'm not saying that was the case because I wasn't there. Commissioner Blair was. Isn't it frivolous?

PN95

MR RONFELDT: Commissioner, you're entitled to inform yourself however you see is fit and - - -

PN96

THE COMMISSIONER: See, part of the reason for your appearance in this matter was that you say that there are a number of matters, formal matters that need to be closely adhered to and weren't. Well, we need to apply that to everybody.

PN97

MR RONFELDT: Commissioner, this Commission is not bound by the rules of evidence. So any limitation in the Evidence Act that might apply to without prejudice discussions doesn't strictly apply here and in any event those rules in relation to evidence are discretionary such that where the probative value of the evidence outweighs the prejudicial effect of that evidence, that it's still admissible.

**** GLENN SOUTHWARD XN MR RONFELDT
PN98

MR REIDY: Commissioner, as it states there, I mean, I was involved in these conciliation conferences. My view always is when you go into conference that's where it stays and when you walk out of the room it doesn't go any further, let alone be bought up in a hearing to be used against you, otherwise next time you go into a conference with Pilkington's we won't be putting any offers on the table or talking too much because we think, well, we turn up to a jurisdictional hearing on an arbitration and they'll start throwing it back in our faces. You know, they made offers, we made offers. That's always been my understanding of how it works, not to be used against you further down the track.

PN99

I hope that today the company referred to on what I said in paragraph number 17, it says, Mr Reidy has said if any of you contended, I disagree with what's said there, but let alone from that, what I said was I actually - the first hearing on 11 October, I think it was, that was on transcript at the start. We actually started on a transcript. Now, I don't know if that transcript was actually transcribed or not, but if the company wants to use that, what I said on transcript, and that says everything that needs to be said, I bring up everything they've got here. If they want to do that, then I can't stop them and I'll be quite happy for them to do that. All they have to do is pay the sum required to get it transcribed. But they shouldn't - in the absence of that, they shouldn't be bringing up what was said between the parties in a conference. If the Commission pleases.

PN100

THE COMMISSIONER: Yes, that was the point that I raised and I think, correct me if I'm wrong, it only applies to paragraph 17, 18 and 19, does it not?

PN101

MR RONFELDT: Commissioner, if you're minded not to allow the evidence that relates to what was said in conciliation, that would appear to affect paragraphs 17 and 18.

PN102

THE COMMISSIONER: Sorry, yes. Look, I put you on notice that that is my view about paragraphs 17 and 18.

PN103

MR RONFELDT: Thank you, Commissioner.

PN104

Mr Southward, can I ask you to refer to paragraph 16. Are you aware whether the CFMEU had notified the Commission of a dispute before, on the same day, or after you met with the representatives of the union on 11 October?---My recollection was that the matter had been listed for dispute. That matter was then cancelled and then we met with the union on 11 October.

**** GLENN SOUTHWARD XN MR RONFELDT
PN105

Can you recall what day that matter was first listed to come before the Commission?---I think it was listed for 10 October.

PN106

So was the listing before Commissioner Blair on 20 October the first time that this was matter was before the Commission?---The 20th was the first time which it was brought before the Commission.

PN107

Can I ask you in relation to a conversation which you refer to in paragraph 16 of your affidavit whether during the course of that discussion the issue of the no extra claims clause was raised?---Not on that occasion.

<CROSS-EXAMINATION BY MR REIDY [10.49AM]

PN108

MR REIDY: Just in regards to the paragraph 15. You said that, I believe, that the union lodged a dispute prior to 11 October, is that your - - - ?---I'd need to refer to my notes to be 100 per cent accurate, but to my understanding the matter was listed before the Commission before that day.

PN109

Do you recall if Tim Calderwood was at work between the period of 3 October approximately and 10 October?---I can't recall.

PN110

THE COMMISSIONER: What was that question 3 - - -

PN111

MR REIDY: I was just asking Mr Southward if he recalls if Mr Calderwood, who is a Production Manager, was at work between 3 and 10 October.

PN112

THE COMMISSIONER: And his answer was he doesn't recall?---I can't recall. We don't work in the same location.

PN113

Witness, you're under oath, so you're not to guess?---Yes.

PN114

MR REIDY: If I said that he was away on leave or at another site and not actually at South Oakleigh, so he wasn't accessible to a union organiser, for example, would you be surprised or - - - ?---Would I be surprised if he was on leave?

PN115

Or if he wasn't at - would you be surprised if Mr Calderwood was not at South Oakleigh plant between 3 and 10 October?---There would be periods of time when he potentially was not there, but he would always be accessible.

**** GLENN SOUTHWARD XXN MR REIDY
PN116

Okay?---If I might explain that, Commissioner. Mr Calderwood's state of domicile is Western Australia and he does travel backwards and forwards for family matters quite regularly as well as has an interest in the Western Australia business from which he came to our location in Victoria. So from time to time he does travel backwards and forwards on a regular basis.

PN117

THE COMMISSIONER: I see.

