C2006/2594, Transcript of Proceedings [2006] AIRCTrans 1022 (1 September 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 15601-1

COMMISSIONER EAMES

C2006/2594

NATIONAL UNION OF WORKERS
AND
NESTLE AUSTRALIA LIMITED
s.170LW pre-reform Act - Appl’n for settlement of dispute (certified agreement)
(C2006/2594)

MELBOURNE

10.21AM, THURSDAY, 17 AUGUST 2006

Continued from 2/6/2006

PN1

MS S ALLISON: I appear on behalf of the National Union of Workers. Commissioner, with me today I have MR G THOMSON and MR P TREVASKIS at the bench who are delegates on site.

PN2

MR M KARAKATSANIS: I appear on behalf of Nestle Australia together with MR J CORBETT, also from Nestle Australia.

PN3

THE COMMISSIONER: Thank you. I guess it's over to you, Ms Allison, to open the batting.

PN4

MS ALLISON: Thanks, Commissioner. Commissioner, this is a dispute about three employees who have been required to take on significant additional responsibilities, skills and duties, and have not been compensated for taking on those responsibilities, skills and duties. Those responsibilities, skills and duties relate to the operation of the boiler. As we will show, the operation of the boiler is fundamental to the operation of the entire plant and is a very important responsibility.

PN5

We say that the Nestle Australia Limited Tongala plant and the NUW certified agreement 2006 specifically provides compensation for these responsibilities, skills and duties, and that is provided through the plant services allowance at 14.5 of the agreement. In the alternative we say that the agreement provides for reclassification of employees who take on substantial significant additional responsibilities, and we'd submit that these employees should be reclassified to level 6.

PN6

Commissioner, in the summary of arguments that we forwarded we set out the orders sought by the NUW and they are that the three employees, Terrence Anderson, Gavin Ryan and John Street receive the plant services allowance or, in the alternative, the relevant employees are reclassified to level 6, and that the allowance or the reclassification be backdated to 1 October 2005. Commissioner, in the alternative the NUW seeks that the Commission determines an appropriate amount of weekly compensation.

PN7

We will be arguing that the plant services allowances provides the relevant standard that the Commission should be looking at in terms of determining an alternative amount of compensation. Commissioner, I intend to call two witnesses, being Chris Andrew and Gavin Ryan. Our evidence through witness statements and other matters that we'll take you to will show the significance and importance of the additional responsibilities, skills and duties taken on by the employees. In particular we will show that the employees do far more than what the company suggests, they do far more than monitor the boiler. They are boiler operators.

PN8

We will show that there is little difference between the responsibilities of a limited attendance boiler and the duties performed by the three employees, and we will show that the plant service allowance both historically and currently applies to employees who perform similar duties in relation to the boiler. Commissioner, I intend to call Chris Andrews as a witness, but it's probably appropriate that all of those who are witnesses go outside.

PN9

THE COMMISSIONER: And cruise the corridors for a little while. Yes, I think that's appropriate.

<CHRISTOPHER GRANT ANDREW, SWORN [10.26AM]
<EXAMINATION-IN-CHIEF BY MS ALLISON

PN10

MS ALLISON: Chris, I might hand up - that's the original for the Commissioner and one for Chris?---Thank you.

PN11

Mr Andrew, could I get you to identify the document that's been handed to you?
---This is my witness statement that I made and signed.

PN12

And is the content of that statement to the best of your ability and knowledge true and correct?---It certainly is.

PN13

Commissioner, we'll tender that witness statement.

EXHIBIT #A1 STATEMENT OF CHRISTOPHER ANDREW

PN14

MS ALLISON: Chris, if I can take you to paragraph 15 of your statement, where you refer to Terrence Anderson, John Street and James Christofis and Gavin Ryan, and in brackets, as the FMR employees. Would you mind clarifying that?
---I've stated as the FMR employees, this is actually an FMR area, which is fresh milk receivable. It's an area to where they bring in milk, they standardise it. There was a group of - there was a large group of employees in that area and they're basically going down to three operators that now service that whole area, so they do milk collection in, they standardise, they deploy milk out, they batch, et cetera.

PN15

And what level is a standardiser?---A standardiser to my knowledge is a level 5 because of the content of the work that they are required to do?---Okay, thank you.

PN16

Chris, during its history the company has had a number of boilers at the site. Which boilers do you have experience in?---The boilers presently located at the factory at two John Thompson 20 tonne and two 10 megawatt Maxitherm boilers. The John Thompsons were originally briquette fired and then were converted to gas, they became unattended, or limited attendance, sorry, and now we only run the two Maxitherm.

PN17

And so which of those boilers have you had experience on?---The whole lot, presently running the two Maxitherms, which is required for steam production in the factory.

PN18

Okay. If I could take you to paragraph 18 of your statement, you say there's not a lot of difference between the duties required in servicing the John Thompson and the duties required in servicing the automatic boilers. Would you mind expanding on that?---Not a problem. The style of boiler is still relevant whether it be the size of a car or whether it be the size of a building. You still have water valves, you still have water drums, you still have fire drums, you have steam out valves, you have safety valves, et cetera, you have blow down, you have chemical addition, and you have some form of firing of those boilers. So basically it doesn't matter what size they are, you've got to look out and maintain and identify problems within the boiler, or on the boiler.

**** CHRISTOPHER GRANT ANDREW XN MS ALLISON
PN19

Would you compare issues that you've had with the boilers?---Running the Maxitherms, even though they've basically got all the same paraphernalia across them to run them, these Maxitherm boilers have been a significant increase in work because of the - they break down a lot basically, that's the easiest way to describe them, so there is a fair bit of work involved in maintaining factory production. So at the moment they're hooked up to what they call a SCADA system, which allows an alarm to go to a phone and at any stage whether it be day or night while those boilers are operating if it's required or an alarm goes off we actually go back to those boilers to restart, well, basically identify what the problem is, then restart the boilers in a safe procedure. You'd probably call in on the boilers apart from that several times through the day just to make sure everything is operating correctly.

PN20

Commissioner, I should probably have asked at the beginning, have you had a chance to read the witness statements?

PN21

THE COMMISSIONER: Yes, I have.

PN22

MS ALLISON: Yes, thank you.

PN23

I'm going to refer to a statement by Leslie Perkins. In that statement he says,
14 October 2005, the plant would now be managed by two full time service attendants who would be responsible for the plant over seven days the site was operating. Now, who is he referring to, I first should say, when he's talking about that, those two full time service attendants?---That statement there covers another guy called Anthony Haywood. He was made redundant in the March redundancies. He and I were both trade waste operators, and since the October decision to downscale the factory, you know, with the 144 being made redundant, he and I were asked to do a lot more jobs within the services area such as taking on boilers, refrigeration area and checking the other services areas such as the cooling towers and pumps, et cetera.

PN24

And who performed all those roles before you?---Prior to that, prior to the October they had four full time boiler attendants, and there was two fitters from the AMWU that looked after the refrigeration, so the areas were only looked after by the four boiler attendants and the refrigeration was looked after by the two fitters. They also, because of their skill structure, were responsible for maintenance across the whole site in that services area.

**** CHRISTOPHER GRANT ANDREW XN MS ALLISON
PN25

Okay. So a number of people?---Yes.

PN26

I'm going to take you to LP1, which is a document from 1991 that Les Perkins refers to. It's a letter that Les Perkins refers to, it's entitled Boiler Limited Attendants. And I'm going to read you a paragraph from that letter, it's paragraph 2, the first two, an allowance, it says:

PN27

The allowance of $34.60 per week will be for all purposes and is offered as a skills based payment for the knowledge and the qualifications required to administer attendance at the boiler. This will be paid to those operators currently being paid for refrigeration and boiler skills through current refrigeration allowance and in charge of plant allowance.

PN28

Now, at that time who performed the plant service role?---Well, back at that stage there was three different roles basically. There was a trade waste operator, there was boiler attendants and there was a fitter which was assigned to do the ammonia plant as well. But the allowance, or the spirit of the allowance to my knowledge was brought about because of the skills required to run the boilers.

PN29

And who received that allowance?---Anybody that was - well, anybody that was - who attended or ran the boilers basically. So the boiler attendants got it, the relief plant attendant who was the second trade waste operator, he got it, and I also got it. It was an allowance basically to cover the operation of the boilers.

PN30

Thank you. I want to show you a document, LP2. I've got one that's not marked, but it hasn't changed since. Now, who performed - you will see in that document, that column on the right, you will see down the bottom it says "currently receives plant service allowances," and up the top it says "service operator." Who is that referring to, service operator?---Well, I suppose it refers to me. The services operator position basically I've basically fallen into, I didn't have to apply for it. I still consider myself as the trade waste operator that's now performing extra services within the factory.

PN31

And who performed all those services in the left hand column before you performed them?---Prior to October 2005 the boilers were operated by the boiler operators, the cooling towers monitored by the boiler operators, the same with the water pumps. The ammonia plant was run by a fitter, fitter and turner. The boiler operators would go in and monitor only, they'd take separate readings through that plant. Same with the air compressors, and the general area is not really relevant in that section.

**** CHRISTOPHER GRANT ANDREW XN MS ALLISON
PN32

Okay, thank you. Now, in his statement Les Perkins says at 23 that the plant - this is after March:

PN33

The plant would now be maintained by only one service operator with one relief who would perform duties with respect to the plant where required.

PN34

Now, who was your relief?---Presently I have no relief. If I were to go on holidays at the moment the only thing they can really monitor is having the FMR operators, or I'll call them the FMR operators, looking after the boilers because there's nobody else trained up to run those areas.

PN35

And in relation to the boilers who is relieving you today?---Today is the current FMR operators which are splitting a 24 hour shift.

PN36

I'm going to go to the statement of Mark McWhirter. No, sorry, I'm going to go to attachment of Mark McWhirter, MM2, and I'm just going to read you - it's a document that sets out duties. I'm just going to read you the first dot point:

PN37

The FMR operator completes the start up and shutdown activities of the boilers ordinarily once per week. These combined activities usually take approximately 2.5 hours to complete.

PN38

Now, what do you say to that?---On a good day with everything running, two and a half hours would be a good start up.

PN39

A start up?---Yes, a good start up. A shutdown on a good day is about an hour. On a bad day a start up can take up to three, maybe even three and a half hours, and the shutdown, depending on what's happening and time allocation to it, can take up to an hour, an hour and a half, sometimes up to two hours. It depends on how quickly we've got to actually shut the boiler down.

PN40

And it says that they start up and shutdown ordinarily once per week. What do you say to that?---The boilers presently are started on a Monday, Monday morning at 0100 hours or Sunday midnight, taking, you know, anything up to three hours. The shutdown during the week is on a Friday afternoon somewhere between 6 o'clock and midnight, but if they've got problems with a boiler through the middle of the week, such as an example would be Monday of this week where we had a boiler, they went in to start number 3 boiler, it took - Gavin tried, I think it was about six or seven times tried to start it, and then he had to go over to the other boiler and start it instead, so he's basically lost a fair bit of preparation time. And that could happen through the middle of the week where, if a boiler had a problem with it, if it failed to restart they'd have to restart another boiler from cold.

