C2005/1785, Transcript of Proceedings [2005] AIRCTrans 666 (16 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 10780

COMMISSIONER BLAIR

C2005/1785

s.99 - notification of an industrial dispute

Civiquip Industries Pty Ltd
and
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
(C2005/1785)
Metal, Engineering and Associated Industries Award 1998

MELBOURNE

8.11AM, MONDAY, 07 MARCH 2005

Continued from 4/3/2005

PN62

MR P HOULIHAN: I seek leave to appear on behalf of the employer and with me is MR W JOHN.

PN63

MR F EIFFE: Yes, Commission, the appearances are unchanged. I act for the AMWU.

PN64

THE COMMISSIONER: Alright, thank you. Yes, Mr Houlihan?

PN65

MR HOULIHAN: Again, Commissioner, on behalf of the employer I thank the Commission, particularly as presently constituted, very much for the speediness of its response to our application to have this matter re-listed. Commissioner, as you will recall quite clearly, we were before you for several hours on Friday and we had both hearings, conferences together and separate conferences with the Commission, in order to reach a position that satisfied both sides on Friday. The distillation of that consideration was then reduced by yourself to a recommendation. And I will just read it very briefly:

PN66

The Commission's had an opportunity to have conference with the parties collectively and privately. Arising from that conference...(reads)... commence discussions immediately on the outcomes that the employees are looking for to form the basis of an agreement.

PN67

Commissioner, we left here on Friday thinking that we had done a reasonable day's toil and that things were, would be, on foot towards a resolution. About two and a half hours, a bit less, after we left here, I got a phone call from Mr Eiffe to say that, to ask me in fact, what was my understanding of the recommendation, bearing in mind I said to him, I have not got it in writing in front of me, it has gone to my office, but I will tell you what I understand it to mean. And I took him through it, and he said yes, well that is pretty much what it says. And he said, that is not acceptable to us. Now, there was some banter, as you could imagine, about that. I pointed out that we had just spent, you know, two to three hours arriving at this point and that we had all accepted that recommendation and that we were going about to implement it. He assured me it was not going to be implemented and that it was unacceptable to the union.

PN68

Commissioner, we are in the position now where it should be reported that the crucifix has been withdrawn, removed, which is important to us. There is[sic] still unquestioned actions, a sign, out there. But in essence, everything is as it was with the significant difference that the crucifix is gone, but everything else is as it was on Friday. The effect of your recommendation, Commissioner, has been zero, is zero. Commissioner, we think that what we are looking at here is some sort of ego trip by Mr Eiffe about what is happening out there. This is a small company, this is a small company that employs six people that has been now, basically, out of business for a week and doing its business under severe duress for some considerable time more than that.

PN69

We spent a significant amount of time on Friday and we have spent a significant amount of time prior to Friday, trying to explain to our friend at the other end of the table that we simply cannot meet him. We cannot do what it is that he wants to do. We cannot do half of what he wants us to do, we cannot do a quarter of what he wants us to do, we cannot do anything of what he wants us to do. Because what he wants us to do, what he has insisted from day one, is that we enter into a 170LJ agreement, and we cannot do that. Now, Commissioner, I have to say on instructions that, as was put to the Commission on Friday, we are not going to compromise our conscience on the matter, that is not going to happen.

PN70

Now, if Mr Eiffe is going to stay where he is standing presently, the only alternative - and this is not a threat, Commissioner, honest to God it is not a threat, it is a statement that has to because put on the table today because it is very serious - if we cannot move from the position where we are, the company will close down. The company will close down because it has got no alternatives. It is losing significant sums of money, it will close down and the employees will lose their jobs, it is as stark as that. Now, what we want the Commission to do today, with great respect, is to exercise its powers under section 170MW to terminate a bargaining period. Commissioner, let me just quickly refresh your memory of it, and I will read the power, the particular provisions. Sub-section (1) says:

PN71

Subject to sub-section (8), the Commission may by orders, suspend or terminate the bargaining period if, after giving the negotiating it is satisfied that any of the circumstances set out in sub-sections (2) to (7) exists or existed.

PN72

The next provision simply relates to the Victorian ministry.

PN73

2. Circumstance for the purpose of sub-section (1) is that a negotiating party that before or during the bargaining period has organised, or taken, or is organising or taking industrial action to support or advance claims in respect of the proposed agreement.

PN74

And that is the circumstance we have.

PN75

(a) Did not generally try to reach an agreement with the other negotiating parties before organising or taking industrial action.

PN76

And I believe there are grounds for that ground, I believe there is evidence for that ground to exist, because the union has known from day one - maybe day two, give them the benefit of the doubt - that we cannot meet them on 170LJ. It is not,

PN77

(b) It is not genuinely trying to reach an agreement with the other negotiating parties,
(c) Has failed to comply with any directions.

PN78

And then:

PN79

(d) Has failed to comply with the recommendation of the Commission.

PN80

Now, we have got the plainest, clearest, most direct and obvious contravention of 170MW(1)(d), (2)(d) you could imagine, we have got a recommendation from yourself, strongly put, clearly put and very recently put. Within hours of that recommendation being made, it has been ignored.

PN81

THE COMMISSIONER: But, Mr Houlihan, the recommendation was not made under 111AA because that is a binding recommendation- - -

PN82

MR HOULIHAN: Yes.

PN83

THE COMMISSIONER: With the consent of the parties. It was made, the recommendation was made under the Commission's general powers under section
111.

PN84

MR HOULIHAN: Commissioner, it was also made with the consent of the parties, though.

PN85

THE COMMISSIONER: Well, I understood it was made with the consent of the parties.

PN86

MR HOULIHAN: That was absolutely our position on Friday.

PN87

THE COMMISSIONER: But it was not made, though - I have got to emphasise - it was not made under section 111AA.

PN88

MR HOULIHAN: I understand that, Commissioner, but it was made, it was clearly made with the consent of the parties. That was, that was absolutely the position that was reached here on Friday. I mean, we were extraordinarily relieved and pleased at that, at achieving that result, we were very grateful to
Mr Terzic and to yourself that we had got to that position. Now, Commissioner, we see no alternative before the company at this stage, other than the cancellation of the bargaining period, or the shutting of the business. Now, if there is a third alternative, we are not only prepared to hear it and see it and discuss it, we are anxious so to do. But as we stand here, Commissioner, we do not believe we have got many alternatives.

PN89

THE COMMISSIONER: Thank you, Mr Houlihan. Yes, Mr Terzic?

PN90

MR B TERZIC: Commissioner, the observation that you have made in relation to the operation of section I70MW sub section (2) paragraph (d), we say applies and has force. The recommendation issued by the Commissioner in relation not this matter last Friday, 4 March was not made with the Commission's powers under section 111AA enlivened. And, indeed, while I am loathe to reiterate or pass on what occurred in private conference, I can say that Mr Eiffe had told you, prior to the issuance of the recommendation, that the cessation of the protected industrial action would not stop until the company had put forward a set of proposals, which indicated a genuine attempt to meet the union's demands and the employee's demands on wages and conditions.