PN118

MR REIDY: I should explain, Commissioner, that the dispute was lodged on, I believe, 5 October and there was files with it and it was re-lodged the next day on 6 October. It didn't have all of the full details required. But it was on Mr Calderwood's return, and I'm not sure if Mr Southward's - - -

PN119

Do you remember, 11 October, do you remember why 11 October was nominated as a date that we would meet, that the union would meet with Pilkington's representatives to talk about the matter of the transfer from - - - ?---I don't know why the 11th was chosen. I could refer to my notes if that would help but I can't recall as to why - I think that was a Tuesday.

PN120

Would it surprise you if I said that it was because Mr Calderwood was away and he didn't get back until 11 October, is that something you could accept as a possibility?---It wouldn't surprise me. As I said, he travels backwards and forwards quite regularly.

PN121

Now, you've said that when we first came to the Commission on 20 October to have the dispute heard, that - - -

PN122

MR RONFELDT: Commissioner, my friend I believe is about to ask a question in relation to what occurred in conciliation.

PN123

THE COMMISSIONER: I had better hear it first. I may disallow it, but I will hear what it is first.

PN124

MR REIDY: On 20 October 2005 we came to the Commission to have the dispute heard. Do you recall if that dispute, when it was heard by Commissioner Blair, if it started in arbitration or it started in hearing and then went to a conference, do you recall if that's the way it proceeded?---That's correct.

PN125

And do you recall when I was making application, putting my submissions about the dispute, if I mentioned the no extra claims clause?---I could refer to my notes, but I can't recall at that stage the no extra claims clause.

**** GLENN SOUTHWARD XXN MR REIDY
PN126

It says here that you said I did not mention it. Do you think that it might be a possibility that I mentioned the no extra claims clause?---No, I don't think it is.

PN127

Would you be surprised if the transcript from that day demonstrated that I did actually raise the no extra claims clause, would that be a shock to you?---Yes, that would surprise me.

PN128

As far as - you've said that Marty - he didn't apply any conditions to him transferring from afternoon shift on to day shift, is that correct?---Can you - - -

PN129

Well, you said he hasn't asked for any special conditions for him to transfer to day shift, or he hasn't raised it?---Well, in the meeting of 20 October - - -

PN130

No, I'm talking about, you answered a question that Mr Ronfeldt asked you and I believe he asked you has Marty, has he asked for any special conditions for - - -

PN131

THE COMMISSIONER: I don't think that was the question, was it, Mr Reidy? The question, as I recall, correct me if I'm wrong on this, to do with whether he made a concession about this hearing to go to day shift, wasn't it?

PN132

MR RONFELDT: Yes, Commissioner, that was my question.

PN133

THE COMMISSIONER: Not about this condition to the employment.

PN134

MR REIDY: I'm sorry, Commissioner, I'll withdraw that question, I must have misunderstood. I've finished with this witness.

<THE WITNESS WITHDREW [10.55AM]

PN135

MR RONFELDT: Commissioner, the company filed an outline of its argument in relation to jurisdiction, Friday, 25 November and - - -

PN136

THE COMMISSIONER: Which I think I marked, did I? I marked it R1, yes, and I should have mentioned that I marked Mr Southward's, when I find it. R2 is Mr Southward's statement.

PN137

MR RONFELDT: Thank you, Commissioner.

PN138

THE COMMISSIONER: Yes, thank you.

PN139

MR RONFELDT: Commissioner, the matters which must be satisfied before this Commission exercises its rights of private arbitration pursuant to section 170LW are set out in our outline of argument. I appreciate that the Commission has read our outline and I don't propose to - - -

PN140

THE COMMISSIONER: You're at liberty to, if you wish, but I do indicate that I have read the materials.

PN141

MR RONFELDT: Read it in detail. As set out in paragraphs 2.1 through to 2.8, it is necessary for an applicant before the Commission in seeking to pursue an arbitration under section 170LW to ascertain a number of things. It's necessary to establish that there is a dispute settlement procedure which provides the Commission with the power to deal with disputes which relate to the application of an agreement by some means of conciliation nor arbitration.

PN142

THE COMMISSIONER: So we have common ground to there?

PN143

MR RONFELDT: We do, Commissioner. It is also necessary to establish that the preconditions and any limitations that are imposed by the agreed disputes settlement procedure fall within the scope of the powers of the Commission pursuant to section 170LW and my friend, in discussing the Big W case referred the Commission to at paragraph 22.1 of 2004 agreement, and I apologise, Commissioner, I haven't taken note of how you've marked that.

PN144

THE COMMISSIONER: I didn't mark it. It's a document of the Commission.

PN145

MR RONFELDT: Thank you, Commissioner. The clause which my friend referred you to is the dispute settlement clause of the 2004 agreement. That clause, at clause 22.1(a) states:

PN146

When a matter coming within the ambit of this agreement is in dispute between the union and the company or a matter coming within the ambit of an agreement arises which is likely to cause a dispute, the following procedure shall be followed.

PN147

However - - -

PN148

MR REIDY: I'm sorry, I'm sorry to interrupt, but there is an error in the actual agreement itself. In that clause 22.1(a) does not actually exist. It's actually 21.1 and then (i). There's actually two i's where there shouldn't be, so just for the sake of clarity.

PN149

THE COMMISSIONER: Yes. I didn't pull you up on that because when you read the words it directed me to where you were reading from, but that's correct.