**** CHRISTOPHER GRANT ANDREW XN MS ALLISON
PN41

Chris, what level are you?---Are you talking about my CVT points?

PN42

I'm talking about your level of 1, 2, 3?---Within the factory. My level presently is a level 5. That was current with what I was doing at the trade waste.

PN43

Now, if I could take you to paragraph 26 of your statement, where you talk there about what you're paid. You're paid a disturbance allowance, an hour's pay when you're called for a query:

PN44

If I have to go to work out of hours I get a call in allowance of 3.8 hours at overtime rates.

PN45

Would you be able to tell the Commission how much that is?---I can do that. A disturbance call for Nestles at the moment at Tongala costs them an hour's pay which is about $26.50 in that area. If I deem it to be a call out where I've got to go into the factory to rectify a problem it can cost them up to about $170-odd.

PN46

In Mark McWhirter's statement at paragraph 9 he talks about asking a Mr Newman to speak to employees in the FMR area about providing coverage on a minimal basis. He says:

PN47

The FMR operators would have the most flexibility and time available to provide minimal coverage required for boilers.

PN48

What do you say about that?---With the job structure change as of October 2005 certainly the jobs have changed quite considerably, but some nights with the way those Maxitherm boilers run they can be up to five or six times, they can be over rectifying problems or monitoring the boilers with small issues such as flame outs, et cetera. So it's fairly time consuming if you're doing a job to be interrupted and go over to the boilers on a basis like that, it's fairly disconcerting with your job structure, that's for sure, especially if they're pumping milk in, et cetera.

PN49

He describes that as minimal coverage required. How would you describe that?
---Yes, it's not really minimal coverage. There's a fair bit of work involved in maintaining those boilers overnight. You can have power outages, et cetera, to which they'd have to then make sure that they've got compressed air, also make sure that the refrigeration plant is going, and then get the boilers back up. Yes, it's time consuming, very time consuming.

**** CHRISTOPHER GRANT ANDREW XN MS ALLISON
PN50

You mention there refrigeration and compressed air. Where are they?---In relationship to the boilers they're about 30 metres away in another building. But without compressed air, an example would be if they had a power flick or a power outage, if the compressors don't restart within the - air compressors don't restart within the plant there's a lot of fail to open valves, so there can be water, et cetera, going anywhere. The structure of their valve system is compressed air opens and closes valves. Compressors, they're mainly compressors that are required for keeping chilled water going around the plant to maintain product quality, and then say your FMR operators would be going over checking that there's no problems there and then they'd be going back to restart the boilers.

PN51

Now, I'm going to read a paragraph to you from Mark McWhirter's statement, it's paragraph 17. He's talking about when the issue of the additional responsibilities was raised with the company. He says:

PN52

When the matter was first raised with me at this time I had advised the shop stewards representing FMR who were claiming this allowance that the CBT structure covered this type of work, and that any advancement in pay should come through that system.

PN53

What do you say to that?---The system of the CBT was really good up to about a level 4. If you're in the areas of a level 5 or a level 6 it was very airy fairy, it was not really put down in writing exactly what was required in those areas. The actual operation of the boiler requires really additional skills because you've got to make sure they're in a safe condition when you leave them in their running condition or leave them in a safe condition when you're leaving them shut down because they can be volatile, as high as sleeping giants basically. You just try to make them work properly.

PN54

Would you give me some examples of CBT?---CBT points would be OH&S skills, computer skills, safe food handling, et cetera, mathematics. Each additional skill you equate extra CBT points, so you could go from a level - well, if you came into the factory and went from level, say level 1 or 2 right through to level 5, you're putting your hand up for going back to school and learning additional skills, and they'd be equated to a CBT point, or point and skill ratio.

**** CHRISTOPHER GRANT ANDREW XN MS ALLISON
PN55

And how do you organise to get CBT units?---They're based on your job structure, so you could go - an example would be an FMR operator, an old FMR operator, you could be a level 4. If you went to be a standardiser you'd need to have level 5 skills. So the additional skills of knowing how to treat milk, how to standardise milk, et cetera, would be the additional skills required and those would be points allocated.

PN56

Who determines whether you can apply for CBT?---It came down to your team leader and also HR, human resources.

PN57

In what about?---If there was a position available. But you could go and actually - sometimes you're asked to go and learn the skills even though you're on a lower pointage area, and they could, at the end of the skill level they'd equate you those points as well. So your points are actually related to the amount of money you actually get.

PN58

And what if you don't want to do the training?---You have the option of not doing any training. It's not a wise move though. It's like anything, you need the money.

PN59

THE COMMISSIONER: Can I ask so I'm clear here. We're talking about competency based training I assume, that's what the CBT is?---Yes.

PN60

Is that an internal program that's run by Nestle?---Yes.

PN61

It's not a food industry?---It's run through food industry and mechanical skills through a TAFE orientated course.

PN62

It's a food industry program?---Yes.

PN63

Right, thank you.

PN64

MS ALLISON: Now, who previously has performed the role of level 6?
---Previously there's only been three NUW people that have ever performed level 6, it was basically a supervisory role. They could work - they were basically people who were working on a 24 hour, 24/7 four on four off shift, and they filled in the position of basically the supervisor of the factory. When there was no manager, et cetera, there they were responsible for the running and management of the factory.

**** CHRISTOPHER GRANT ANDREW XN MS ALLISON
PN65

Was it a relief role?---It was a relief role, yes. Chris Haywood and Brian Gemmell were the two names that come to memory. Chris would have performed at least 80, 90 per cent of the relief situation there. He was relieving the supervisors which were on staff, and Brian did the same.

PN66

What happened to those roles in the redundancies?---With the closure of the milk powder section all those roles became redundant, so we have no supervisors on shift any more at all.

PN67

Okay, thank you.

<CROSS-EXAMINATION BY MR KARAKATSANIS [10.57AM]

PN68

MR KARAKATSANIS: Mr Andrew, in your evidence you've just given you say that prior to taking on the responsibility of the plant that the boiler attendants pre October 2005, I'm assuming, performed tasks relating to the plant. Were they paid a plant services allowance?---A plant services allowance?

PN69

The allowance that's in question at the moment?---You're talking about a boiler allowance?

PN70

No, I'm talking about the plant services allowance?---To my knowledge, yes, they were.

PN71

Okay, thank you. And they were responsible for the plant, as you indicated?
---They were responsible for the boiler area, yes, and monitoring refrigeration.

PN72

Okay. I'm just a bit confused here, but you also said that they had responsibilities for other areas of the plant such as air compressors and things like that?---Yes, that's all in that same area.

PN73

So that's correct?---Yes.

PN74

Okay, thank you. And now you're looking after those areas of the plant, you've found yourself looking after those areas of the plant?---Yes, that whole area has been transferred to me, yes.

PN75

And you're paid the plant services allowance, is that correct?---I have been paid the plant services allowance for many years, yes.

**** CHRISTOPHER GRANT ANDREW XXN MR KARAKATSANIS
PN76

Okay. Mr Andrew, you say in point 6 of your statement that prior to
October 2005 you would fill in for the boiler operators about twice a year, is this correct?---To my knowledge, yes, that's correct.

PN77

And that when you acted as a boiler operator you would undertake other tasks with respect to plant when you were filling in, such as inspecting water pumps, NH3 plant, air compressors, is this correct as well?---That's correct.

PN78

So when you were filling in as a boiler operator about twice a year you were also carrying out these additional tasks?---They were tasks required, yes.

PN79

And you were receiving the allowance during that time when you were required to fill in or called on as a back up?---I have been receiving the full allowance anyway even in the trade waste position.

PN80

And when you were required to fill in about twice a year, as you say in your statement, you were receiving that allowance through that time?---Yes.

PN81

Okay, thanks. Mr Andrew, you also say in your statement that John Andrews and Ernie Haywood were boiler operators who moved into or from the production area, that's correct?---That's correct.

PN82

And they had the same responsibilities as the other boiler operators in terms of the plant?---Yes. Ernie Haywood was my relief for trade waste and he was required to - - -

PN83

But in terms of the question, they had the same responsibilities?---Yes, they had the same responsibilities.

PN84

Were they certified boiler operators to your knowledge?---They had boiler licences, yes.

PN85

Mr Andrew, you talked a lot about the time taken for starting and stopping of the boilers and that when there was a problem sometimes it could take up to three and a half hours, but ordinarily if there were no problems it would take the time as indicated in the work study contained in the document MM2, is that correct? Ms Allison referred to a document, MM2?---Yes, I know what you're talking about now.

**** CHRISTOPHER GRANT ANDREW XXN MR KARAKATSANIS
PN86

Ordinarily the boiler takes about two and a half hours to start up but, as you said, when there are problems it could take up to three and a half hours?---Well, you've got two startings of boilers. You've got a hot start where a boiler has got temperature and pressure in it, and you've got a cold start, and that cold start relates to a Monday morning or when the boilers have been off for a longer period of time.

PN87

So that's when it takes sort of two and a half to three and a half hours?---Yes, that's correct.

PN88

And those duties that we've just talked about are contained in the duty description of the FMR employees contained in the table marked LP2?---That's that one there?

PN89

Yes, the starting and stopping of the boilers that is?---Yes.

PN90

Right. So it may take some additional time?---Well, it takes additional time
and - - -

PN91

But the duties are contained in that document aren't they?---The starting of
boilers - - -

PN92

Mr Andrew, sorry, I'm asking you a yes or not question?---Sorry.

PN93

They're contained in that document aren't they?---They are contained there, yes.

PN94

All right, thank you. Mr Andrew, you also say that the John Thompson boiler and the Maxitherm boiler are effectively the same, or you said words to that effect. Was that right?---They're effectively the same, yes. They've got all the same structure on them.

PN95

Right. So the FMR employees who currently have responsibilities as indicated in this table LP2, would basically have the same knowledge as you in this regard?
---To start, yes.

PN96

To start and stop?---Well, to start and stop. But they once again, like any item which is similar, they have to have some training, yes, because of the different format of boiler.

**** CHRISTOPHER GRANT ANDREW XXN MR KARAKATSANIS
PN97

Sure. And they've had that training?---Not on the John Thompsons.

PN98

But in terms of the Maxitherm boilers effectively they would have the same training as you and they would, or their knowledge would be the same as yours, is that correct?---Like anything, yes, they're picking those skills up.

PN99

Right, they're picking them up?---Well, I'm picking them up as well, so I'm not saying that I'm a perfect operator, but I'm saying like anything you pick up little idiosyncrasies that certain machinery has.

PN100

THE COMMISSIONER: You just happen to be the gun on site?---Yes, okay.

PN101

MR KARAKATSANIS: That's probably getting to the heart of what I'm asking you, Mr Andrew. So there have been occasions where the FMR employees have called you to resolve issues that they themselves can't resolve?---They have been known to call me, yes.