PN91

THE COMMISSIONER: Was the recommendation put to the members?

PN92

MR TERZIC: Yes, Commissioner. It was put on the day. And the view prevailing, is that if the protected industrial action was to stop and if work resumed this morning, the company's preparedness to meet the demands of the employees and their union, would diminish or evaporate substantially.

PN93

THE COMMISSIONER: When the recommendation was put, let us understand it very clearly, when the Commission had the private discussions, with the company individually and the union individually, it got the very clear impression that the union would take the recommendation back to its members and put it on the basis that it supported it. Now, what Mr Houlihan says, in that a conversation with
Mr Eiffe, that the union was not going to support it.

PN94

MR TERZIC: Commissioner, Mr Eiffe can speak for himself and he can be called on to give evidence in relation to exactly what he said and how he said it. But, nonetheless, what I can report to the Commission is that there are certain elements of the Commission's recommendation that the union did comply with in good faith and they are, firstly, allegations of crucifixes being established around the picket line, can no longer because sustained. Also, a sign that read something to the effect of, Locking out workers is an un-Christian act, has now been taken down. And on my instructions this morning, the sign now reads, Locking out workers is an uncharitable act. Commissioner, the latter formulation of that sign makes no reference to any religion whatsoever and there is[sic] no words, symbols or actions taking place in or around the picket line that in any way represents any impugning of any religion whatsoever, and, indeed, it is the general position of the AMWU that religious vilification, if apparent, should not occur.

PN95

THE COMMISSIONER: Can I ask why you made reference to the members, as I understand it, believing that if they were to return to work this morning, then their ability, if you like, or their position in regard to reaching an agreement with the employer would be severely diminished?

PN96

MR TERZIC: Yes.

PN97

THE COMMISSIONER: Why do they come to that conclusion when the Commission, as part of its recommendation, insisted that there be at least three negotiating sessions and that if the parties got stuck, the Commission would make itself available to assist the parties in those negotiations. Why do they believe that their position would be diminished, given the frame work in which the recommendation was put?

PN98

MR TERZIC: Commissioner, it is a perception of momentum.

PN99

THE COMMISSIONER: There is no momentum. No one is going anywhere, that is the difficulty. I mean, I could understand if you thought you were making some progress, but things have come to a dead stop.

PN100

MR TERZIC: Momentum can now be, well, momentum in relation not having the employees maintain a picket line, the establishment of a caravan and the other facilities that enable a picket line to be manned overnight, throughout the day, with some degree of amenity by the workers. But also, when a set of proposals are forthcoming from the company that indicate a preparedness to meet the demands, in some substantive form are forthcoming, then the unions- - -

PN101

THE COMMISSIONER: Demands to what though? My understanding is that the company has the union log of claims, are you saying that a response to that log of claims has to be forthcoming?

PN102

MR TERZIC: Yes. Something that shows that the company is now seriously meeting the union's demands, in a way that would set a set of terms and conditions that indicates, if not the basis for a complete agreement, but progress towards a complete agreement. And as for the contention that there cannot be any negotiations with Mr Eiffe present, well, the simple answer to that is that both sets of parties who will be bound by any agreement or arrangement, namely management of the company and employees of the company, can be represented by their respective representatives, namely Mr Eiffe and Mr Houlihan. If this matter was adjourned into private conference, and those two parties were to meet and there was a serious and genuine propounded exchange on the terms to be reduced into an agreement, then it is my submission that it is every chance that forthcoming from Mr Eiffe would be a recommendation that the industrial action cease this morning.

PN103

It is a matter of bona fides on both sides. And as part of the process of showing our willingness to compromise, there has now been a suggestion by the union as to how the insurmountable problems of having the arrangements to apply being reduced to agreement can be met. There is also then, a complete withdrawal of anything that might be offensive to the beliefs of the management of the company. That indicates, in our submission, Commissioner, a genuine attempt to move towards a settlement. And I have also been instructed by Mr Whyte, who was manning the picket line over the weekend, that other actions complained of by the union, namely persons associated with the company, driving cars in a dangerous manner nearby the picket line, did not desist on the weekend. So, to the extent that there was any degree of action by the company to so antagonise the union, that has continued to occur since the issuing of the recommendation last Friday.

PN104

THE COMMISSIONER: Do we know who the person or people are, that drove the vehicles?

PN105

MR HOULIHAN: Some of the people.

PN106

MR TERZIC: I think witness evidence can go some way to identifying the persons and also giving evidence as to their association with the management of the company. I can call that evidence now.

PN107

MR HOULIHAN: Put him in the box.

PN108

MR TERZIC: I call the evidence. I call to the witness box Mr Gary Whyte.

<GARY FRANCIS WHYTE, AFFIRMED [8.30AM]
<EXAMINATION-IN-CHIEF BY MR TERZIC

PN109

MR TERZIC: Again, so it is recorded on transcript, can you give your full name and residential address?---Gary Francis Whyte, 6 Grazier Court, Werribee Victoria.

PN110

Thank you, Mr Whyte. Mr Whyte, where are you employed?---Civiquip Industries.

PN111

Where is that located?---1 to 5 Lantini Street, Hoppers Crossing.

PN112

And what is your occupation?---I am classed as a TA, tradesman's assistant.

PN113

How long have you been employed?---Nearly four years.

PN114

Could you just give a brief outline of your duties at the company?---I make temporary pavement markers so when they're resurfacing roads.

PN115

Now, Mr Whyte, it is the case that there are currently negotiations for an agreement at the company, isn't there?---Yes.

PN116

Are you being assisted in those negotiations by any person or organisation?---No. We want the union to represent us.

PN117

Which union is that?---The AMWU.

PN118

And with the AMWU, who has been the person you have been dealing with in the main part?---Ferdal Eiffe.

PN119

And could you now just give to the Commissioner a brief description of events leading up to last Friday, 4 March 2005?---Well, we were given the AWA on the day that we broke up last year. We were told to have a look at it over Christmas, bring it back then we wouldn't have a problem with it. I personally didn't look at it until after the Christmas break, but before I went back to work. I tried getting advice from some of the organisations that are listed on the front of that AWA and found them to be absolutely no help at all, which I have told Neville over there and Alan Young and also Craig.

PN120

What org, which organisations?---I tried Wagenet, I tried the Office of Employment Advocate, I even tried another one that was listed, Job Watch and found the number that I was given for that to be disconnected. So after having no luck at those places, we were given the number of the union office and we contacted the union for some information.

**** GARY FRANCIS WHYTE XN MR TERZIC
PN121

Were you a member of the union at that point?---No.

PN122

What happened after you contacted the union office?---We organised a meeting with the employees of Civiquip.