PN150

MR RONFELDT: Thank you, Mr Reidy. In relation to the way that those words which I have read, irrespective of their breadth the Commission's jurisdiction pursuant to section 170LW is restricted to conciliation and arbitration about disputes concerning the application of the agreement. The parties can agree on a broad dispute settlement arrangement, but the private arbitration case found that in dealing with the agreement of the parties in relation to resolution of disputes the Commission is limited to the subject matter of disputes concerning the application of an agreement. During the course of his cross-examination of Mr - - -

PN151

THE COMMISSIONER: Could I just interrupt you because it's a very interesting point you raise and it's fairly narrow. Shift work is in the agreement, so you say - Mr Reidy says it's about the application of shift work. Now, you say it's about the application of what's in the agreement in words, in text.

PN152

MR RONFELDT: No. Commissioner, the only point I'm making in relation to that paragraph which I read is that the words in that paragraph could be read to relate to disputes which are broader than disputes about the application of the agreement.

PN153

THE COMMISSIONER: I see, yes.

PN154

MR RONFELDT: And in dealing with matters under this section the Commission is limited to exercising its jurisdiction pursuant to section 170LW.

PN155

THE COMMISSIONER: Yes. I'm sorry, I'm running ahead of you with my thoughts.

PN156

MR RONFELDT: In relation to that dispute settlement clause, Commissioner, if I could also ask you to refer to what is in the certified document, 22.1(b), which states:

PN157

Failing a satisfactory settlement being achieved following such discussions the dispute may then be referred to the Australian Industrial Relations Commission for conciliation and arbitration if required.

PN158

Commissioner, in our submissions we refer to the decision of a Full Bench of this Commission on 5 October, being the NTEU v Charles Sturt University decision at PR963494. In that decision the Full Bench determined that the dispute settlement provision in question required certain discussions in an accelerated manner to take place prior to the matter being referred to the Commission. In this case the dispute settlement provision is also set up so that as a condition precedent to matters being referred to the Commission that certain discussions take place.

PN159

It's our submission that just as in the Charles Sturt University case, in this case this dispute was referred to the Commission prior to those discussions which are a precondition to the agreed referral of matters to the Commission taking place. In support of that submission we note that in Mr Southward's evidence today when he was questioned by Mr Reidy about the date on which this matter was notified to the Commission confirmed his understanding that it was notified on 5 October, and that there was some change to the notification on the 6th, and that the matter was originally on the 10th, that is his understanding at least.

PN160

It's our submission that that evidence clearly points to the fact that the preconditions in the dispute settlement procedure haven't been satisfied in this case.

PN161

THE COMMISSIONER: And what do you say is the consequence of that?

PN162

MR RONFELDT: The consequence is that as has been found in other cases, Commissioner, the scope of the agreed dispute resolution procedure is limited by the conditions that are imposed by the parties on that procedure. If that procedure has not been followed then the Commission cannot proceed to conciliation, to deal with the matter by conciliation or arbitration because it's of the nature of a private arbitration clause that all of the conditions of the clause leading up to private arbitration taking place must be satisfied.

PN163

Commissioner, I'd also add in relation to that submission that my friend appears not to have made any submissions in relation to the satisfaction of the dispute resolution procedure. I also note that rule 33 of the union's rules, I understand requires that disputes concerning an agreement be referred to the Commission in a particular form, and form R47 requires amongst other things a description of the steps that have been taken by the parties prior to referring the matter to the Commission. As I indicated earlier, Commissioner, the union has sought to bring this matter before the Commission without, as I understand, filing and serving, or filing a form in that manner.

PN164

MR REIDY: Commissioner, if I could just jump in at that point I might just deal with that matter. There was, as I mentioned before when I was cross-examining Mr Southward, there was an original application that was put in that was lodged via the Commission that deficient. I was notified by the Commissioner's association of that fact and I, on 6 October, I drew up another application and re-lodged it and faxed it through to the Commission, and I think it satisfies all the requirements of the rules of the Commission. I don't know if Mr Ronfeldt has a copy of it. Perhaps if I showed it to him.

PN165

MR RONFELDT: Commissioner, this is a document which hasn't been provided to the company. But if I my friend doesn't appear to have a copy of this
document - - -

PN166

MR REIDY: I think I might have another one, Commissioner.

PN167

MR RONFELDT: If my friend has no objection I'd exhibit this notice.

EXHIBIT #R3 NOTICE OF DISPUTE

PN168

MR RONFELDT: Commissioner, I note that this notice states at about point 7 that the matter has been - the following steps of the dispute settling procedure have been taken. The matter has been discussed between an organiser of the CFMEU and a management representative of Pilkington South Oakleigh plant. Commissioner, I have no instructions to indicate that discussions of that kind took place, and there's no evidence before the Commission that those discussions took place. Furthermore, there's no evidence in relation to those alleged discussions about what was discussed and what dispute if any during those alleged discussions was raised with the company or what the subject matter of that dispute may have been.