PN102

So you're essentially seen as the first person they call when there's an issue, you're essentially seen as the person responsible, is that correct?---Well, to solve some problems over the phone, yes. Other problems we have to call in Steamworks, which is the contracted expert.

PN103

But they would call you first?---Yes.

PN104

Right. Mr Andrew, you say that the CBT structure beyond level 4 is airy fairy or sort of airy fairy, is that correct?---How I've always seen it, yes.

PN105

Yes, okay, in your opinion. Have you seen the CBT matrix of skills on offer from the site?---I saw several papers which were of the structure, yes.

PN106

Were relating to the structure?---Yes.

PN107

How long have you held this opinion for, Mr Andrew?---Had the?

PN108

Held the opinion that the CBT structure is airy fairy?---About 12 months after they first started the CBT points, because the trade waste was never an area that they rationalised properly.

PN109

And when was that 12 months after, when was the time it was brought in, around about?---I think it was brought in '85 or '87, in that area.

**** CHRISTOPHER GRANT ANDREW XXN MR KARAKATSANIS
PN110

Right. You're aware you have an EBA on site, Mr Andrew?---There is now an EBA on site, yes.

PN111

And there's been an EBA in place for some time in production I'm assuming?
---Yes.

PN112

Are you aware that EBA gets renegotiated every couple of years?---Yes, I do realise that.

PN113

Has this ever been raised at an EBA negotiation?---It has.

PN114

And anything was done about it? Did the union pursue the claim to your knowledge?---The only thing I've got out of it is a disturbance call, or disturbance allowance.

PN115

Right. Mr Andrew, you say in your statement in point 13 that you thought the site would shut down after the - I'm assuming after the October 2005 announcement, is that correct?---Well, that's the opinion, the general opinion that was going around, yes.

PN116

Did Mark McWhirter, the factory manager, or Peter Webber, the technical director who was making a lot of announcement at the time ever express that to you, that the site was going to shut down?---Not to shut down, but they were looking at the prospects of a factory continuing in various different forms.

PN117

You also say as part of that point in 13 that the company asked employees to take up extra duties to get the plant through the final phases. I'm assuming that's prior to the site closing down. This was never put to you by Mark McWhirter was it, that statement?---On 13 the people took up extra duties to get them through what they called a transitional phase, and the general opinion at the time was the factory was not going to continue. There's been previous talk of liquids area shutting down or being transferred to another plant.

PN118

But it wasn't put to you by the factory manager himself or, indeed, the technical director that, you know, look, help us out through these last few months?---No, not out of their words, no.

PN119

Right. Nothing further, Mr Andrew, thank you.

**** CHRISTOPHER GRANT ANDREW XXN MR KARAKATSANIS
PN120

THE COMMISSIONER: Anything needs clarification, Ms Allison?

PN121

MS ALLISON: Just one or two questions, Commissioner.

<RE-EXAMINATION BY MS ALLISON [11.09AM]

PN122

MS ALLISON: Chris, you were asked who was responsible for the boiler. Who was responsible for the boiler on night shift?---What we call the FMR operators, yes.

PN123

And who is responsible for the boiler today?---Today two FMR operators are splitting a shift to cover the day shift there at the plant.

PN124

The company spoke with you about CBT points. What your knowledge of CBT points and boiler operating?---And boiler operating? To my knowledge the boiler operation, more skills were related to a level 4, and like a lot of jobs within the factory there was core elements of the CBT points, and then there was points which are additional to that. So you could, depending on which stream that you were going to go down, depending on what points you actually got.

PN125

THE COMMISSIONER: Which would allow a move to another level?---Yes, to move to different levels or to do different job structure or job skills, yes.

PN126

MS ALLISON: That's all thanks, Commissioner.

PN127

THE COMMISSIONER: I've got no questions, thank you. You're excused.

<THE WITNESS WITHDREW [11.11PM]

PN128

THE COMMISSIONER: We have Mr Ryan, do we?

PN129

MS ALLISON: Yes, thanks, Commissioner.

<GAVIN JAMES RYAN, SWORN [11.12AM]
<EXAMINATION-IN-CHIEF BY MS ALLISON

PN130

MS ALLISON: Gavin, do you have your statement there? Mr Ryan, would you identify the document you have in front of you?---Yes, it's my witness statement I made to you, yes.

PN131

And to the best of your knowledge and ability is the content of that statement true and accurate?---It is true and accurate except for one slight amendment I'd like to make on section 11, where it says "we are certified limited attendance boilerhouse operator," we are actually unattendant boilerhouse operators.

PN132

So, Commissioner, we've actually made that amendment on the document, the one that we deem now previously.

PN133

THE COMMISSIONER: Yes, that's fine.

EXHIBIT #A2 STATEMENT OF GAVIN RYAN

PN134

MS ALLISON: Gavin, if I can take you to paragraph 6 of your statement, in the last sentence you say:

PN135

The employees who remained to perform the new FMR standardiser role were myself, Terence Anderson, John Street and James Christofis.

PN136

Now, prior to that new role who out of those employees - what did those employees perform?---Well, prior to this myself, John Street, James Christofis were standardisers, and Terence Anderson was an FMR operator.

PN137

And are you aware of the levels of each of the employees there?---Previous to this new restructure at the plant Terence was a level 4 FMR operator, and John, James and myself are all level 5 standardisers, current standing.

PN138

Okay. If I can take you to paragraph 8 of the statement, you say:

PN139

Top of my new busier role, Tony Johnston, the HR manager at the time, asked me, Terence, John and James to monitor the boiler.

PN140

Now, what did you feel when he asked you to do that?---Well, when Tony spoke to me about monitoring the boilers I understood that role to be as he stated, to monitor, and that was purely to go across probably once a shift and, you know, check that they were running, and if not to notify somebody else. And I thought that's all that was involved with it. A simple point of the job was just to monitor them. And yes, that was only going to be a temporary solution until the plant found out what it was going to do, and if it was going to continue to run then they would look at probably re-employing somebody or something. But my impression was it was just going to be a temporary position just to monitor them.

**** GAVIN JAMES RYAN XN MS ALLISON
PN141

In paragraph 11 you talk about the course you attended, or certified as unattended boilerhouse operators, which are the only boilers on site. I'd like to hand you up a document to identify. Now, there are two documents there. I'm looking firstly at the one that states "Has attended a training course covering the operation of unattended steam boilers." Could you identify that document?---Yes. This one here, yes. That was a course we had to do over two days course with Harvey Goldsmith, it was a course the company supplied us with, and we believed that, yes, that once we attained this certificate we were boiler operators.

PN142

Commissioner, I tender that certificate.

EXHIBIT #A3 CERTIFICATE FOR OPERATION OF UNATTENDED BOILERS

PN143

MS ALLISON: And the other certificate you have there which states "Has attended a one day training course covering the principles of operation of ammonia refrigeration plant," would you identify that document?---Yes. That was a course we had to do. We were led to believe it was to help us in running the refrigeration plant at the site to keep it going, yes, basically.

PN144

Commissioner, I tender that document.

EXHIBIT #A4 CERTIFICATE FOR OPERATION OF AMMONIA REFRIGERATION PLANT

PN145

MS ALLISON: Now, in paragraph 17 you list some of your duties in regards to the boiler. You say the boiler requires continue service and troubleshooting. Would you give me some examples of troubleshooting?---Probably the most common one we have over there is a flame failure, and that is when the flame in the boiler actually goes out and we have to go across and restart the plant to get it up and running again, because if we don't we'll lose any plants that are running, steam throughout the whole plant could shut down and therefore causing a lot of loss of product and/or machinery. Another probably - - -

PN146

THE COMMISSIONER: Is that what would be known as a hot start operation as opposed to a cold start operation?---That would be a hot start operation, whereas a cold start operation is when we actually start the boilers up from dead cold, coming in, turning the water on, going through the whole process of starting the boilers up, whereas this one here is a hot start, they've already been running and they're already up to pressure or near enough to pressure that's required.

**** GAVIN JAMES RYAN XN MS ALLISON
PN147

Thank you?---Probably another common one is site glasses. They have a tendency - a short life span, they could break and therefore they are - site glasses used to monitor the boiler level, put the water in the boiler, and if they aren't monitored and they do break all of a sudden you're not only getting steam out of the plant but you're losing hot water out of the boiler, therefore the boiler is working a lot harder and it could cause serious damage to it if it's not found. Another common one is steam release valves throughout the factory. For some reason they go off, you have to be able to go and fix them, or if you didn't we'll have a lot of people ringing up complaining in the town, and if we didn't go and do them at this stage now that we have been doing we'd have to call somebody like Chris Andrew in or maybe a fitter in, and then if that happened, yes. I know, say we had to call a fitter in to fix a problem, mainly that we are - if we can't fix it we're isolating the problem. If we didn't do that it would be costly to the company, probably four hours overtime each for the fitter to be called in, which is probably we're looking at probably close to $200 each time it happened. And that has happened to me personally on a regular basis, at least probably once a week.

PN148

MS ALLISON: So how often would you be troubleshooting?---On an average I'd say probably two to three times a week, on an average. Like, this week I've only worked three nights and I've had two instances so far. Other weeks when we were having problems with the boilers it was up to four or five times in the one night. But on average I'd say probably two to three.

PN149

And how often would you call Chris in?---Me personally in the last month I've probably rang Chris four to five times. I've only, I think probably once in the last probably two months I've actually had to call a fitter in to fix the problem. But we have had major ones. After shutdown one weekend there was some condensation got into a switchboard and shorted it out, and John Street was the operator on site at the time and he couldn't start it up, and we finished up calling Les Perkins in, and Les finished up having to get an electrician in, and instead of being on steam by 3 o'clock in the morning I think they weren't on steam until 8 o'clock. And there was another one prior to our major shutdown in June when the water supply line in front of the softeners actually come apart and they finished up having to call in the local plumber as well as Les, a fitter, Craig Gemmell, and the local plumber. They are the major ones that have happened.

PN150

Now, what percentage of the troubleshooting issues would you sort out yourself?
---Overall? Of the problems that come up now I suppose I could probably troubleshoot probably 70 to 80 per cent of them, probably at least 70 to 80 per cent.

**** GAVIN JAMES RYAN XN MS ALLISON
PN151

I'm going to take you to document LP2. Now, you will see on the left they list, the left column lists what the company states that Chris does, and on the right it lists what the company states that you do?---Yes.

PN152

Just under the title boilers it says on the left it says "Start boiler for Chris," and on the right it says "Start boiler for you." What do you say about that?---Well, it's probably totally different because it says here that Chris starts the boilers weekly. When Chris starts them it's a hot start which is only a short time operation, and they're saying here we only do it weekly, where ours is a cold start which is probably a three hour operation, and we also do hot starts probably, you know, it could be up to probably five or six times a week as well, so it's not just the straight fact of starting the boilers. Ours is a cold start which is a bit - probably a lot more involved.