PN123

About what date was this?---This was probably about 10 January. No, sorry, it could have been a couple of days after. Around about the 12th or something, of January. And we all met at my place after hours. So, it had nothing to do with work. And Mr Eiffe attended and another union representative, I can't remember his surname, sorry. And they gave us advice. We showed them. And we came to the agreement that we weren't going to sign the AWA. We wanted to join the union and get them to represent us in negotiations. When we continued on, we were getting pressure from Craig Hornsey, who is sitting behind you, saying look, you have to sign them, we have paid a lot of money for these AWAs, constantly putting pressure on us. In the end we just said no, enough's enough. When
Mr Eiffe first contacted our employer, we had a meeting that afternoon with another partner who is not here today, Alan Young, and they read out about all their beliefs and that, and told us that there's no way we could deal with the unions. And the threat was made as early as then, that either we sign the AWA and forget about the unions or they shut the doors. A couple of the employees changed their mind, signed the AWAs and withdrew from the union. But four out of the six of us stayed resolute. And to this day, we are not changing our attitude. And we have also had ongoing meetings with both Neville and Alan Young. We have also had phone calls from Mr Young that haven't been very productive and accusations have been flying. But all that has been reported to Civiquip management. And that led us to issuing the protected action, where we said that from a specific day, unless their attitude changed we would not load or unload vehicles, there'd be rolling stoppages and overtime bans. We got a notice the next day saying that we were going to be locked out as of last Wednesday. We went into work, we were allowed to start, just after 12 o'clock a truck came in to be unloaded, we refused to unload it, so we were sent home and told that we would not be allowed back in the premises until such time that Civiquip management allow us to. We said alright. We were told that there'd be no pay coming our way. We said alright. We again tried to enter the premises Thursday morning. We were sent straight to the conference room where we were issued with photocopies of letters that had been sent out to our houses saying that we are locked out until further notice. And that is where we are out at the moment.

PN124

So after you were locked out, what did you do then?---We contacted Mr Eiffe, we went back to the union office, we spoke about what was going on and then we went back and spoke to the boys. Basically that was it. And the boys have voted unanimously we are not going to negotiate individually with the company. We want the union to represent us in negotiations.

**** GARY FRANCIS WHYTE XN MR TERZIC
PN125

I want to ask you some questions about a picket line, or protest?---Protest line, yes.

PN126

Protest line. Can you just tell the Commission how that protest came about and what occurred up until Friday, 4 March?---How that protest came about being locked out? On Thursday there was a caravan arrived late in the afternoon but our employees were there all day. And Thursday night, we manned it overnight. The company employed a couple of security guards. There was those drive by's on Thursday night as well, even to the point where the company security guards that were employed were getting very annoyed at what was going on.

PN127

I am going to ask you some questions about the drive by's on Thursday night?
---Yes.

PN128

Can you recall the types of cars involved? Make, model, colour, et cetera?
---There was a white Ford sedan, there was a Commodore station wagon that is owned by an employer of Contour, Jeremy. I am not sure of his last name. The company receptionist, Emily Williams, was in another car that drove past several times.

PN129

Did you see her?---No, but another employee did and he's worked there for nearly
13 years, so I think he'd know who she was.

PN130

Who was it?---Gabriel Lucifero.

PN131

And he told you?---And he told me it was Emily Williams. And then we reported, there were a lot of other vehicles.

PN132

Did you personally see vehicles drive past?---Yes.

PN133

Can you recall the makes and models of the vehicles?---Mainly Commodores and Fords. Sedans. There were one or two little Toyotas. There was a white van, I am not sure what make it is, but it's half white, half blue.

PN134

Are these vehicles that you personally witnessed drive past?---Yes.

PN135

THE COMMISSIONER: Can I just, is this a street or is it a court?---It's a street. It's a public road. But it's an industrial area that all the factories were closed and they were actually swerving towards our portaloo and towards the caravan and a few comments like, Get a life, and things were yelled out to us.

**** GARY FRANCIS WHYTE XN MR TERZIC
PN136

MR TERZIC: Other than the company receptionist, were any other people identified that could be associated with Civiquip?---On Friday night there was.

PN137

Who?---Craig Hornsey's youngest brother was in the back of one of the cars.

PN138

What car was that?---That was a white Ford. A list of registration numbers and that was handed to Fergy on Saturday morning. And I think it was a white Ford sedan, TAX was the first part of the rego number, but it was written down by a fellow worker.

PN139

Could you describe the manner in which it drove past?---It came down the bottom end of Lantini Street, the new opened up area. Then when it got to us, it slowed down. We had a gentleman walking across the road, it braked right in front of them, nearly forcing him to walk into it. And then when he was behind it, the guy gave the car a rev and made a motion like he was going to put it in reverse. Then it drove up to just past us where Civiquip's on the corner, the corner of Graham Court and Lantini Street. And there was another car coming down Graham Court, and that white Ford did a u-turn and cut that car off, came back past the caravan then pulled up the driveway and spoke to the security guard that was on duty. And that's when we realised that it was Michael Hornsey in the back.

PN140

And you personally witnessed this?---Yes.

PN141

Could you give an indication of the estimate of the speeds the car was driving
at?---They would have been driving at the normal 50 km when they were down the other end. But they, their speed varied as they got closer to the caravan and the workers.

PN142

Faster or slower?---Both. One minute they'd slow down, then they'd accelerate, then they'd slowed down. And they'd swerve from one side of the road to the other.

PN143

The road is otherwise busy or not busy?---Not over night time, it's not busy. They have a mail distribution centre across the road, but that picks up at about 2 o'clock in the morning.

PN144

Absent the cars that you have identified- - - ?---Yes.

PN145

On average, how many cars would pass every minute?---During the day or over night time?

**** GARY FRANCIS WHYTE XN MR TERZIC
PN146

At night time?---At night time it's a bit hard to tell because I am not there. But on the nights I was there, we probably wouldn't get another car. You might get one every half hour.

PN147

And this incident with the Ford and Mr Hornsey, can you give evidence as to any other incidents that occurred either Friday, Saturday or Sunday nights?---Well, Saturday and Sunday nights we weren't there so I can't give evidence to them. We also told
Mr Houlihan on Friday about several incidents that happened on Thursday, but I can't actually recollect right now. I think Mr Houlihan will admit that.

PN148

So on Friday night, you have given evidence as to a car being driven or having as a passenger - was it driven by Mr Hornsey?---No, he was in the back seat on the passenger side.

PN149

Can you, do you know who the driver was?---It was just another young guy. I don't know who he was.

PN150

When you say young guy, can you describe him?---Late teens, maybe earlier 20s, blond sandy coloured hair. That's about all I can tell you.

PN151

How many persons were in the car?---In that actual car I think there was three, possibly four. Two definitely got out when they started speaking to the security guards, but Craig Hornsey will be able to tell you better because Craig and his older brother arrived just a short time later and then not long after they arrived, Michael took off with the other guys. And Craig and his oldest brother stayed with the security guard for one to two hours.

PN152

You have given evidence as to a Ford car driven by Mr, with Mr Hornsey as a passenger- - - ?---As a passenger.

PN153

Driven by a young man- - - ?---Young male.

PN154

With blond sandy hair?---Yes.

PN155

Can you give evidence as to whether there were any other cars driving past in a manner that made you uncomfortable?---As I said, there was an employer of Contour. I am not sure of his surname, even though I have known him basically since I started at Civiquip because they share the same factory.