PN169

MR REIDY: Commissioner, I have Mr Hanlon with me today. He was actually the organiser who has been involved in this dispute, and he spoke to Mr Calderwood before this matter was listed, and that's the reference I make in the notice, that it's been discussed, albeit briefly in this case, because Mr Calderwood as I believe was heading to Western Australia, but it was discussed - or Queensland sorry. And I'm sure that Mr Hanlon would be more than happy to go into the witness box and give that evidence if the company requires it.

PN170

THE COMMISSIONER: I suggest he does. He will need to I think.

PN171

MR RONFELDT: Commissioner, I'm content if Mr Hanlon wishes to give that evidence now or he wishes to give that evidence at the end of my submissions, and we can come back and make further submissions in relation to that evidence.

PN172

THE COMMISSIONER: Might it not be to your advantage to hear him now?

PN173

MR RONFELDT: Thank you, Commissioner.

<TROY ANTHONY HANLON, SWORN [11.14AM]
<EXAMINATION-IN-CHIEF BY MR REIDY

PN174

MR REIDY: Mr Hanlon, can you give your full name and address
please?---Troy Anthony Hamilton (address supplied).

PN175

Can you recall a date in early, or can you remember a date in October, a day you spoke to Mr Ken Calderwood about a dispute at Pilkington's South Oakleigh plant?---I don't recall the date but it was a week prior to the 11th.

PN176

So approximately the 2nd or the 3rd?---Approximately, on a Friday.

PN177

On a Friday. It might be easy I suppose, Commissioner, if Mr Hanlon was just to check his own calendar so he could confirm at least that time, the date.

PN178

THE COMMISSIONER: Do you know what day it was?---I'd have to have a look at my diary.

PN179

MR REIDY: Just look up the first Friday in October.

PN180

THE COMMISSIONER: The first Friday in October was the 7th?---Well, without being sure, it would be the 7th, the week earlier.

PN181

MR REIDY: So it was on, you say, 7 October you had a conversation on the phone to Mr Calderwood?---Mr Calderwood, who was at the airport and heading to Queensland.

PN182

And what, did you call Mr Calderwood?---I called Mr Calderwood and asked what was happening with Martin Osborn and the three people he was transferring to day shift. He was giving them a week's notice. And the conversation got a little bit heated and we said we'll discuss it when he got back from Queensland.

PN183

So do you think he was fully aware of - sorry. So you explained to him what the dispute was about?---Yes.

PN184

So you left it, that was the only conversation you had with him?---It was the only conversation because he had to get onto a plane to go to Queensland.

PN185

Okay. Did he give you a date when he would be returning?---And coming back on the 10th.

**** TROY ANTHONY HANLON XN MR REIDY
PN186

And between the time of you speaking to him on the 7th and him coming back on the 10th did you have any other phone conversations with him?---No. It would have been - and just if it's the 7th it would have been the week prior to the 7th.

PN187

The week prior to the 7th you say?---Because he was gone for a week.

PN188

THE COMMISSIONER: The 28th? No, I'm sorry?---Which would have been the 2nd.

PN189

MR RONFELDT: Which was Friday, 30 September.

PN190

THE COMMISSIONER: That's right?---Yes.

PN191

MR REIDY: So are you sure that it was - does that sound correct, that that date was the 30th?---Without looking at my diary - - -

PN192

But it was definitely on the Friday?---It was definitely on a Friday.

PN193

Okay, thank you. I have no further questions.

<CROSS-EXAMINATION BY MR RONFELDT [11.18AM]

PN194

MR RONFELDT: Mr Hanlon, could you describe to me what you said to Mr Calderwood on that day? Can you recall what you said to Mr Calderwood on that day?---I asked him why he was transferring the people to day shift. He explained it was their performance with their jobs and had lack of skill on day shift. I said it was very nice you've done that on a Friday and then took off to Queensland on the very - an hour later. There was no way to arrange a meeting with him the following week before it was going to happen. And he said he'll be back on 10 October, that we'll try to tee a meeting up then. And I said that the matter was a bit more urgent than going away to Queensland and we need to speak about it. I don't have notes about the phone conversation.

PN195

Can you recall on what day the three employees, Mr Teasdale, Mr Marchetti and Mr Osborn were to start?---No, I don't recall.

PN196

Do you recall when Mr Calderwood was to return to Melbourne from his
trip?---I'm pretty sure it was 10 October.

PN197

THE COMMISSIONER: You say it was Mr Calderwood's decision, that transfer?---Yes.

**** TROY ANTHONY HANLON XXN MR RONFELDT
PN198

MR RONFELDT: Mr Hanlon, were you involved in drawing the notice to the Commission notifying the Commission of a dispute under the dispute settling procedure in the 2004 agreement?---In writing it up, no.

PN199

Do you recall who on behalf of the CFMEU prepared that notice?---It could have been Mr Kevin Reidy.

PN200

Did you give instructions or did you request Mr Reidy to prepare that notice?---I'd assume I would have.

PN201

Mr Hanlon, could I show you an exhibit which I believe has been marked R3, and it's a document which the CFMEU today has indicated was a notice it filed, notice under a dispute settlement procedure in an agreement. Mr Hanlon, in relation to that notice you will see that the secretary of your union signed that and it's dated 3 October?---Correct.

PN202

Do you know the day on which that notice was filed?---No.