PN153

It then says stop boiler on the left and stop boiler on the right column. What do you say to that?---Chris, when he stops the boilers he usually - on the normal day's production we have two boilers running for probably six hours of the day just to make it safe for the plant to keep running, and then as the steam level drops off the filling lines go home. Chris will actually stop a boiler, and that's not a complete stop. He more or less puts, I suppose in layman's terms, puts it to sleep or puts it to bed, whereas when we stop the boilers on the Friday night we are actually completely shutting them down, we're cutting off all supply of steam, water, that's the steam into the softener, into the dairy and everything, so I'd say we're more, rather than putting them to sleep, we're putting them to bed and, yes, they're out for the whole night.

PN154

Now, in the right hand column where they list your duties would you add anything there under boiler?---We do daily inspections on them when you come on shift and probably two or three times during the shift you would go across and then check out your site glasses and your water pumps and whatever.

PN155

So daily inspections?---Yes. The makeup of chemicals, we've done that on several occasions when for some reason whoever is covering on day shift hasn't been there, Chris has been called away or something like that, and then been getting down. I've actually had to make up a sulphite chemical thing and dose that. So I wouldn't say I do it every week but, you know, I have done that job on occasions, yes.

PN156

Anything else under the boiler heading?---I haven't replaced a damaged glass, but isolated it, only because we haven't got access to the damaged - to the new glasses because they're in the store, but I've isolated them. Safety checks I said we've done. I think that's all.

**** GAVIN JAMES RYAN XN MS ALLISON
PN157

Now, what about moving on from the boiler, is there anything else on that list that you do?---Water pumps I have checked several times down the front. It's either somebody's rang me, or Goulburn Valley Water or somebody within the plant. I've had to go down and either start up a pump or turn it off. The NH3 plant I've gone in and, what we do on a regular basis is we start Sunday night because not only are we starting boilers, we're also pumping our first lot of milk into the factory for the week, so I've gone down and checked the Micon plants are running, we've got chilled water throughout the plant, otherwise we wouldn't be able to pump the milk in. Air compressors, we check them every Monday morning when we start up because if we haven't got compressed air throughout the plant we can't pump the milk in, we can't set up the boilers to do their blow downs because they're air operated valves. That's one on start up of the Sunday night, Monday morning, I do that every time. You probably check them at least probably once to twice a shift on a regular basis, and I have actually had to restart the boilers on at least two occasions when we've had a power shutdown or power flicker as we call them, because if we didn't have the compressors up and running again nothing would run in the plant, it's that simple. And yes, I do that on - I have done that personally myself twice.

PN158

That's in relation to the air compressors?---Air compressors, yes.

PN159

I'm going to read you part of a statement of Mark McWhirter, paragraphs 10, 11 and 12:

PN160

Immediately prior to the restructure in June 2005 I gave instructions to David Newman to deliver a briefing to the FMR area through the mini business unit meeting. The message I asked Mr Newman to deliver was contained in an email I had sent to him, produced and shown to me.

PN161

I'll go to the email in a moment:

PN162

I wanted the operators in the FMR area to understand what would be required of them under the new structure and to ensure that whomever did not want to participate in the new structure had an opportunity to apply for redundancy. Following this briefing Mr Newman advised me that the message was delivered as per my email and that the only question arising from the briefing was a concern over the operation of a piece of plant that they were previously unfamiliar with. I responded that the employees would be trained to meet this requirement.

**** GAVIN JAMES RYAN XN MS ALLISON
PN163

Now, what do you say to those paragraphs?---Well, at that stage the plant was running 24/7, and I was not an FMR operator, I was a standardiser, which is a totally different role within the company. I never attended any MBU meeting that that was discussed at. Maybe I was on days off, maybe I was on the night shift. And never did any other standardiser discuss it. The first time I even heard about this memo was only in the last couple of months when this action started. Yes, so basically to me it was - this is all virtually news to me. Never has Mark spoken to me, or David.

PN164

Okay. The email that was referred to, I'm just going to quote part of it.

PN165

David, as promised, for you to discuss with the guys. Employees must be flexible enough to perform at least two roles within their designated area.

PN166

What do you say to that?---Well, I'd say I haven't heard this, but if that's the case we're already doing that, because one, I was a standardiser to start with, then with the restructure we had to go in and take over from the FMR operators, which is I'm doing, which is the two roles are covered, also covering a recombiner, mixing the sugars and that, so that's three roles I'm covering, also doing the Mojonnier test that we used to have a Mojonnier operator doing there, so I'm covering that role as well, that's four roles, and now there's as well as - now there's unattended boilers position as well, so that's virtually five roles that I'm covering. So if that's the case I think I'm more than fulfilling the obligations that he's asking in that. I think it's probably more than fulfilling.

PN167

THE COMMISSIONER: Are you saying by that that, leaving aside the boiler operation, the additional roles beyond the standardiser were new roles for you?
---Yes.

PN168

Or you were already doing it?---No, no.

PN169

They were all new roles?---All new roles, yes.

**** GAVIN JAMES RYAN XN MS ALLISON
PN170

MS ALLISON: And what do you say about your work level prior October till now?---As in probably minutes worked per hour compared to what it was in October I'd say I'm working a lot more, doing a lot more physical work, but not only that, but we're having a lot more different roles and a lot of them I didn't have a great deal of training in. I suppose it's put me under a lot of pressure, a lot of stress, especially with the boilers they set up a new system that, well, to my knowledge hadn't been in action before, and that was an alarm system set up through a hands free phone, which they give it to me. If that alarm went off, especially when we first took over the role, you just sort of went into panic mode, you know, the boiler's going down, you get a message to say boiler 3 shutdown, and all of a sudden you drop what you're doing and you start running to the boilerhouse, and you'd stop and think, well, have I made sure everything's isolated in the FMR or standardiser, I had nothing tested yet I was going to ruin. Then you'd race over then. Just a build up of pressure, yes, and stress I suppose.

PN171

In that email that he says there will be on each shift - will be one operator on shift who will do standardising batch, tank, silo cleaning, material staging, wet ingredients mixing and dosing and monitoring of boilers unattended. What do you say about that?---Well, I think we do a lot more because we are doing all them other jobs you said earlier, the cleaning, the batching and that, and to me monitoring is what the word means, is to monitor, not to actually run, operate or - which is what they're expecting us to do now, what we are doing. And I just feel like - I don't know how to say it. I just feel like I'm under pressure all the time, and it's not something that I thought was going to happen and it's not something I have agreed to do. But yes, I suppose we are trying to do it, but yes.

PN172

Now, Mark goes on to say at 16:

PN173

The first I had come to know of this claim -

PN174

That's the claim for the allowance:

PN175

- was in May 2006 shortly before the matter was initially listed in the Australian Industrial Relations Commission as a dispute.

PN176

What do you say about that?---If that's Mark's first knowledge, to be honest I'd be very surprised, because when this first was mentioned that we would be taking over, monitoring, before we actually did the course in September I'd spoken to Tony about it and he said, well, that will be looked at. And then once we did take over in October when we started monitoring and running the boilers, learning how to start them up, shut them down, and then we actually took over actually running them I went and spoke to Tony about it and I said, you know, well, what's the go, you know? Are we going to be compensated in this? And he said yes, well, that's something that will have to be negotiated between management and the unions, but they'll look into that. And I said, well, that's good, and I said, well, what sort of figure are we looking at? And he said, you know, it will be something in the vicinity of $100 to $150 a week on top of your normal rate. And I said, well, that will be good. And he said that will be something that will have to be negotiated. And at that stage I was happy with that. And as far as I was to believe that Tony must have been talking to somebody higher up in management, so I gathered Mark must have been in the loop somewhere. So I'm very surprised for Mark to come out and say that, yes.

**** GAVIN JAMES RYAN XN MS ALLISON
PN177

Now, Mark then says, 17, that "The matter was first raised with me at this time." He advised the shop stewards representing the FMR area that this, who were claiming the allowance, that the CBT structure covered this type of work and that any advancement in pay would come through that system. In the company's submissions that they're about - the duties you're performing are worth 100 CBT units. What do you say to this?---Well, to get into the CBT right from the start, I was one of the original ones in the plants that did the original, I suppose program and CBT training, and when I was approached about it I was informed that it was a voluntary thing, it was a way of increasing my pay, the company's benefit was to increase somebody on site with more knowledge, maybe if something happened further down the track they'd be able to go in and be competent at somebody else's job, and so it was a win/win situation for both parties. But as I say, I thought it was instructed to me it was a voluntary thing, whereas if they wished to compensate us for running the boilers it was an involuntary thing. They were saying that, yes, we expect you to do this task. They're not asking us to volunteer for the task and therefore get CBT compensation. They are asking or virtually telling us to do the job and there will be no negotiation or compensation. So to me CBT doesn't even come into it because that's a voluntary thing, whereas this is a task that's been pushed on us virtually.

PN178

And what are some examples of CBT units?---Originally in a pilot program that I did there was a basic mathematics course which we might have received - I would not be 100 per cent sure, but I would say around the 40 points or something, and that was a basic, probably year level 6 or 7 at school. There was OH&S course 1 and 2, there was a basic hygiene course. These are all set up by TAFE in Shepparton. Just off the top of my head they're the major ones I can remember actually doing. We had to go down and do them. Yes, but they were just a voluntary thing. Then you moved on to computer skills and whatever as you went up in the CBT rangings. But out of our area I think there's only James and myself, including all the FMR operators that have left now, like, I think me and James are the only ones that have really followed it through. And it was a voluntary thing.

PN179

And with the 100 units the company is saying it's worth, where do you say they got that from?---Well, to be honest I don't know. They've made up that number, I don't know how - what their structure is to work out their points. But I know the basic maths was, you know, as I say, around the 30 or 40 points, and the OH&S was probably about a little bit higher, it was around the 50 or 60, but it was only a very basic course. So if I had to make up a figure I'd be saying it would be at least double that, but then again I don't know what criteria the company use, whether they just pull it out of the air or whether they have a set criteria. They've never shown us that they have.

**** GAVIN JAMES RYAN XN MS ALLISON
PN180

I'm going to show you a document. Are you familiar with this document?---No. No, never seen it.

PN181

Do you know where it's from?---Well, I'd say going on the heading it's from Nestles Tongala, but yes. I haven't seen this document before.

PN182

THE COMMISSIONER: That's going to make the going a bit hard.

PN183

MS ALLISON: Yes. No, that's all I was looking at.

PN184

THE COMMISSIONER: Is it a document you wish to tender at any rate, Ms Allison, or not?

PN185

MS ALLISON: No, Commissioner. I think the company will be later tendering it.

PN186

THE COMMISSIONER: All right.

PN187

MS ALLISON: Now, I'm going to question you about the company document MM2. Is that still up there? I'll just take you to the first dot point there:

PN188

The FMR operator completes start up and shutdown activities of the boiler ordinarily once per week. These combined activities usually take approximately 2.5 hours to complete.