**** GARY FRANCIS WHYTE XN MR TERZIC
PN156

THE COMMISSIONER: Who's Contour?---That's a company that's run separately to Civiquip. They do office furniture and that type of equipment.

PN157

Okay.

PN158

MR TERZIC: Do you know whether that company is related to Civiquip?---The owner of that company is the brother of the former full owner of Civiquip who is now just a part owner, Mr Alan Young.

PN159

Do they have a religious connection?---Yes. They're members of the brethren.

PN160

And could you give more evidence about the car driven by the person associated with Contour?---He drove past on Thursday night as well, several times. I can't give you the exact number.

PN161

And did you see this?---I saw it. And again on Friday night. He didn't drive past as many times on Friday night, but he did still drive past. At one incident, he drove past. I think he has his, someone said it was his wife, but I have never seen his wife so I can not swear that it was her.

PN162

What sort of vehicle was it again?---That was a Commodore station wagon.

PN163

Can you remember the colour?---I think it was a silvery colour. A VT Commodore.

PN164

And can you just try to give an approximation of the times these two vehicles drove past?---I think Michael arrived there, it would have been about between 9.30 and 10 o'clock. And Jeremy, as I said, he drove past earlier, around about
9 o'clock and then again later. I couldn't, I am not sure if the times were actually written down because another gentleman who works for Civiquip was actually writing down the registration numbers. I am not sure if he wrote down the times.

PN165

And on Friday night, when did they drive by's, as you refer to them, cease?
---Probably about 1 o'clock. Approximately. On the Thursday night, they continued until about
3am.

PN166

THE COMMISSIONER: Can I just, when you say the drive bys, at any time did any of your colleagues feel threatened or in danger?---When they started to swerve towards the caravan and the portaloo, we were a bit on edge.

**** GARY FRANCIS WHYTE XN MR TERZIC
PN167

Okay. Can that be identified with, did only one vehicle do that?---No. No. On the Thursday night, there were probably half a dozen vehicles that did it.

PN168

Right. Can any of those vehicles, or any of the people in those vehicles be identified as being associated with Civiquip?---Not so on Thursday night, that I can remember, but on Friday night. I gave one specific example with Michael Hornsey in the back.

PN169

And did they swerve towards the caravan and the portaloo?---When they did that u-turn and cut that other car off, they came back around and then swerved over towards the portaloo and then went back out towards the centre and turned left up the drive. That's when they spoke to the security guard.

PN170

MR TERZIC: So on Friday night, can you give more evidence as to further drive by incidents?---As I said, there was a blue and white van. I can't remember what make it was. I think it was driven by a Scott Hornsey, I am not 100 per cent sure on that though.

PN171

Did you witness that personally?---I did see Scott there, but I can't actually remember if it was Friday or Thursday night. And I know Scott personally because in the past he has done some work at Civiquip.

PN172

THE COMMISSIONER: And he was in the van?---He was driving it.

PN173

Driving it?---Yes.

PN174

MR TERZIC: And with the picket- - -

PN175

MR HOULIHAN: Hang on, just excuse me. You said a minute ago that you think Scott Hornsey was there?---No.

PN176

No, hang on. You said there was a blue and white van?---Yes.

PN177

And you think Scott Hornsey was there.

PN178

THE COMMISSIONER: Mr Houlihan, this is pretty unorthodox. Normally with- - -

PN179

MR HOULIHAN: No, but because of the- - -

**** GARY FRANCIS WHYTE XN MR TERZIC
PN180

THE COMMISSIONER: No. I have the examination in chief to conclude and then you have your right to cross examination. Now, it is unorthodox to stand up and interject during an examination in chief, unless you have got a point.

PN181

MR HOULIHAN: I understand that, sir, but it goes to the fact - and I would not have done it other than that you ask the witness a question to which he gave you a very positive, affirmative answer which, in my opinion, was quite at odds with what he'd said previously. He was very positive in his statement in response to you that Scott Hornsey was driving the van. Now, prior to that, in my opinion, he was fairly vague as to whether Scott was there or not. That was why I interrupted?---I can't actually remember what night I saw him driving, but I did see him on one of the nights that I was there.

PN182

THE COMMISSIONER: Yes, Mr Terzic.

PN183

MR TERZIC: You were at the picket line on Friday night?---Yes.

PN184

Until what time?---I left at approximately 8.30 Saturday morning.

PN185

And who was at the picket line, or the protest line, at that time when you left?
---There was just Ferdal Eiffe when I left.

PN186

Alone?---Alone.

PN187

And then did, have you returned to the protest since then?---Not as yet.

PN188

So you have not. Have you been near the company's premises?---No way.

PN189

And you, do you have any knowledge of what occurred over the weekend?---I have none at all.

PN190

Alright. That will conclude evidence on this matter.

PN191

THE COMMISSIONER: Thanks Mr Terzic. Yes, Mr Houlihan?

<CROSS-EXAMINATION BY MR HOULIHAN [8.49AM]

PN192

MR HOULIHAN: Is this the first time you have been involved in a picket?
---Yes.

**** GARY FRANCIS WHYTE XXN MR HOULIHAN
PN193

So Thursday night was your first experience of being on a picket line?---Yes.

PN194

And you said to me, in company with Mr Eiffe on Friday, as you said, that there were people, I think you said hooning, or maybe Mr Eiffe said- - - ?---I don't, I actually said driving erratically.

PN195

Erratically in that way. You put that to me on Friday. You put that to me on Friday, didn't you?---Yes, I did.

PN196

And when you put it to me, I said to you look, I will take that to my people and see what they have got to say about it?---Yes. Because I also told you the name of the security company that was there on Thursday night and their guards were getting very annoyed.

PN197

And was that the same security company was there on Friday night?---No. We don't know what the security company was there on Friday night because the guard would not show any identification.

PN198

Now, let's just go back. I came back to you, didn't I, on Friday and said to you that the people from Civiquip just reject that. Didn't I? Rejected that what you had put about the driving?---No, you didn't come back and tell me that.

PN199

Well, I told part of it, some of your party that. Would you accept that?---No, I didn't hear that at all.

PN200

All right. Okay. Let's go to Friday night, because what you have said about Friday night with some clarity, is that there was an employee from Contour, you saw an employee from Contour?---Yes.

PN201

You saw a Michael Hornsey?---Yes.

PN202

As a passenger in a car?---Yes.

PN203

And you said between, you said that car was driven by a blond- - -

PN204

THE COMMISSIONER: Sandy hair.

PN205

MR HOULIHAN: Sandy colourer haired bloke. A young fellow?---Young fellow, yes. If I remember right, there was actually a female in the front passenger seat and Michael was sitting behind her.

**** GARY FRANCIS WHYTE XXN MR HOULIHAN
PN206

And there frequently are, aren't there, in young fellow's cars on a Friday night?
---Well, it's been a long time since I have been young, but I will take your word for it.

PN207

It's been longer since I was young, believe me.

PN208

MR TERZIC: I haven't experienced it for many years, I can tell you.