PN203

Presumably, Mr Hanlon, given the date of that notice whether it was the notice that was filed or was a draft notice to be filed? You gave instructions to or requested Mr Reidy's assistance in preparing that notice on or prior to
3 October?---I don't recall.

PN204

Do you think that the date upon that notice might be incorrect?---I don't know.

PN205

Do you recall the day on which you spoke to Mr Reidy about this dispute and indicated to him that the matter should be referred to the Commission?---No.

PN206

Mr Hanlon, it appears based upon your union's submission that this was the notice filed in the Commission that you gave - that you had this conversation with Mr Reidy to notify the Commission of this dispute on or around 3 October. I say that because the notice is dated 3 October. Do you agree?---Can you repeat the question please?

PN207

It seems that you gave instructions to Mr Reidy or had a conversation with Mr Reidy about this dispute, and on or prior to 3 October, given that this notice is dated 3 October?---It would have been discussions with Mr Reidy after the phone call with Mr Calderwood.

**** TROY ANTHONY HANLON XXN MR RONFELDT
PN208

So sometime between the phone call that took place on 3 October. Do you recall what time that phone call took place?---It was very late in the evening.

PN209

Late in the evening?---Yes. Mr Calderwood, we were - it was almost knock off time, almost 5 o'clock.

PN210

Around 5 o'clock?---Around 5 o'clock.

PN211

So sometime between 5 o'clock on 30 September, which was a Friday?---A Friday.

PN212

And 3 October, which was Monday, 3 October. Do you accept that you must have had some sort of discussion with Mr Reidy about notifying this dispute to the Commission?---I would have had a discussion with Mr Reidy about this.

PN213

Are you aware whether Mr Reidy prepared the notice on 3 October?---I'm not aware

PN214

No further questions, Commissioner.

PN215

THE COMMISSIONER: Thank you.

PN216

MR REIDY: Commissioner, I don't have any further questions for this witness, but I'm just wondering as I prepared the notice, when the Commission - I have some documents here that might just explain what went on and might just clarify exactly once and for all, because really I was the one preparing the document, what day it was lodged on.

PN217

THE COMMISSIONER: The witness can remain for the moment and we can do that now.

PN218

MR REIDY: Yes, I'll do that then. I have, and I'm sorry, I apologise to my friend - - -

PN219

THE COMMISSIONER: I'm just indicating that if Mr Ronfeldt wants to I'll allow him to ask more questions of the witness, subject to what you have to say.

PN220

MR REIDY: Thank you, Commissioner. I believe what took place is I was contacted on the Friday, which I think was 30 September, by Troy and told of the dispute, the nature of it and what had taken place. And it was on Friday afternoon, it was pretty late in the day as I recall. I come in Monday and I think I started filling out the application to lodge it, and that's why it's got the date 3 October on it. But I believe I got sidetracked for whatever reason. One way or the other I didn't lodge the dispute until 5 October, but I think I haven't changed the date and that's why it still says the 3rd.

**** TROY ANTHONY HANLON XXN MR RONFELDT
PN221

I actually have a fax from Ms Patti Ladd, who is the associate to Commissioner Blair, just saying that the deficiencies in the notice. And she says there that it was lodged with the Commission on 5 October. And I could hand that up to you, Commissioner, if you'd like.

PN222

THE COMMISSIONER: Well, the document that you've given me, I thought you were talking to the witness about it. It is dated 3 October, but the cover facsimile cover sheet is dated the 6th, and the confirmation sheet is dated the 6th.

PN223

MR REIDY: Yes, that's exactly right, and that's what I was going to get to. That is the date that it was actually lodged on. So I understand Mr Ronfeldt was asking Mr Hanlon about what date it was lodged and so forth, and it was confusing because it did say 3 October. So I just thought I'd explain that that's what actually took place.

PN224

THE COMMISSIONER: Do you want to take that further Mr Ronfeldt?

PN225

MR RONFELDT: Commissioner, I'm not sure whether my friend was giving evidence or making submissions in relation to the document.

PN226

THE COMMISSIONER: Well, he was making submissions arising out of evidence, yes.

PN227

MR RONFELDT: Mr Hanlon - if I can address the question to Mr Hanlon - Mr Hanlon, if we take it that the document was sent in its final form on 6 October to the Commission would you agree with that?---Yes.

PN228

Mr Hanlon, you've indicated that you're not aware of the date, you can't recall the date upon which the three employees were to commence on days?---Correct.

PN229

THE COMMISSIONER: I thought you said in your evidence that you said to Mr Calderwood that he was going to Queensland on Friday and that they were to start on the Monday. Wasn't that your evidence?---I don't recall what date they were starting.

PN230

MR RONFELDT: Mr Hanlon, I take it therefore that you wouldn't object to or you would have no basis for challenging the evidence of Mr Southward, that the day on which they were to commence working in October was 17 October?---No.

**** TROY ANTHONY HANLON XXN MR RONFELDT
PN231

And given that Mr Calderwood was to return on or around 10 October, I take it therefore that a discussion about the transfer could have taken place prior to the transfer having effect, that is, sometime in the week beginning on
10 October?---A discussion did take place before the transfer, and it wasn't brought to the Commission as far as I recall. ..... Commission so I can meet with the company, on the 11th of the 10th we met, and then asked that the meeting with Glen Southward and Mr Calderwood and Martin Osborn. There was - it finished up, yes, coming before the Commission on the 11th of the 10th.