PN189

What do you say to that?---Well, from a cold start on a Sunday night, Monday morning, which I just completed this week, would take 2.5 hours in a perfect world. Actually this week it took me just on the three hours because there was a slight problem with a flame failure, so just the start up alone is probably closer to three hours, let alone the shutdown activity. And that's only - you're only talking about the one cold start that we do at the start of the week, not the probably several times we do hot starts during the week as well. So I'd say that, yes, that figure's wrong for a start. Probably it would be closer to - you'd be looking at probably closer to at least six or seven hours a week on a regular basis with hot starts, cold starts and shutdowns.

PN190

Okay. The next dot point there it says:

PN191

There are also occasions when the FMR operator has to attend to boiler alarms during the afternoon and night shift. This occurs on average about twice per week and will generally take around 10 minutes to check, and if a flame failure has occurred will take 20 minutes to restart the boiler.

**** GAVIN JAMES RYAN XN MS ALLISON
PN192

What do you say to that?---Yes, if it's a flame failure, yes, it probably would take you 20 minutes to check. That's, I would say, a common problem, but it's not the only one. We have a lot of other problems where we could be running out of water. I've had the occasion to ring Chris at home originally to find out, you know, why I was missing water, and after that, settling the problem, I learnt myself how to source out the problem, whether it be water and that.

PN193

Do you say that it would take around 10 minutes?---No. You'd be looking at closer to probably at least 10 minutes, because by the time you leave the standardisers and even head across there and then you go in and find out why the boiler has stopped, do your quick run around I suppose, check, do a visual check, go to the screen, find out any information you can off that, and then if it's a simple alarm like a flame failure then you'd start the boilers up. By the time you go through your procedure, and that's a simple one, you'd be looking at least 30, 35 minutes at least. And if it was something more serious you'd be away three quarters of an hour to an hour at least.

PN194

So it depends what - - -?---Yes, depending on what the problem is, but yes.

PN195

Look, I'm going to take you - there's an attachment, it's quite small. Commissioner, I don't know how you - our computer printout didn't print it out great, but Gavin has got a slightly clearer one. Is your's okay?

PN196

THE COMMISSIONER: Yes, mine is fine. What am I looking at?

PN197

MS ALLISON: I'm just making sure that you could see.

PN198

THE COMMISSIONER: No, the copy's fine.

PN199

MS ALLISON: Okay. Can you read that okay, Gavin?---Yes. If I concentrated I can, yes.

PN200

THE COMMISSIONER: This is the work study summary you're looking at?
---Yes.

PN201

MS ALLISON: Now, the second line there it says "Start alternate boiler," and it has an approximate time, then it has weekly there. What do you say to that, just briefly because you have touched on it?---Starting alternate boiler, is that us starting it weekly, or is that saying boiler operators?

**** GAVIN JAMES RYAN XN MS ALLISON
PN202

It's saying starting alternate boiler, and I think it's got?---And testing, we would do that now - - -

PN203

Now, it's got, you see in the first column it's got the service operators, in the second it's got FMR operators?---Yes.

PN204

So you start alternate boiler, and it's got 60 to 90 minutes?---Yes.

PN205

So what's missing there?---The service operator, he's only doing that, 60 to 90 minutes, that's a hot start that would be.

PN206

That's a hot start?---Yes.

PN207

Okay. What's missing in relation to - - -?---This is the second one down is it, start alternate boiler?

PN208

Mm?---Well, it says here that we do that weekly. We don't. We probably do that two or three times a week.

PN209

Now, it says - if you go down a bit it says - - -

PN210

THE COMMISSIONER: We don't have the original of this document, do we?

PN211

MS ALLISON: No. This one's a bit clearer, it's just that I haven't put my notes on it. Sorry, Commissioner.

PN212

THE COMMISSIONER: I'm glad your eyes are better than mine.

PN213

MS ALLISON: So it says on that document that you perform start up of alternate boiler, plant services including inspection pumps, checking chemicals and their levels, system diagnostic troubleshooting. And then if you go down to the last, it says you shut down boilers. What else on that list do you say you've done or what else is not on that list?---Well, town water pumps I have checked and had to restart. The refrigeration plant on the Monday when you do the cold start that's probably the first job you do anyway because you're pumping milk in, so that would be done every Monday morning first time you come in, and then you would check at least once or twice a day because it's not only running the pump, cooling the milk when it comes in the factory. We've got heat exchangers right throughout the plant. If we haven't got the chilled water the cream could be getting heated up and going off, or milk and that. So I would say, well, we do that at least once a shift if not twice a shift. And it says here that we don't do it at all. Compressed air, well, I as I say, as I said earlier, that's something that's done on a regular basis every shift because if we haven't got the compressors going and we've got no air going throughout the plant and the plant's run on automatic valves which are air operated, so we do continually look at that, at least twice a shift we check that.

**** GAVIN JAMES RYAN XN MS ALLISON
PN214

I note there adding up minutes there, what they say it takes, and they've listed the start up and the shutdown as per the document we went through just before so I won't go through that again. Now, I'm just going to read to you part of Anthony Johnston's statement. At paragraph 8 Anthony says:

PN215

The FMR operator role would ordinarily be classified as a grade 4 role at Tongala, however, given the history of the majority of employees in that position they were mostly graded 5 and red circled. This meant that they have been graded 5 from previous roles, however, when they moved to the FMR role the company had maintained their grade 5 classification.

PN216

Now, what do you say to that?---Well, to be honest I wouldn't knowledge because I'm not an FMR operator, I'm a standardiser, I have been for about the last 15 or 16 years, which is before all these class 3, 4, 5, 6 and all that come into operation. So maybe an FMR operator might have been doing that, but I certainly wasn't doing it because I was a standardiser, not an FMR operator, I have been for the last 15 years. It's a totally different role.

PN217

He says at 10:

PN218

The discussions I had with the FMR operators with respect to their new task concerned the level of training and support the company would provide to undertaking these tasks. I indicated to them at the time that we needed them to succeed in their new roles and not to fail the company as the site's cost competitiveness and therefore potential long term viability depended on their success, on the success of the new structure.

PN219

What do you say to that?---Well, I have never had that discussion with Tony because, as I say, maybe he was having this discussion with the FMR operators prior to them receiving their redundancy and that, but I never had that conversation with him. As I say, I was a standardiser, and we're only virtually brought into the discussion right at the very end. I had never had any discussions on it, I was never an FMR operator.

PN220

Now, he says at 12:

PN221

I did not have any discussions with the FMR operators, delegates or union officials regarding the plant service allowance for the FMR operators, nor did I have any discussions regarding reclassifying that role as a grade 6 under the Tongala production agreement as the grade 6 was quasi supervisory.

**** GAVIN JAMES RYAN XN MS ALLISON
PN222

What do you say to that paragraph?---Can you read that again?

PN223

THE COMMISSIONER: This deals with FMR operators doesn't it? Mr Ryan can't help us with that, he's a standardiser.

PN224

MS ALLISON: Commissioner, the difficulty is that through the company's written argument they're referred to as FMR operators. And so I have to not just take a blanket approach to that as FMR operators, so there's no relevance, because the company in their arguments call the three employees that we're concerned with FMR operators.

PN225

THE COMMISSIONER: All right, you go ahead. I suspect we're going to get the same answer, but anyway let's see.

PN226

MS ALLISON: Well, okay. Maybe if I put it this way. He says he did not have any discussions with FMR operators. Were there any discussions that you can describe to the Commission with standardisers?---That I had with Tony? As I say, the only time I approached him was originally when he said we would be compensated. Other than that there was nothing I can recall there was any compensation mentioned.

PN227

Okay. Now, with level 6 what's your understanding of this role, a level 6?---Level 6 previous to the restructure was probably a relief team leader that, if you had problems, you know, a standardiser in my position if you had problems we'd go to. It's also I suppose a replacement team leader. Whereas now when we're on shift we haven't got any replacement. We have actually got to start making them decisions ourselves now, so yes. I suppose in layman's terms I suppose we're doing the job of a level 6, yes, because we haven't got the supervisory role on site.

PN228

Okay, thank you.

<CROSS-EXAMINATION BY MR KARAKATSANIS [12.01PM]

PN229

MR KARAKATSANIS: Mr Ryan, Ms Allison showed you a copy of a document marked LP2, it looks like this one, the table describing the duties between the employees who are currently claiming the allowance that we've generally referred to as FMR operators and the service operator. You indicated in your evidence that the frequency of starting and stopping the boilers was not correct, and that you often started and stopped the boilers from a hot start, if I've got the terminology right?---Yes, from a hot start.

**** GAVIN JAMES RYAN XXN MR KARAKATSANIS
PN230

From a hot start more often than that?---Yes.

PN231

Was the times you started the boilers from a cold start, would that be weekly?
---Yes.

PN232

Right. And how often would you in particular, Mr Ryan, start the boiler from a cold start as per your roster?---Once in every three weeks.

PN233

Once every three weeks?---Yes.

PN234

Mr Ryan, you also made reference to a number of other checks that you made, and again I'm going to refer to this document LP2, insofar as you checked the water pumps, the refrigeration plant to check if there's chilled water, and you checked the air compressors to see if the valves are working, that's correct?---Yes.

PN235

And those checks are done to ensure the job you're doing in terms of a standardiser or an FMR operator can be undertaken without damage to product, is that correct?---Are you saying is that the only reason I do it for?

PN236

I'm asking you is that the reason you check these parts of the plant?---No, because I was instructed to do that - or not so much instructed. I was shown how to do these jobs and it was just to make my job - the reason I continued to do it is to make sure my job's a lot easier so that I'm not having to troubleshoot over in FMR because the valves are shutting down. I already know that, well, the compressors are running so therefore it's not that problem, it's an electrical problem, so therefore I can ring an electrician up to fix it.

PN237

So you do it to make your job easier as an FMR operator?---Yes.

PN238

Mr Ryan, you said during your evidence that you were working a lot more minutes per hour given the restructure, that's correct?---A lot more physical minutes, yes.

PN239

A lot more physical minutes, was that the - - -?---Yes. Well, yes.

PN240

One thing I was worrying, Mr Ryan - look, I don't mean to be impertinent about this, but what are you doing with the other minutes?---Well, it's standardising. When we were running the powder most of our work was testing or doing work on the computer, setting up the rest and that for the powder. Once that was gone we were actually doing all the liquid products and we're doing all the manual labour like the adding of the lactose and all that, yes.

**** GAVIN JAMES RYAN XXN MR KARAKATSANIS
PN241

So in other words, or could I phrase it as there's a substitution of a set of duties that you previously were doing for another set of duties, so perhaps less mental and more physical post the restructure? Or is it indeed the case that you're indeed working more minutes in the hour?---Yes, I'd say more minutes in the hour, yes.

PN242

You're working more minutes in the hour?---Yes.

PN243

The role that you're doing at the moment, Mr Ryan, I'm assuming it's a pretty critical role in terms of bringing the milk in, that side of your role. That work's being done, is that correct?---Yes, the work's being done, yes.