PN209

MR HOULIHAN: Even with a bow tie he hasn't experienced it.

PN210

MR TERZIC: No, that's right.

PN211

MR HOULIHAN: The, but you are sitting here, under oath, swearing, affirming, that between 9.30 and 10 o'clock on Friday night, you can see the colour of this bloke's hair?---Well, they were standing under the flood light talking to the security guard.

PN212

Well, that makes a very good reason why you can see it. I want to know what happened when Craig Hornsey turned up?---Craig Hornsey pulled up with his brother. If I remember right, David was driving.

PN213

How many Hornsey's are there?---Well, I know the three younger ones. But I am led to believe in that family there is eight children.

PN214

And when Craig Hornsey, who is in court- - - ?---Yes.

PN215

- - - turned up, your evidence was that that was the end of any nonsense?---No, that's not - I said, just after Craig and David turned up, Michael left.

PN216

Yes?---There were still drive by's going later on.

PN217

But hang on, sir. This Lantini Street, Lantini Street is a public road, isn't it?
---Yes.

PN218

You are entitled to drive on it?---Yes.

PN219

I am?---I don't know, you are from New South Wales though.

PN220

That's right, that's right. And we like to come down here where the roads are wide. But I am allowed to drive on it. Anyone's allowed to drive on it, aren't they?---Yes.

**** GARY FRANCIS WHYTE XXN MR HOULIHAN
PN221

Now, you have said that this is your first picket ever?---Yes. I would like you to show evidence showing that I am lying.

PN222

I have got no intention of trying to show that you are lying. I believe you. I believe you, that this is your first picket. Are you aware that pickets tend to attract attention?---Yes, I do.

PN223

Is that, or isn't that, a fundamental part of why you set a picket up?---I can understand what you're saying if we were on a major road. A lot more people would drive past and see it. But we are out of the way in Hoppers Crossing. 90 per cent of the people who even live in Werribee and that, don't even know where Lantini Street, never heard of it.

PN224

THE COMMISSIONER: It would be fair to say, though, that a picket line or a protest line, whatever you want to call it, a caravan and a portaloo, it doesn't matter where it is, it can be down the back end of the mulga, somewhere. And the word spreads reasonably quickly, particularly amongst teenagers, that there is a picket or a protest line and will go by and hoon them up, given in a few words. That has been going on for 20, 30, 40 years, that type of thing. Except today they go faster than in the cars they use to go in 30 or 40 years ago. But it's not uncommon for that to occur. The reason why I asked you earlier about vehicles that could be identified with Civiquip or individuals in the vehicles, because I would have to say to you that based on my experience, 80 or 90 per cent of the vehicles that would go past and maybe want to rev up a picket line or a protest line have absolutely nothing to do with the company involved. They are just quite often kids out to have a good time and stir up people who are standing by a 44 gallon drum with a flame going and a caravan and a portaloo?---I honestly think that's why on Friday night some of the registration numbers were taken down. So that if people wanted to, they could look into who actually owned the vehicles.

PN225

Yes?---And see if there was a connection or not.

PN226

MR HOULIHAN: Are you aware that this area in Hoppers Crossing has been used from time to time as a drag street?---Yes.

PN227

So you are quite aware that, as the Commissioner has just sort of put to you, there is a bit of, you know, it is an activity?---Using it as a drag street was different activity to what had been going on Thursday and Friday evening. And I can give you a specific incidence on Thursday where it was being used for burnouts and Craig Hornsey was talking to the security guards at the time. And there's a new little court, you know the one I am talking about, Craig, where the road about is?

**** GARY FRANCIS WHYTE XXN MR HOULIHAN
PN228

MR C HORNSEY: What night?

PN229

MR G WHYTE: That was Thursday night when the two guards from- - -

PN230

MR HORNSEY: I didn't see it. I was over the road at SDA.

PN231

MR WHYTE: Well, it must have been David. Sorry.

PN232

MR HOULIHAN: Hang on, let's stop it. So the essence of the contract is, you are familiar that it is used that way?---Yes.

PN233

I want to take you to a meeting that you were part of on 28 February. Do you remember that? A meeting between David Johns, Gary Whyte and Gabriel Lucifero?---Lucifero, not Ferio.

PN234

Lucifero, I am sorry. Ero is it?---Yes.

PN235

Okay. Where you had a discussion with the company about the industrial issues. Do you recall that?---I think that was about Thursday, am I correct?

PN236

No, it would have been the week before that. But, and there was another discussion. There was another meeting last week as well. Are you familiar with that?---We have had several meetings.

PN237

That is right, that is right. So I just want to sort of get it clear that there have been several meetings at which the company has put to you (a) it can not negotiate with the union, is that right?---They say it can't. I think it's won't.

PN238

Okay. But they are saying that they can not negotiate with the union. And in those discussions, there have been, apart from your demand with the union to represent you, there have been two other issues raised. There has been rostered days off?---Yes.

PN239

And there has been redundancy?---Yes. There have been other issues raised as well, but- - -

PN240

What other issues?---Queries about overtime rates, what is the specific time. In the AWA, they are trying to say four hours.

**** GARY FRANCIS WHYTE XXN MR HOULIHAN
PN241

Yes, but look- - - ?---There have also been issues about safety at the company.

PN242

Okay, can I come back to this? My instructions from my client are that the two negotiable, if you like, issues that have been raised by you guys, were severance, redundancy and RDOs?---Yes. Secondly to the union.

PN243

Look, I am not disputing that. I am not trying to, you know. I am not trying to fox you or outsmart you or something. I have said negotiable issues. Because as far as the company is concerned, that is not negotiable, right?---Alright.

PN244

Now, is it true that the company has put to you, in relation to RDOs, that they would make the changes necessary to meet what you want on RDOs?---They said they'd look at it.

PN245

Yes. And did they put to you about redundancy that they would do the same?
---No. Because the main thing about the redundancy that we brought up was the fact that we thought the one in the AWA was insufficient. And we actually questioned Neville about that and Neville said he contacted, I think, Peter of your company and he came back and said no, they are the right figures.

PN246

Yes. They are the Full Bench decision of last year?---And I am pretty sure that was about the only time that redundancy has come up. I could be wrong.

PN247

So, look, you know. What we have got here, what we have got here, is what we have got here a situation where apart from your demand, you represented by the union, apart from that, do you believe you can negotiate an agreement with the company?---Me solely?---

PN248

No, no. Your fellows, the group. Aided and advised by the union?---I think we could definitely give it a try. Because I think if you ask Neville or Alan Young, Craig hasn't attended many of the meetings. But we very rarely had a meeting where everybody has actually been there for one reason or another on that day. It has been splintered groups here and there.

PN249

Now you, see, where we are with this, where we are with this dispute, is that it would be my expectation, given that I have had a bit of experience in this game, that you blokes would be able to make a satisfactory agreement with the company, with advice and assistance from the union, but you having to do it. But, you are digging in, you are digging in on an issue of principal that you want the union to represent you?---Is there, is there something wrong with having principals?