PN232

Mr Hanlon, on the 30th, you've given evidence that on 30 September at approximately 5 pm you had a conversation with Mr Calderwood?---Yes.

PN233

That conversation took place by telephone?---Yes.

PN234

And during that conversation you asked him why the company was transferring employees to days?---Yes.

PN235

During that conversation you also indicated that you'd like to have discussions with him about the matter?---Yes.

PN236

And he indicated he would be absent for a week, is that correct?---Correct.

PN237

You've given evidence that there was a short conversation at about 5 o'clock in the afternoon and there was nothing else was said, is that correct?---To my recollection, that's correct.

PN238

Thank you, Commissioner.

PN239

MR REIDY: I have one further question, Commissioner.

<RE-EXAMINATION BY MR REIDY [11.32AM]

PN240

MR REIDY: When you spoke to Mr Calderwood on 30 September, at any stage in that conversation did you say that the union wouldn't be open to having further discussions?---No.

PN241

So did you tell him that you'd be having the matter brought to the
Commission?---No.

PN242

And you say that a further meeting took place face to face on 11 October?---Yes, 11 October.

**** TROY ANTHONY HANLON RXN MR REIDY
PN243

And can you tell me about those discussions, what took place?---I've got my notes over there if it helps, but I can tell you anyway. We discussed the part - that the three employees were moving to day shift. One employee had been asking for a period of time to go to day shift, so he had no problems with it. Another employee did have a problem with it initially and was not happy about going to day shift. A couple of days after the meeting he decided he wanted to go to day shift. Martin Osborn said straight out he did not want to go to day shift. We put a few options up to the company, that Martin Osborn would come down for their training purposes for a period of time, help train the company. It was not accepted. We asked about penalty rates to be paid while people were on afternoon shift for a period of time. That wasn't accepted by the company. And Mr Southward I think said, without looking at my notes, said we are able to do it, we're going to do it. Tim Calderwood has contacted the Glass Merchants Association, the Australian Industry Group, they say we can do it. So that's the end of the conversation. And there was also parts of it, they have a person on - who was injured in a car accident who was on day shift, and he would be returning at some stage, so we said in the meantime can Martin Osborn go on that shift till this persons returns from day shift, and they said - from his injury, and the company said no, we do not know when he's going to return from his injury.

PN244

At the conclusion of that meeting did you tell the company that you would not hold any more discussions with them or give an impression at all that you wouldn't talk to them further about the matter that was still in dispute?---No.

PN245

Did you tell the company that - did you mention the Commission at all during that meeting? Did you mention about - - - ?---I would have mentioned it at the end of the conversation, if we can't resolve it here we'd wind up in the Commission, resolve it there.

PN246

Okay. And when you went on 20 October at the initial hearing of the dispute, were you present at the Commission when that hearing took place?---Yes.

PN247

Did the company approach you to hold any further discussions about the dispute prior to it taking place or afterwards?---No.

**** TROY ANTHONY HANLON RXN MR REIDY
PN248

No further questions, Commissioner.

PN249

THE COMMISSIONER: You're excused, thank you, Mr Hanlon.

<THE WITNESS WITHDREW [11.36AM]

PN250

THE COMMISSIONER: We interposed in your submissions. Do you wish to continue Mr Ronfeldt?

PN251

MR RONFELDT: Thank you, Commissioner. Commissioner, on the basis of the evidence that Mr Hanlon has give it appears abundantly clear that he had a conversation with Mr Calderwood on 30 September, and resolved that the matters should be discussed following Mr Calderwood's return to Melbourne. I'm not sure whether Mr Calderwood was on annual leave or whether he was, as Mr Southward had indicated in his evidence, perhaps working in another state on behalf of the company during that week of absence, but nonetheless he wasn't there, and Mr Hanlon and Mr Calderwood appear to have resolved that the matter would be discussed on his return.

PN252

It's also abundantly clear from Mr Hanlon's evidence that the dispute was lodged prior to those discussions taking place. Commissioner, if I could now take you to section 6 of our outline of submissions. We note there that the CFMEU has relied upon the Big W case to support its proposition that the dispute properly characterised is a dispute concerning the application of the agreement. The CFMEU have, we say, incorrectly applied the Big W case as it has been found in other cases, and we refer the Commission to the Mildura Fruit Juice case and the University of Western Australia case. A mere reference to a subject matter in an agreement is not sufficient to say that a dispute about the same - the dispute which can also be described as a dispute about that subject is sufficient to give rise to the Commission's jurisdiction in these matters.

PN253

The dispute - and there seems to be no contest between the parties in relation to this matter - is about a direction that was given to Mr Osborn to work on days. The evidence of Mr Southward goes to the interpretation of clause 10 of the 2004 agreement as well as to the earlier agreement which is annexed to Mr Southward's affidavit at annexure 6. In that agreement there is a provision relating to the introduction of 10 hour rotating shifts, and that reference is picked up in the most recent agreement, such that - and I'll refer you to the current clause 10 of the current agreement, which provides that:

PN254

The provisions of clause 10 stage 5 enterprise agreement - 2000 will apply if required.