PN244

Right. So I guess what I'm getting at is, there's enough minutes, you know, each hour you work to fulfil the roles that you're currently undertaking?---Not really, because a great example happened this Monday morning because - not Monday morning, Tuesday morning. Because I had to go over and shut the boilers down because the operators up there had finished processing and done their cleans, I had to go over and shut the boilers down. And 1 o'clock in the morning is our first milk intake for the day, and because I was over the boilerhouse checking the boilers and shutting them down onto light load, and then by the time I moved back to FMR the trucks, two trucks had started to pump in, and we had a faulty seal on one of the silo doors and milk was going all over the floor. I have not found out the exact amount yet but I'd say it was a significant amount.

PN245

So that's because I guess there was an issue. But ordinarily if there wasn't an issue with the boiler and there wasn't a faulty seal you could perform the tasks given to you?---Under a lot of stress, yes.

PN246

Right. Mr Ryan, you've given evidence I guess to indicate that, you know, your work load and the minutes you work per hour have increased?---Yes.

PN247

Are you aware that the site has an EBA?---Yes.

PN248

You're aware that that EBA gets renegotiated every couple of years?---Yes.

PN249

Did you not think to raise these issues during the negotiation process?---No. Mainly because when I spoke to Tony - - -

PN250

Mr Ryan, I'll ask you questions, sorry?---Sorry.

**** GAVIN JAMES RYAN XXN MR KARAKATSANIS
PN251

Mr Ryan, in point 13 of your statement you say that you thought the site would shut down, is this correct?---That's correct, yes.

PN252

Did Mark McWhirter, the factory manager at the time, or Peter Webber, the technical director, who was giving a lot of the briefings at the time, advise you that the site was going to shut down?---No. They kept saying that they would keep updating. At this stage they didn't know whether it was going to close down or keep running, that was an issue they were still looking at.

PN253

So it was one or the other, the site was to be a going concern or the site would shut down?---Well, they wouldn't confirm or deny it was going to shut down or go on.

PN254

So it was one or the other?---Yes. It was up in the air, yes.

PN255

You say that the company asked employees to take up extra duties to get the plant through the short term. I think they were your words in 13. Let me just double check.

PN256

THE COMMISSIONER: That wasn't part of Mr Andrew's statement was it?

PN257

MR KARAKATSANIS: I think it's in both statements, Commissioner. Maybe I'll come back to that. I'll withdraw that last question.

PN258

Mr Ryan, part of your evidence today you indicated that you had a conversation with Mr Tony Johnston and that he advised you that you would receive compensation of around $150 per week for your additional duties, is that correct?
---That's correct.

PN259

Also through your evidence, Mr Ryan, you've indicated that while you don't agree with this document completely there are some things that you say you do?---Yes.

PN260

But it doesn't seem through your evidence that they're quite as extensive as the roles that the service operator does. How is it the case that Mr Johnston would have put a figure of $150 per week when the plant services allowance itself is about $75?---Well, when I spoke with Tony there was no mention of a plant service allowance. I don't even know if Tony had even looked it up or found out. It was just a conversation we had in his office. And I said to him, I said, well, what will we be looking at compensation? Because I'd say to him that, you know, it was going to be a bit involved in it. And that was just a figure he come up with. Where he got it from, Michael, I have no idea.

**** GAVIN JAMES RYAN XXN MR KARAKATSANIS
PN261

Right, okay. Mr Ryan, you also say that the CBT structure, just going back to this issue, is a voluntary thing and that, in other words, if you wanted to participate in the structure you could participate and you could get a pay increase?---Yes.

PN262

Is that correct?---Yes. That was later explained, yes.

PN263

And you rejected the proposal from the company to participate in the CBT structure and therefore - - -?---No, no. I've done the CBT.

PN264

But in terms of resolving this dispute, when it was put to you that the company's proposal to resolve the issue is through the CBT structure, this was not a proposal that you were comfortable with, is that correct?---That's correct, yes.

PN265

Right. So you opted out of that structure, you disagreed with the structure?---Yes.

PN266

Mr Ryan, did you ever seek to have the CBT structure amended in the agreement?---No.

PN267

Mr Ryan, I'll just bring you back to a question I asked earlier about the future of the plant. In point 8 - I should correct my earlier statement - you say:

PN268

Everyone believed the site would close down within six months so we though we were doing the company a short term favour.

PN269

Mr McWhirter or Mr Webber never indicated to you that you were doing these roles on a short term basis, is that correct?---No, Mr Webber, no.

PN270

And Mr McWhirter, the factory manager at the time?---He never come out and said it, but we got the impression that was - - -

PN271

So that was your assumption?---Yes.

PN272

Right, okay. So it was never sort of, you know, you weren't tricked into doing the work by the company?---No.

PN273

You wouldn't say that?---No, I wouldn't say that we were tricked into doing the work, no. It was just something that we were going to update later on.

PN274

Thanks, Mr Ryan?---That's all right.

**** GAVIN JAMES RYAN XXN MR KARAKATSANIS
PN275

Nothing further, Commissioner.

PN276

THE COMMISSIONER: Anything further in clarification, Ms Allison?

PN277

MS ALLISON: Just a few questions, Commissioner.

<RE-EXAMINATION BY MS ALLISON [12.15PM]

PN278

MS ALLISON: When did you commence refrigeration checks?---It would have been when we first started checking the boilers and starting up, it would have been the first week in October when I first - the first time I would have done it would have been with John Andrews, and then on a regular basis at start up it would have been with Les Perkins in May.

PN279

And prior to that who did it?---The refrigeration, Anthony Haywood and Chris I think were looking after - - -

PN280

And were they receiving the allowance?---I believe so, yes.

PN281

And when did you star the air compressor checks?---Probably right from day one when I was learning, first learning off John Andrews.

PN282

When is that?---October.

PN283

In October last year?---Yes.

PN284

I guess if you can just explain by working more minutes in an hour?---Well, just, you know, the overall run of it, like, the testing is more involved in the liquid side of it and it's - you're probably doing more tests on a - in a shift time I suppose. And it's got worse since we've gone to a five day week because we're still putting out the same or a very similar amount of liquid products that we used to spread over a seven day period. We're now doing exactly the same amount of tests, if not more with checks over a five day period. So when I say we're working more minutes we're probably doing a lot more testing of the products in a condensed period. Not physically doing more work, but yes, doing more tests.

PN285

Now, you were asked why the issue of allowance or compensation or CBT was not raised during enterprise agreement negotiations. Enterprise agreement negotiations occurred in January. Why wasn't it raised?---Well, the reason, I just understood after talking to Tony that it was something that was going to be looked into. Yes, I just took Tony's word basically, yes. That was the reason why.

**** GAVIN JAMES RYAN RXN MS ALLISON
PN286

Okay, thank you.

PN287

THE COMMISSIONER: I've got no further questions, so thank you. You're excused, Mr Ryan.

<THE WITNESS WITHDREW [12.17PM]

PN288

THE COMMISSIONER: In light of the time this might be the convenient time to - did you have any witnesses, I'm sorry?

PN289

MS ALLISON: No, Commissioner.

PN290

THE COMMISSIONER: No. And that's the evidence effectively that you want to introduce? It might be convenient to take the luncheon break now and then take the evidence from the company after lunch. I've got another matter on at 4 o'clock today that involves your union and some final submissions in relation to a Murray Goulburn issue at Maffra, so I'm anxious to make sure we get the time best utilised. We might resume at quarter past one.

PN291

MS ALLISON: Thank you, Commissioner.

PN292

THE COMMISSIONER: We'll adjourn on that basis.

<LUNCHEON ADJOURNMENT [12.17PM]
<RESUMED [1.19PM]

PN293

THE COMMISSIONER: Mr Karakatsanis?

PN294

MR KARAKATSANIS: Thank you, Commissioner. Commissioner, again I'm assuming that you've read the outline of argument in the witness statements issued by email on Tuesday.

PN295

THE COMMISSIONER: Yes.

PN296

MR KARAKATSANIS: I don't plan to open with a full recount of those outlines, but I thought I'd just highlight some of the main points, Commissioner, and refer to other arguments in closing.

PN297

THE COMMISSIONER: Sure.

PN298

MR KARAKATSANIS: Commissioner, the applicant in this matter has asked the Commission to make an order that the employees either receive the allowance specified in the Nestle Australia Limited Tongala Agreement under clause 14.5, or they be given an increase in level to a level 6. Commissioner, we will show through evidence brought by three witnesses today that that in fact is not an appropriate outcome in these circumstances, and in fact is contrary to the agreement under which we both operate under.

PN299

The allowance, as we have seen through Mr Andrew's evidence, has in the past only been paid to those who are qualified and certified as boilerhouse operators. The allowance has only also been paid having regard to the history of the site to those employees who have had the responsibility of looking after other areas of the plant as well. Commissioner, further pertaining to the agreement, appendix B of clause 4.4 of the agreement also explicitly makes the undertaking we say by the NUW that the allowance is maintained having regard to the history of the position. So we don't dispute the allowance exists or that it should be paid to certain employees. But it should be paid having regard to the history of the position, and that is, who has it been paid to in the past and on what terms have those employees operated under that entitles them to that payment of the allowance.

PN300

The union in our view under clause 4.4 of appendix B also acknowledges that they won't seek to in the future establish any other allowances on site that are already recognised by the CBT system. And we will show today through evidence that the competency based training system does actually recognise the skills associated with monitoring boilers. There's been evidence put today that there is little difference between the John Thompson boilers or what can commonly be called limited attendance boilers, and the Maxitherm boilers, which otherwise can be described as unattended boilers. We believe that there is a difference between these boilers, and we'll be demonstrating that through evidence.

PN301

Commissioner, there has also been a lot of evidence from the applicant in terms of the increased minutes per hour that people work in a role. We will give evidence to show that since the October restructure there has been a number of processes in that particular area that have been stopped, and that as a result and to justify full time roles in that area additional tasks and responsibilities needed to be given. And not to get too scientific about this, Commissioner, but to utilise the labour. In May 2006 the site again restructured going to a 24 by five day operation, and the boilers now are maintained by one service operator. And we acknowledge the three, what we would call FMR operators, but essentially the three employees in question here today who are applying to receive the allowance, do in fact do some tasks associated with boilers. I don't think that's in dispute. But they have no responsibility in terms of other areas of the plant, and that is what we say is a key issue.

PN302

Nestle ordinarily, or management at Nestle at Tongala do not ordinarily require the employees claiming the allowance to do anything other than the tasks indicated in the document marked LP2, which is also attached to the outline of this argument, and we say that that document indeed, and what we ask these employees to do in fact highlights the difference in responsibility, skills, knowledge and tasks that both sets of employees, that is the service operator in Mr Chris Andrew, and what I'll describe as the FMR operators, actually undertake at the site.