**** GARY FRANCIS WHYTE XXN MR HOULIHAN
PN250

Nothing at all wrong with having principles. Nothing at all wrong with having principles?---Because if there is, well, I'll commit, I am guilty of that.

PN251

Okay. That's fine. We are not suggesting that.

PN252

THE COMMISSIONER: I hope you don't expect to be taken out to the forecourt and hung?---Well- - -

PN253

MR HOULIHAN: Flogged first, flogged first. The, but you see, the problem is that my client cannot concede what you want. You were in the court on Friday?
---Yes, I was.

PN254

You heard what Mr John said?---Yes.

PN255

You have heard that before?---Yes.

PN256

You choose not to believe that?---I personally do.

PN257

Now, but the problem is, that is what we are operating from. That is where we are coming from. See, I can not negotiate with you or with Mr Eiffe on behalf of the company.

PN258

MR TERZIC: Commissioner, this is not really an examination of a witness. It is more of a lecture or harangue the witness.

PN259

THE COMMISSIONER: Well, I think you are right, Mr Terzic.

PN260

MR HOULIHAN: Look, I have got no further question.

PN261

THE COMMISSIONER: No. Thanks, Mr Houlihan. Mr, sorry, I forgot your
name?---Mr Gary, Gary Whyte.

PN262

Sorry, Mr Whyte. Can I ask you this? If you, if the parties reached an agreement on the clarification of the penalty rates for over time- - -?---Yes.

PN263

If you reached an agreement on the issue on redundancy and if you reached an agreement on the issue of the RDOs and any other outstanding matter, there might be one or two, I am not sure. But the parties' position remains fixed. That the company says that we can not negotiate with the union, nor recognise that the union directly in discussions with them can represent you. They are happy for you to be a member of the union- - -?---Well, that's not a whole lot of good.

**** GARY FRANCIS WHYTE XXN MR HOULIHAN
PN264

Just let me finish. Don't interrupt me?---Sorry.

PN265

They are happy for the union to represent you, but they can not communicate directly with the union. And you say well, we want the union to represent us. If we discussed all the issues, other issues, and came to a conclusion on those but could not come to a conclusion on that, would the picket line still remain in place, or the protest line still remain in place, or would you say well, we have reached a satisfactory conclusion on the employment conditions, we still agree to disagree on the representative issue?---Well, I can't speak for the other guys. But I couldn't see it happening because, I am sorry if I interrupted you, but I have been told previously by a gentleman that was here on Friday, but he's not here today, that we can not be in the union while we are employed at Civiquip. And he has even offered to reimburse me membership fees.

PN266

Well, firstly you can be a member of the union because for an employer to say you work here and you must be a member of the union, or you must not be a member of the union, is against the act?---Well, it was Alan Young who told me that we can not have members of the union employed here.

PN267

Well, Mr Young is wrong. Under law, Mr Young is wrong. You are entitled to be a member of the union. As equally, you are entitled not to be a member of the union. Simple as that. So if we reached an understanding on the employment conditions, would that form the basis of an agreement to remove the protest line?
---I think it would go part of the way. I don't know if it would be enough with the other boys, because I am only one.

PN268

But you appear to be the major spokesperson. But even if we reached an agreement on the employment conditions, but we could not reach an agreement on the representation issue, are we wasting our time?---I honestly don't know, and you want me to be honest with you.

PN269

Yes, sure. Well, you are under oath, yes, or you have taken affirmation. Okay, thanks, you can step down.

<THE WITNESS WITHDREW [9.07AM]

PN270

THE COMMISSIONER: Mr Terzic, sorry Mr Whyte. Mr Terzic, what is the position? If the position, if we reached an agreement the employment conditions, but we still agree to disagree on the direct representation, if you like, on behalf of the union directly with the company, we could not reach an agreement on that, do we have a basis in which to get people back to work, or what?

PN271

MR TERZIC: Yes, Commissioner. The approach that was set out to the Commissioner, Mr Houlihan, last Friday the 4th, still stands. And that is that there could be an instrument other than a certified agreement.

PN272

THE COMMISSIONER: Mmm.

PN273

MR TERZIC: An AWA, or a collective industrial agreement that is unregistered or uncertified, that could - or common law agreement, if I may - that could lawfully and enforceable set down the terms and conditions of employment of the employees.

PN274

THE COMMISSIONER: No, no. I appreciate that, and it's a question of identifying the right instrument.

PN275

MR TERZIC: Yes.

PN276

THE COMMISSIONER: The issue is, if that instrument does not, if that instrument does not include a provision that there is direct representation on behalf of the employees by the union directly to the company, if that is not included in any instrument, does that stop the industrial dispute, or does it keep going until such time as there is direct representation?

PN277

MR TERZIC: Commissioner, in answer to your question, the AMWU will meet the company's lawfully appointed agent or representative on all negotiations and other matters that concern the employment of it's members. So it may embellish that answer, Commissioner. It simply means that just as the employees have a representative of their choice, the company may appoint a representative to carry out their dealings in the same way Mr Houlihan has appeared in this Commission on behalf of the company, has conducted negotiations with the company and
Mr Houlihan's firm has dealt with the union hitherto. That arrangement can continue into the future. And that will provide a way in which the company can enter into some form of arrangement governing the terms and conditions of its employees that is acceptable to the union, acceptable to the four union members employed by the company. And we should say, without trying to think for the company, it should be acceptable to the company based on previous practice and events.

PN278

MR HOULIHAN: Commissioner, can I- - -

PN279

THE COMMISSIONER: Thank you. Mr Houlihan.

PN280

MR HOULIHAN: I am sorry. I can see what you are trying to do, and I empathise strongly with what you are trying to do. The problem is this. I have very clear instructions, and my firm has very clear instructions and this is not just a matter of Civiquip. This is a matter of our dealings with the brethren generally. That it is not a case of us representing the company or the brethren in negotiations with the union. That is simply a subterfuge as far as a conscientious position of the brethren and this company is concerned. It will not, it will not either directly or indirectly recognise not just the union but any other organisation. And if, you see, the position we got to on Friday, I thought, we all understood that. But clearly we do not.

PN281

THE COMMISSIONER: Can I, Mr Terzic, what are the outstanding issues you believe need to be discussed between the company and its employees?

PN282

MR TERZIC: I will just take instructions for a moment, Commissioner.

PN283

THE COMMISSIONER: Sure.

PN284

MR TERZIC: Commissioner, the substance of an instrument that should apply in the union's demands are, firstly, income protection.

PN285

THE COMMISSIONER: Mmm.

PN286

MR TERZIC: A pay rise, or series of pay rises over, which would average out over three years of around 13 per cent, which just as an off the hand observation, is relatively modest.

PN287

UNIDENTIFIED SPEAKER: Extraordinary, so, yes.

PN288

MR TERZIC: Protection of the employees' accrued entitlements. The hours of work issue concerning RDOs which has already been given in evidence by
Mr Whyte. And severance pay. Commissioner, that is hardly an exorbitant or extravagant list of demands from the union. If I may make that submission.