PN255

Mr Southward's evidence is that clause 10 of the stage 5 enterprise agreement was implemented in response to a company proposal prior to the conclusion of the stage 5 agreement that it may in the future need to implement because of the introduction of new technology, a new arrangement whereby there was a rotation between shifts that spanned 10 hours. Mr Southward's evidence, which is not contested, is also that prior to the introduction of that clause there was at the South Oakleigh plant an afternoon shift as well as people working days, and that that arrangement is the same arrangement under which Mr Osborn has been and is currently working.

PN256

Further, Mr Southward's uncontested evidence is that the provision that was included in the stage 5 enterprise agreement was one to facilitate the introduction of new shift arrangements if required. And that arrangement was continued under the scope of the 2000, the stage 6 agreement by the reference to the stage 5 agreement in clause 10 of the stage 6 agreement. It is clear therefore, Commissioner, that the direction to Mr Osborn to work on days does not in any way involve the application of clause 10 of the current agreement.

PN257

A mere reference to the concept of a shift is not sufficient in that agreement, is not sufficient to give rise to the capacity of the Commission to deal with a dispute about a direction to do with work arrangements which are unrelated to the particular clause in the agreement. As Mr Reidy has conceded I believe, the stage 6 agreement is silent as to the issue of notice of transfer, as well as silent as to the working arrangements under which Mr Osborn is currently working.

PN258

It would be, in the words of Deputy President Hamilton in the Mildura Fruit Juice case, tortuous in the extreme to suggest that the dispute that has been described in relation to the direction to Mr Osborn involves the application in any dimension of clause 10 of the agreement. The CFMEU also contends that the dispute which they say is a dispute about a direction to Mr Osborn, also falls within or gives rise to a dispute concerning the application of the no extra claims clause of the agreement. And, Commissioner, a direction to an employee to work in accordance with their contract of employment is not an extra claim.

PN259

Moreover, I note that Mr Reidy, when he was making submissions in this regard, indicated that the intention of the no extra claims clause in the agreement was that once the agreement is voted on whatever you have is what you have, or words to that effect. I don't have instructions as to the precise date on which the stage 6 agreement was voted on, however it was certified by the Commission on 19 August 2004. In Mr Southward's evidence there is reference to and there is appended to Mr Osborn's contract of employment. And there's a clause there which describes Mr Osborn's obligation to work any arrangement that he is directed to work. There's also reference to the fact that Mr Osborn has worked on days previously.

PN260

If we use Mr Reidy's words to characterise the effect of the dispute settlement procedure, that is, that what you have is what you are going to stay with, then a direction based upon a pre-existing legal obligation is not a matter which falls into a no extra claims provisions. If Mr Reidy wants to argue, which he may well do, over the revocation of the contract of employment, then that's a matter for him. But it's not a matter for this Commission. And in that regard I refer the Commission to what was said in the - I withdraw that, Commissioner.

PN261

I'm searching for a reference which I may need to call upon later. But certainly it's our submission that a dispute about the interpretation of employment contract, unless there's something more that is somewhat nexus between the contract and substantive provisions of an agreement, is not a dispute about the application of a certified agreement and not a matter which falls within the jurisdiction of the Commission under this section 170LW. If the Commission pleases.

PN262

THE COMMISSIONER: Thank you. Mr Reidy, is there any final submissions in reply?

PN263

MR REIDY: Yes, Commissioner. Sure the matter on the dispute was notified. On a conversation, a phone conversation, Mr Hanlon has given evidence in this regard took place on 30 September. Now, the sum total of that conversation, Mr Calderwood said to Mr Hanlon, I can do it, there's nothing stopping me and that's what I'm going to do. So from that, pretty much that's the spirit of - that's the outcome of the conversation with Mr Calderwood. Mr Hanlon thought to himself, well, it looks like there's not going to be too much room to move on this, we'll have to go and notify a dispute to the Commission.

PN264

And under the disputes procedure in the agreement the only steps required is that the union representative discuss the matter with a company representative, and that has taken place. That took place on 30 September. In the event that - it goes on to say in the event that the discussions provided for fail to settle the dispute it shall be referred to the employer organisation. Now, in this case I would say that at the first step arguably Marty Osborn is the afternoon shift shop steward and in that capacity he acts as a representative of the union. If there is a dispute on that site the employees go to him first if they work afternoon shift, tell him about it, and then it's his responsibility as a union representative on the site to go and talk to management about it.

PN265

That's taken place straightaway, because the moment Tim Calderwood told Martin Osborn, I'm going to transfer you, Marty let his objection to that direction known straightaway. So that was immediate. And Martin's tried to do that, and Mr Calderwood has made it clear that he's not moving one way or the other, that's the way it's going to be. Then he's contacted Mr Hanlon, his union representative, the second step in this disputes procedure. He's told Troy about it. Troy's contacted Mr Calderwood and he's raised the issue with him. He said, you know, he made clear what the dispute's about. And Mr Calderwood said no, I can do it and that's what I'm going to do.