PN303

We will show that a study also attached to this document marked MM2 is a study conducted for the purpose of this dispute and actually demonstrates the amount of time spent, granted over a limited number of shifts, that the FMR operators undertake with respect to plant. In short, Commissioner, we believe the CBT structure does provide the appropriate avenue for advancement in this regard. There was no - the agreement itself was renegotiated recently, that is in November, December. There was no issue raised at the time despite the fact that the plant restructured in October 2005, and the FMR operators were undertaking those additional roles since that time. The agreement was negotiated after that change took place.

PN304

We will demonstrate that the company received no claim from the union in terms of additional compensation for these roles, nor in fact did they require or ask for an additional allowance. They did get of course the wage increase that all employees on site got. The outcome, Commissioner, that we're seeking would be an outcome based on the CBT structure and would provide for a wage increase of between at least we say $11.80 and $16.60 per week to the employees in question, depending on how many points they sit on at the moment. And again we don't disagree with the applicant's submission that that should be backdated from 1 October 2005. I think that's one area that we can say we're in agreement on.

PN305

Commissioner, if it pleases, at this stage I'll introduce my first witness.

PN306

THE COMMISSIONER: Good, thank you.

<MARK DAVID MCWHIRTER, SWORN [1.27PM]
<EXAMINATION-IN-CHIEF BY MR KARAKATSANIS

PN307

MR KARAKATSANIS: Mr McWhirter, I'll hand you up a copy of your statement. Mr McWhirter, is this a copy of the statement that was emailed to you on Tuesday, 15 August?---Yes.

PN308

And, Mr McWhirter, do you say that the contents of this statement are true and correct?---Yes.

PN309

Thank you. Can I take you, Mr McWhirter, to the attachment MM2 to your statement. Mr McWhirter, how was this document put together? Was it through sort of assumptions, guesswork? How was it put together?---It was based on observations, of studies done, and discussions with operators in the area.

PN310

Over what period did these observations take place?---For the guys in FMR it was over a three shift period, and for Chris it was done over two half days or thereabouts.

PN311

So when we say the guys in FMR, just to clarify, they are who?---Sorry, Gavin Ryan, Terry - sorry, I've got a brain freeze.

PN312

Take your time?---Gavin Ryan, Terry Anderson and John Street. But having said that the time that was spent was with Gavin and Terry predominantly.

PN313

Right. So it’s Gavin Ryan who gave evidence today, okay. I'll take you to the attachment to MM2, Mr McWhirter, and I won’t spend too much time on this because we’re having some difficulty reading the attachment. I guess my first question is couldn’t even make it any bigger, but anyway. Mr McWhirter, why in the attachment under the FMR operators are some of the columns blank with respect to plant outside the boiler such as town water, refrigeration, compressed air, trade waste? Why is there no time recorded in those columns?---Well, firstly because that wasn’t part of the scope of the study and secondly during the study there wasn’t activities recorded against those activities, or times recorded against those activities.

PN314

So over the period where these observations were made which, as you say, were over a three shift period for the whole shift?---Yes.

PN315

There was not one time, not one minute, that these employees were in those areas specified specifically? Again, I'll make this clear, town water, refrigeration, compressed air, trade waste?---Not to the best of my knowledge, no.

**** MARK DAVID MCWHIRTER XN MR KARAKATSANIS
PN316

Right. Mr McWhirter, is this something that surprises you, the results of this study insofar as there is no time beside those particular tasks and those areas of plant?---No.

PN317

And why is that the case?---Because this is not something in the scope of the duties of the FMR operators that we’ve asked them to do.

PN318

So can you clarify for me, Mr McWhirter, and for the Commission what roles you require the FMR operators to undertake with respect to plant?---Really only around the boilers.

PN319

Right?---Monitoring the boilers, attendance to the boilers on alarms and starting and stopping the boilers.

PN320

Mr McWhirter, have you seen the document marked LP2, which I don’t think is part of your attachment? I can hand it up for you if you like?---Yes, I have, yes.

PN321

Mr McWhirter, this document outlines the tasks that the company says are undertaken by the service operator on the column on the left, or the two columns on the left, and the tasks done or required to be done by the FMR operators represented by the two columns on the right, with respect to plant I might add. Is that what you require of the FMR operators?---Yes.

PN322

Mr McWhirter, can I now take you to the attachment marked MM1 as part of your witness statement. Can you explain this email, Mr McWhirter, for the Commission?---Yes. The email’s an extract out of a document that we wrote to give the factory some direction and understanding about what people’s expectations of future operators in the plant were going to be after the restructure. This was given to David Newman, who was the FMR line manager, to deliver to the guys and basically to give them an understanding of how things would be and give them an understanding that if they didn’t want to be a part of that ongoing business I guess that they could apply for redundancy. So it was - - -

PN323

So there were a number of redundancies available on the site at the time?---Yes.

PN324

Right. So, Mr McWhirter, am I making it too simple by saying that the only thing we required of the FMR operators in terms of plant is as you indicated there, to monitor the boilers?---Yes.

PN325

Right. There was no expectation in terms of other areas of plant, air compressor, refrigeration, et cetera?---No.

**** MARK DAVID MCWHIRTER XN MR KARAKATSANIS
PN326

There’s been some evidence before this Commission, Mr McWhirter, that the FMR operators and, in particular, Mr Ryan has given evidence on his own behalf that he actually conducts some checks on those areas of plant such as checking the air compressors, checking the refrigeration plant to see if there is enough chilled water in the plant. Is that something that you expect of employees at the FMR in the FMR role as it has been restructured?---No. It’s not something we expect, but I will pass a comment that it’s admirable and I guess that shows the positive attitude that we expect from our team.

PN327

Mr McWhirter, as factory manager if something went wrong with the air compressor plant, or if something went wrong with the refrigeration plant, who would be your first port of call to explain the situation?---It would be Chris Andrew or Les Perkins, probably in that order.

PN328

Right. So in your mind the person who has responsibility for those areas of plant is Mr Andrew and then Mr Perkins in that order?---Yes.

PN329

Mr McWhirter, have you personally or through your line manager, Mr Newman, prior to this dispute had any complaint regarding the workload of the FMR employees again post the restructure?---No, I have not.

PN330

So Mr Newman or none of the employees involved in the area have come to you prior to this dispute to say we’re simply working too hard?---No.

PN331

Mr McWhirter, it’s been raised in evidence by Mr Andrew and Mr Ryan that they believe that the Tongala factory would shut down after October 2005 restructure. Was this the message at the time?---No, definitely not.

PN332

What was the message?---The message was that a decision was going to be made within the time frame that was explained and that our approach was to do everything that we could within our control to influence that decision in a positive manner. Optimistic.

PN333

So you’re optimistic that the plant was going to be a going concern?---I was optimistic, yes.

PN334

Mr McWhirter, Mr Ryan has advised the Commission that his role after the removal of the powdered milk from manufacture at Tongala has seen a significant drop in milk production. This is through his witness statement. But he also says that his role now is far busier despite the significant drop. Can you explain this for me?---Well, prior to the restructure Mr Ryan was a standardiser, purely a standardiser. So he did standardisation of the milk production, both batches for liquids and powders. After the restructure the role was combined with the FMR role so he took on the duties of FMR and the testing relating to the powders was gone and also the FMR duties related to the powders plant were also gone.

**** MARK DAVID MCWHIRTER XN MR KARAKATSANIS
PN335

Right. Has the testing for liquids increased since the powder’s closure in October as Mr Ryan has indicated?---No.

PN336

Have the production batches changed since the powders closure as Mr Ryan has indicated?---No.

PN337

Mr McWhirter, Mr Ryan has indicated and given evidence today, as I’ve said before, that his role is far busier since the restructure and that in some instances the factory suffers as a result. How would you see the new structure working in terms of that role in particular? How is the factory performing, I should say, with respect to that role in particular?---As far as I can ascertain the factory is still performing at the level we require.

PN338

So one other question, Mr McWhirter, and this is regarding the classification structure at Tongala. What is the highest level that an employee under the production agreement can attain who is not performing supervisory work?---Level 5.

PN339

And do you expect the FMR operators to undertake any supervisory duties?---No.

PN340

Do they have any responsibility for any other employees on the site?---No.

PN341

Are you aware what level Mr Ryan is at this stage at the Tongala factory?---Yes, he’s a level 5.

PN342

Right. Mr McWhirter, there’s been some evidence today that with Mr Andrew in the Commission that if the boiler stopped or if he went on leave it would cause difficulty. What would happen if the boiler stopped and Mr Andrew wasn’t available to resolve the problem?---Well, we have two boilers on site so we have a contingency boiler there. We would expect that the other boiler be started and if the guys can’t get the other boiler started then they’d call Les Perkins.

PN343

And it would be the FMR operators who would start the second boiler?---Yes.

PN344

And so Mr Perkins would be called upon if Mr Andrew wasn’t available?---Yes.

PN345

Right. With the FMR operators now undertaking the task of starting and stopping the boiler, changing over the boilers where required, monitoring and adjusting the boilers’ operational mode to suit the loads, if something went wrong with the boiler who would be the FMR operator’s first port of call in terms of being responsible for that area of plant?---Chris Andrew.

**** MARK DAVID MCWHIRTER XN MR KARAKATSANIS
PN346

Who would be responsible, Mr McWhirter, if there was something wrong with the air compressors at first instance?---The first port of call would be Chris Andrew.

PN347

Trade waste?---Chris Andrew.

PN348

What other areas of the plant is Mr Andrew responsible for?---All the services. Refrigeration, the town water articulation, cooling towers.

PN349

So you wouldn’t require - sorry, Mr McWhirter, have you finished? So you wouldn’t require the FMR operators to be responsible for any of those piece of plant?---No.

PN350

Right, okay. Nothing further at this stage.

PN351

THE COMMISSIONER: I'll mark that witness statement as an exhibit.

EXHIBIT #K1 STATEMENT OF MARK DAVID MCWHIRTER

PN352

THE COMMISSIONER: Ms Allison.

<CROSS-EXAMINATION BY MS ALLISON [1.44PM]

PN353

MS ALLISON: Thanks, Commissioner. Thanks, Mr McWhirter. I’ve just got a few questions. If I can take you to paragraph 5 of your statement. You talk in the last sentence that:

PN354

The fact the site would need additional resources for this area in addition to the plant service operator where there would also be reduction in personnel.

PN355

Now, by the plant service operation you’re referring to Chris Andrews, correct?
---Yes. Also we had a fitter in the system that also monitored the plant services.

PN356

And by its service operator duties you’re referring in that document LP2, that was a chart shown to you, you’re referring to the duties in the left hand column?
---Yes.

PN357

Prior to October no one person performed all those duties, did they?---No.

PN358

Now, in paragraph 9 of your statement you say you asked Mr Newman whether employees in the FMR area would be able to provide coverage on a limited basis. It then goes on to say that Mr Newman said they would and he organised a meeting with them. And you would be aware that all bar one FMR employee has been made redundant?---Yes.