PN289

THE COMMISSIONER: Thank you. Mr Houlihan, or Mr Johns, sorry. Has the company formulated a response at all to some of those issues?

PN290

MR JOHNS: Well, I have not, Commissioner. I have not had to do with any of the negotiations between the employers and the employees.

PN291

THE COMMISSIONER: Okay. So, but, has the company, do you, sorry. It might have been directed, sorry, Mr John.

PN292

MR JOHNS: Thank you.

PN293

MR HOULIHAN: Commissioner, yes. As I am advised, there has been discussion about the RDOs, there has been discussion about the severance pay, I was not aware of the issue that Mr Whyte raised earlier about the overtime, about how it is calculated or whatever.

PN294

THE COMMISSIONER: Right.

PN295

MR HOULIHAN: But, as I understand it, there is no difficulty in dealing with that. But in terms of the rates of pay, again as I am advised, there did not seem to be a big issue about that and I have not heard anything about the income protection at all. Now, I have got to say, what I recall of seeing of the log of claims, Commissioner, is it would have a hell of a lot of trouble with the Electrolux, getting through the Electrolux door. But the, as I am advised, on the industrial issues that have been before, between the employees and the employer, there does not seem to be any insurmountable issues on those, in those areas.

PN296

THE COMMISSIONER: Well, given that the parties are all here, can I make a suggestion that Civiquip formulate a response to those points that have been identified by the union. That my associate will make a room available, say at 11.30, where Mr Whyte - and it may be a requirement that he bring another employee in - Mr Whyte meet directly with management of Civiquip. That
Mr Houlihan and Mr Eiffe make themselves available, not in that meeting, but outside that meeting to confer, Mr Houlihan with the company and Mr Eiffe with Mr Whyte, on a as needs basis. The Commission will come back at 11.30 to see what progress has been made and, if need be, it will act as an intermediary between the parties. So, what you will have is a room where the company will meet directly with its employees.

PN297

Mr Houlihan and Mr Eiffe will be outside of that room and will be available for consultation by their respective parties. They will, yourself, Mr Houlihan and
Mr Eiffe will not be directly involved in the negotiations, per say. It will be directly between the company, Mr Whyte and maybe some other employee there to support Mr Whyte. Any time Mr Whyte may want to consult with you, and he can come out of the room and do that. Or the company may wish to consult
Mr Houlihan and they can come out of the room and do that if they want. And I will come back at 11.30 and see what progress has been made. And I put that forward in order to try and move this matter forward because at the moment, we are at a stalemate and my experience, and I am sure that of Mr Eiffe and
Mr Houlihan, is that when you have very small companies with six employees, or twelve employees, the longer things go on the more, the harder it becomes to build up a relationship again. Because things do become somewhat fossilised in terms of the progress. Is that reasonable?

PN298

MR HOULIHAN: Commissioner, can I just, that is fine as far as I am concerned. That is fine as far as the company's concerned. That has always been our position. That is basically what we thought we had on Friday. Commissioner, before we commit to it, I want to know whether or not the union is going to commit to it and whether that process is going to allow this picket line to be got out of the way.

PN299

MR TERZIC: Leaving aside the picket line issue just for the moment. I have conferred briefly with Mr Eiffe, we will accept that arrangement but in doing so, we wish to make it perfectly clear that this is highly unusual for the AMWU to take, to step aside and it is only in this particular instance that we will agree to it, given the company's principles seriously propounded religious objections to dealing with the union and we will accept that recommendation on this occasion and this occasion only in the prevailing circumstances.

PN300

THE COMMISSIONER: Well, Mr Terzic, let me make it very clear to you that the Commission as currently constituted has never put a proposal like that before. And it does not intend to do so again. And it is only because of the religious beliefs of the brethren, that it is putting it this time.

PN301

MR TERZIC: We appreciate that, and we are accepting it, this time, for those reasons.

PN302

THE COMMISSIONER: Yes.

PN303

MR HOULIHAN: Commissioner, can I just get some clarification on that? When we are saying this time, are we talking about the issue of Civiquip or are we talking about these discussions today? What are we talking about?

PN304

THE COMMISSIONER: No.

PN305

MR HOULIHAN: I know what you are talking about, sir. I want to know what they are talking about, with great respect.

PN306

MR TERZIC: Well, we will see how things transpire at 11.30 today. We will give an answer as to how we will expect to deal with things beyond 11.30. But, maybe I am going out on a limb here, I would say this, that if things do move ahead well, and there is progress and we can see that progress, we would be far more amenable to accepting these arrangements into the future for this company, and this company only.

PN307

THE COMMISSIONER: Well, let me make it clear from where the Commission sits. It is not just this morning. It is, the difficulty is the, it goes beyond this morning, right? It goes to the relationship into the future. And it is only because of the very strong religious beliefs of the brethren that the Commission is only putting it in regards to that relationship between the brethren and its employees to take it into the future. The Commission would say to you, and to the parties, is that it is not a position that it would put to any other party that came before the Commission, it is only because of the religious beliefs of the brethren. So it goes beyond today.

PN308

The second thing is, if the Commission comes back at 11.30 and believes that progress has been made, or is being made, then it would expect given that the discussions are under the imprimatur of the Commission, that the picket line be removed. Now, if progress is being made and the picket line is not removed, then it does go to bona fides of the union, if you like, in trying to settle the matter. Given that the, as I said, the discussions would have the imprimatur and be under the jurisdiction of the Commission.

PN309

MR HOULIHAN: Sir?

PN310

THE COMMISSIONER: Yes, Mr Houlihan.

PN311

MR HOULIHAN: I wonder if you could make that recommendation under section 111AA?

PN312

THE COMMISSIONER: No, I cannot. Because, Mr Houlihan, a recommendation under 111AA is a recommendation by consent, and unless both parties consent to that recommendation, I cannot do it, I am prohibited under the Act from doing it.

PN313

MR HOULIHAN: Well then, Commissioner, our position is, with respect and I understand, I do understand that the union's position is a difficult position for them, I do understand that. But sir, we are in a position where our business is shut down. We are being picketed. We are being forced to negotiate in the face of a picket. We have been required to negotiate in the face of a picket. We have been forced or, you know, required to negotiate in the face of a picket without any assurance that the people who refused to carry out your directions on Friday are going to carry out your directions today.

PN314

THE COMMISSIONER: Well, it was a recommendation on Friday,
Mr Houlihan.

PN315

MR HOULIHAN: Your recommendation.

PN316

THE COMMISSIONER: And when I come back at 11.30, it might be that that recommendation is, depending on whether progress is being made, it might be converted to a direction. It might be, there is no guarantee. And I understand the company is saying well, we are losing business, but that is the nature of the Act, that is the nature of the Act. The Act encourages collective bargaining or individual bargaining, the Act encourages that where the parties can not reach an agreement, there either can be protected industrial action or a protected lock out. And so the Act envisages at some point that someone will be losing some money. Employees will be losing income, the company will be losing productivity. But that is the nature of the Act, as you know. So, my associate will make a room available for Mr Whyte. And would you want somebody else with you,
Mr Whyte?