PN266

So there's been discussions held, albeit they were short. But if you're getting told that - if someone from the management is telling you this is what we can do and that's what we're going to do, it doesn't mean that you have to sit down and wait a week for them to return. After the discussion's taken place it's quite open to the union or either party to lodge a dispute so it be conciliated in this Commission. And that is what took place.

PN267

And even getting back to prior to 20 October when it was first heard by this Commission, it was first listed to take place I think on 11 October, yes 11 October. We notified the Commission because we wanted to keep discussing the matter. I've contacted Commissioner Blair's associate and said that we're still holding discussions, and I have an email here if the Commission requires it, stating that we're still having discussions with the company, we want to see what the outcome of those are, and asking for a postponement so that we don't waste the Commission's time by coming if we can settle it ourselves.

PN268

We didn't hold out much hope, and in the end, you know, things haven't worked out the best, or we haven't got what we were after. So we went on and we asked for the matter to be relisted. What I said in that email on 10 October, I asked for it to be adjourned indefinitely so we could hold further discussions. So I make that point in reference to what Mr Ronfeldt said about us lodging the dispute before we'd actually held discussions. There had already been two failures of the discussions taking place. It doesn't say in the agreement that those discussions have to be held for a certain amount of time or within a certain - whatever proximity they must take place in. It just said discussions. And that had certainly taken place and we'd certainly formed the view that we had a dispute on our hands and that we're required by the Act to notify the Commission when we have a dispute. And that's what's taken place, and I just make those submissions on that point, Commissioner.

PN269

THE COMMISSIONER: Thank you.

PN270

MR REIDY: On the second point Mr Ronfeldt refers to the Mildura Fruit Juices case. They correctly points out Deputy President Hamilton heard on 30 September 2003. Now, I think where this case can be distinguished is quite simply on the facts. And quite rightly I think I assume Deputy President Hamilton's view, that this was a fairly ambitious endeavour that the AMWU was undertaking, in that they were trying to link a ban on smoking in the workplace to a policy about KPIs and them being assessed against an employee's conformance with employment, you know, with the employment policies and procedures.

PN271

So they're trying to make - it's a fairly tenuous link I'd say. There's not something in there saying if the company is trying to introduce a new policy it must consult with employees or anything like that, there's nothing that concrete. It really is quite tenuous. Whereas in this case we've got an actual situation where we have something, we have an agreement with a reference to shift work, and we have someone that's been taken from one shift to another.

PN272

It's not tenuous, it's not tortuous, which is a word Mr Ronfeldt, taking it from Deputy President Hamilton's decision, it's not tortuous at all. It's a quite clear link between someone being transferred between shifts and a clause in the agreement about shift work. And the agreement even backs it up further and it makes reference to the ambit in the disputes procedure. It makes reference to the word ambit in the agreement. And it's certainly, if someone is being transferred from one shift to another, it's certainly, on my submissions, within the ambit of a clause on shift work.

PN273

I think, Commissioner, I'll probably just leave my submissions there for the moment. If the Commission pleases.

PN274

THE COMMISSIONER: Are you done, Mr Ronfeldt, as well?

PN275

MR RONFELDT: Commissioner, I'd just observe that I'm instructed in relation to Mr Reidy's observation that Mr Osborn objected to the transfer on
30 September, that I'd observe that there's no evidence to that effect. And certainly there is evidence that at some time on or around 11 October discussions took place between the parties, and Mr Osborn's objection to the transfer was then noted. However there's no evidence that he objected on the 30th. And to respond to Mr Reidy's suggestion that he did, my instructions are, although I have no evidence to support it, that his comment to Mr Calderwood on that day was, good, now I can go fishing.

PN276

If there was any discussion between Mr Hanlon and Mr Calderwood on the 30th that discussion didn't fall within the scope of what's required by the dispute settlement procedure. The matters in dispute which the union contends is the misapplication of the agreement was not on Mr Hanlon's evidence raised in any way. A refusal by one employee, and my instructions are that it was Mr Teasdale who at that time was objecting to the transfer, to work as directed is not properly characterised in the context of that discussion which took place by telephone at 5 o'clock on 30 September, a matter, a dispute concerning the misapplication of the agreement. If the Commission pleases.

PN277

THE COMMISSIONER: I will reserve my decision and adjourn.

<ADJOURNED INDEFINITELY [11.57AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CFMEU1 OUTLINE OF ARGUMENT CFMEU PN75
EXHIBIT #R1 OUTLINE OF SUBMISSIONS OF PILKINGTON'S PN76
GLENN SOUTHWARD, SWORN PN76
EXAMINATION-IN-CHIEF BY MR RONFELDT PN76
EXHIBIT #R2 STATEMENT OF GLENN SOUTHWARD WITH ATTACHMENTS PN79
CROSS-EXAMINATION BY MR REIDY PN107
THE WITNESS WITHDREW PN134
EXHIBIT #R3 NOTICE OF DISPUTE PN167
TROY ANTHONY HANLON, SWORN PN173
EXAMINATION-IN-CHIEF BY MR REIDY PN173
CROSS-EXAMINATION BY MR RONFELDT PN193
RE-EXAMINATION BY MR REIDY PN239
THE WITNESS WITHDREW PN249