PN317

MR WHYTE: Yes, please.

PN318

THE COMMISSIONER: Yes. So, you need to make a call to get somebody in from the picket line?

PN319

MR WHYTE: Yes.

PN320

THE COMMISSIONER: Or protest line, sorry. You will meet with the company but Mr Houlihan and Mr Eiffe will make themselves available to consult with you at any time you deem it necessary, and I will come back at 11.30 and see where we are at. Okay? The Commission will stand adjourned.

<SHORT ADJOURNMENT [9.24AM]
<RESUMED [11.47AM]

PN321

THE COMMISSIONER: I understand that the parties have had some discussions. That is, the company and its employees, and each has taken the opportunity to confer with their appropriate advisors. I understand there might be a slight change in appearances, Mr Houlihan.

PN322

MR HOULIHAN: Yes, may it please the Commission, I now appear with
Mr Neville McCalman for the company.

PN323

THE COMMISSIONER: Thank you. Who would like to lead off?
Mr Houlihan?

PN324

MR HOULIHAN: Mr McCalman, I think it was my idea that Mr McCalman would simply give the Commission a progress report, if you like, on what was achieved.

PN325

THE COMMISSIONER: Okay. Thank you. Yes, thank you.

PN326

MR N McCALMAN: Thank you. I spoke at length with Gary Whyte and Gabriel. Some points were raised that we hadn't discussed too much at length before. One was RDOs - rostered days off. We were under the impression, because we always worked 40 hours a week, that is what they wanted. As we say, we are more than happy to have an RDO and it was explained to me how that would be worked out and we have agreed to, that I will recommend that to the company. They raised the question of protection of entitlements and the income protection. We have agreed to take out insurance for our workers' entitlements and income protection. Some other issues were raised, one being meal allowance for over time and a half, for more than two hours a day. We said there is a lot of small things like that, can we cover that by making the annual increase more.

PN327

They said can we have 13 and a half per cent over three years, and we said look, can we make it 15 per cent to cover little things like that and they were more than happy with that. So five per cent per year. And two hours per day overtime, time and a half and anything over that by mutual agreement would be double time. Now, they are all the issues that we have addressed and we were quite comfortable with all that was come to. And I think Gary and Gabriel were too. That's all I have got to say, Commissioner.

PN328

THE COMMISSIONER: Thank you very much. Mr Terzic?

PN329

MR TERZIC: That is a fair encapsulation, but I might just augment it slightly. As I have instructed, there is still some more progress that needs to be made on redundancy and it might be that the scale that applies to larger employers applies to Civiquip, but the company has not conclusively said yes to that, as I understand. We were, we are still in negotiations on that. And as for superannuation, there might be an arrangement whereby contributions go from the employer to a retirement savings account, and from there they might then move to an industry superannuation fund. And that is something that just needs some further examination, but there seems to be agreement in principle. As for the other items mentioned by the company's representative, that seems to be quite accurate. And overall, at this stage, the union is satisfied than the company has now met its demands, or the employee's demands, in good faith.

PN330

And on that basis, we will strongly recommend to the union members involved that the picket line be dismantled forthwith, the site be cleaned up and that there be resumption of normal work tomorrow morning in an orderly fashion and that the union members and other employees and the company make every effort to bring harmony and peace and avoid any sort of recrimination over the incidents that have hitherto occurred and that all parties move forward in a spirit of cooperation, progress and harmony.

PN331

THE COMMISSIONER: What was discussed last Friday, also, was I think a mutual code of conduct between the company and its employees to avoid any of the issues that were raised last Friday in terms of religious vilification. Now, I would see that as still being an important part of the outcomes. Do you agree?

PN332

MR TERZIC: We are certainly amenable to something like that.

PN333

THE COMMISSIONER: Right.

PN334

MR TERZIC: To further go towards bringing cooperation back into the company's operations between the employees and the employer. And the other issue that needs to be sorted out is some form of instrument, but there have already been discussions that are broadly acceptable to both sides and the union and the company's representative,
Mr Houlihan, will confer and will keep the Commission appraised as to how we approach that.

PN335

THE COMMISSIONER: Thanks, Mr Terzic. Mr Houlihan.

PN336

MR HOULIHAN: Yes. Just a couple of comments, Commissioner. First of all, in relation to the redundancy severance package, the company position is that it would want the prescription that was made by the Commission last year. There was some confusion, or some concern, with the blokes about the difference between nine years of service and 10 years of service. I am sure that has been a constant source of conversation wherever that has been applied. So, but that is very much the company position. We have got nothing further to add, other than we would want the bargaining period ended. And as part of the whole process of getting back to normal, the company has undertaken that it will not be acting in a way to denigrate or to, in any way, injure the people that have been involved in this. What has been raised is that there ware a couple of young blokes out there who are young blokes and the company will exercise it's best endeavours to have them to act less like young blokes than young blokes sometimes do. But we will use our best efforts to ensure that that happens, and I think that is pretty much it, but we do want that bargaining period completed.

PN337

MR TERZIC: Yes, Commissioner. I have been instruction that the AMWU hereby formally applies to have the bargaining period terminated. Now, in doing that, there is one small problem that I wish to alert all the parties to and the Commission to. But it is definitely not. And that is that unless a bargaining period ends an agreement, all action, protected industrial action that was taken pursuant to that bargaining period, ceases to attract the protected industrial action status. But nonetheless, we are willing to treat the lock out as a bygone that should be left in the past and any bans or other action the union members have taken up to this point, if they are similarly and equally treated by the company as matters that are best left in the past, we will continue to go down the track that we are on now.

PN338

MR HOULIHAN: And this is precisely the company position, Commissioner.

PN339

THE COMMISSIONER: Right. Do you have the bargaining period number on hand? Does anybody? If somebody could get it and just advise my associate. Or, no? Just if you know it off hand, that just makes it a bit easier for my associate, that is all. The bargaining period, I would assume, would conclude at midnight tonight?

PN340

MR TERZIC: Yes, that's- - -

PN341

THE COMMISSIONER: I think that would be appropriate. It's all right. Not to worry.

PN342

MR TERZIC: I have found the number.

PN343

THE COMMISSIONER: Thank you.

PN344

MR TERZIC: BP 2005/1555.

PN345

THE COMMISSIONER: Thank you very much. If, and I hope there is not, but if for some reason or other there might be a sticking point, either party is free to seek some assistance of the Commission if they wish. I will await the outcome of your discussions in terms of the instrument to bring this forward. If it is to be dealt with under the exceptional matters order, if it can be dealt with that way, then please feel free to contact me and we will make the necessary arrangements. The Commission does thank the parties for their efforts this morning in reaching an agreement. And hopefully the parties will be able to move on from this point. Thank you for your cooperation. The Commission will stand adjourned.

<ADJOURNED INDEFINITELY [11.57AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

GARY FRANCIS WHYTE, AFFIRMED PN108
EXAMINATION-IN-CHIEF BY MR TERZIC PN108
CROSS-EXAMINATION BY MR HOULIHAN PN191
THE WITNESS WITHDREW PN269