**** MARK DAVID MCWHIRTER XXN MS ALLISON
PN359

If I can take you to LP2 you say the duties outlined in this document are the ones that you would require the FMR operators to do. Mr McWhirter, with respect I’d suggest that as being the production manager sometimes you might not have a full understanding of every element of a job that has to occur to make sure that production keeps running and I’d suggest to you in answering the next questions about what the FMR employees are required to do and not required to do, that you consider it carefully because the FMR representatives are obviously here and if you say they are not required to do it, they won’t. Now, with that document in the two columns you’ve got start boilers under both columns. You are aware that the process the three employees - Commissioner, I’m just trying to think of a term to refer them to. FMR employee is the wrong phrase.

PN360

THE COMMISSIONER: You’re talking about the three people?

PN361

MS ALLISON: Yes, that’s right.

PN362

THE COMMISSIONER: Yes, I understand that.

PN363

MS ALLISON: So if I refer to that, that’s what I mean.

PN364

THE COMMISSIONER: Yes, fine.

PN365

MS ALLISON: You are aware that the start up process that the FMR employees perform, being a start up from cold, is quite a different process to starting up the boiler from hot?---Yes.

PN366

And you are aware that it’s a lengthier procedure and has a lot more elements to the procedure?---It’s lengthier, yes I’m aware of that and I’m aware it’s more onerous, yes.

PN367

Yes. Similarly with completely shutting down the boiler is a different activity to stopping a boiler from not completely shutting down the boiler?---I am not aware of all the details around shutting down a boiler. I’ve been led to believe that the shutting down is relatively simple.

PN368

Okay. Well, we’d suggest - - - ?---That shows my lack of understanding on that issue.

PN369

Okay. So it would be right to say that you are not completely familiar with the ins and outs of boiler operating?---I can’t operate a boiler if that’s what you’re asking. No, I can’t.

**** MARK DAVID MCWHIRTER XXN MS ALLISON
PN370

Now, in that list I note that on the right hand side there is no - the FMR employees currently perform daily inspections of the boiler. That is something that they have been required to do from day go and I'll note that on the right hand column there is no reference to making daily inspections where there is under Mr Andrew’s column. Do you say they’re not required to make daily inspections?---To my level of understanding the inspections on an unattended boiler need to be made 24 hourly which Chris Andrews does on a daily basis.

PN371

Well, I put to you that the FMR employees make at least one, if not two, daily inspections and indicate that that is perhaps an area where you are not familiar with the daily running of the boiler and the requirements?---That’s possible, but that wasn’t actually indicated in the results of the workload study that I saw.

PN372

We’ll go to that document in a moment. I notice there also that there is no reference in the right hand column to troubleshooting and the evidence has been put that the FMR employees perform regular troubleshooting. Do you not require them to perform troubleshooting?---Well, attending to alarms the feedback that I’ve had is generally two to three times a week that they may need to attend to alarms and perhaps troubleshoot.

PN373

Okay. It’s been put in evidence that the FMR employees perform refrigeration checks and this has to occur before production starts on night shift on Sunday. As you’d be aware Mr Andrews is not around at that time. Do you say that is not required?---No, I don’t believe so. We have an ice bank. We have the chilled water plant set up so that we do have an ice bank.

PN374

Okay. It’s been put in evidence that in periods when Chris is not there as well when air compressors are checked weekly and when required work is done on them including restarting them. Do you say that that’s not required?---That’s not something that we’ve asked the guys to do.

PN375

MR KARAKATSANIS: Commissioner, I’m going to have to ask about this line of questioning, whether Ms Allison is establishing what’s going to happen at the plant from hereon in after this dispute, or whether she’s actually asking questions relevant to her claim.

PN376

THE COMMISSIONER: I’ve got no idea, but I’m interested in the line of questioning and I’m happy for it to proceed.

**** MARK DAVID MCWHIRTER XXN MS ALLISON
PN377

MS ALLISON: You’d be aware that if the air compressor shut down and wasn’t restarted the entire plant would shut down?---Yes.

PN378

And that that would mean if you were reliant on Mr Andrews coming in that loss of thousands and thousands of dollars in production?---It’s possible, depending on what stage of production we’re at.

PN379

Okay. Now, I just want to deal with the issue of CBT units. Now, you’d be aware that when the employees were first required to attend the boiler they were not offered the job as part of any CBT unit training?---That’s right.

PN380

You’d be aware that they were not given the option of whether they wanted to train or not?---No, but it was made clear that that would be a part of their ongoing responsibilities in that area.

PN381

THE COMMISSIONER: Who’s responsibility?---The FMR operator.

PN382

MS ALLISON: CBT units are a way that employees can increase their base level through voluntarily taking up additional training. That’s correct, isn’t it?---Yes.

PN383

But if, let’s say if I look at the agreement and you have a level 2 forklift driver and you require them to perform trade waste operator duties, then the appropriate way of dealing with that matter would be to reclassify them at the correct duty, isn’t it? That’s not something that can be made up through CBT units?---Sorry, I don’t quite understand.

PN384

So what I’m putting to you is that while CBT units are away that employees can gain additional money. So if you’re a level 3 there will be a cap on how many CBT points you can earn, correct?---Yes.

PN385

And you can earn those by taking up a maths course, taking up an occupational health and safety course and you can get up to the cap. However, as a level 3 you can’t become a level 5 trade waste operator by CBT units. You would actually be reclassified, if the company required you to perform those duties, you would be reclassified and receive a level 5 wage?---You’d be retrained and assessed against that position, those tasks.

PN386

That’s right?---Yes.

**** MARK DAVID MCWHIRTER XXN MS ALLISON
PN387

So what I’m putting to you is that CBT units are not about recognising substantial and significant change in duties and responsibilities, are they?---I believe they are.

PN388

Well, I put to you that the example that we’ve just used of the forklift driver being retrained to another level illustrates that they’re not?---But there would also be CBT modules, competencies attached to that position.

PN389

That’s correct, but there’s no way that a level 3 just by doing CBT units, there’s no way that a company could just ask someone a level 3 to perform trade waste duties and just pay them through CBT units, is there? That would be against the agreement?---Yes, they’d be at another level once they were assessed incompetent, yes.

PN390

THE COMMISSIONER: Is it possible to go through any of the classification levels simply on the basis of the CBT units, or would you have to be reclassified?
---Well, according to the EBA different positions have different levels. So really it’s about being competent in that position and then leading up to the level.

PN391

So it’s not possible to move from one level to another simply on the basis of units that you’re able to accumulate to get you up to another level? You’ve got to have the skills and competencies of the appropriate level?---Yes, that’s correct.

PN392

Yes.

PN393

MS ALLISON: Just in relation - I withdraw that. Okay, now in paragraph 18 of your statement you say:

PN394

It was my view that it would be unfair of the FMR operators to benefit from an allowance that covered a greater area and greater responsibilities than their task relating to the boilers gave them.

PN395

Now, you’re aware that Mr Andrews until October 2005 received the allowance for performing boiler and other duties once or twice a year?---Yes.

PN396

Yes. Now, I put to you that if you can receive the allowance for the responsibility of performing those duties once or twice a year it’s unfair not to receive that allowance for performing those duties on a regular basis?---But we’re not talking about the same duties.

**** MARK DAVID MCWHIRTER XXN MS ALLISON
PN397

Well, we put to you that even if we go off your diagram it’s unfair that an employee would receive it once or twice a year, or could receive the allowance ongoing for performing the full duties once or twice a year, but not receive it for performing the majority of the duties regularly?---Again I question the word majority.

PN398

Okay. Well, we’re putting that to you as our position, so that’s okay.

PN399

THE COMMISSIONER: That’s for submissions later on I suspect?---But the other comment I would make is that Chris actually got the allowance when the FEDFA guys went across to the NUW. So he’s one of the original that there was.

PN400

MS ALLISON: But there were also NUW employees who later received that allowance, correct?---That’s right.

PN401

Yes. Now, you say at 19 you talk about your study at MM2. I just want to go briefly to that study. Now, you mentioned - the first thing I put to you is that in evidence - sorry, do you have that study in front of you?---Yes.

PN402

In evidence it was put both by Mr Andrews and by Mr Ryan that that first dot point relating to the start down and shut down of activities and recording it at 2.5 hours was incorrect. Do you have any comments to make on that?---That’s the time that came out of the study.

PN403

And would the study have - when you said it happened over the three shifts?
---There was one start up involved with that.

PN404

Right. And was it during the week?---No, it was a Monday morning.

PN405

So it would have been a heated started up?---No, it was a cold start up.

PN406

So Sunday evening?---Sorry, Sunday night, Monday morning, yes.

PN407

Sunday night? Well, we put to you that that figure is incorrect?---That’s the data that I was provided.

PN408

I understand. And I want to take you to the work study summary. Now, in going through that when Michael asked you why there were the blank spaces next to the FMR employees under a number of those areas you’d said that that was not a part of the scope of the study, correct?---That’s right.

**** MARK DAVID MCWHIRTER XXN MS ALLISON
PN409

So the FMR employees were not asked about those particular areas?---Not - well, I don’t know. That wasn’t on the data that I received.

PN410

And if it was not part of the scope of the study we assume they weren’t asked?
---There’s every chance it wasn’t asked.

PN411

Okay, thank you. And I’m right in saying that that study focuses purely on time, correct?---Yes, times around those activities, yes.

PN412

It does not focus on skills?---No.

PN413

Does not focus on responsibilities?---No. It’s purely around times around the tasks.

PN414

Okay. In paragraph 20 you say that the study shows the plant service operator spending an equivalent of 14 days per month versus what you say is the three FMR operators spending an equivalent of three days and we have suggested the timing might be otherwise. But in relation to the 14 days versus the three days you are aware that prior to October Mr Andrews received the allowance for performing the duties in that list only two times a year, or two days a year?---Yes.

PN415

Thank you. Now, you said that Mr Andrews was responsible for the boiler and he was the first port of call if there are any issues?---Yes.

PN416

And failing that it would be Les. Now, both Mr Andrews and Mr Perkins are here today. Terence Andrew[sic] is responsible for the boiler today, isn’t he?---Terry Anderson, yes.

PN417

Yes, an FMR employee?---Yes.

PN418

Yes. Thank you.

PN419

THE COMMISSIONER: Right. Did you have anything you wish to clarify,
Mr Karakatsanis?

PN420

MR KARAKATSANIS: Yes, I do Commissioner.

PN421

THE COMMISSIONER: I thought you might.

**** MARK DAVID MCWHIRTER XXN MS ALLISON
PN422

MR KARAKATSANIS: I'll try and keep it brief.

PN423

THE COMMISSIONER: No, that’s all right.

<RE-EXAMINATION BY MR KARAKATSANIS [2.06PM]

PN424

MR KARAKATSANIS: Mr McWhirter, who prior to October 2005 - or let me rephrase. What role prior to October 2005 received the plant services allowance?
---The boiler attendants and the two services operators, trade waste operators.

PN425

Did those employees have responsibility for plant outside the boiler?---Yes.

PN426

All of them?---Yes.

PN427

Right. Did anyone prior to October 2005, or indeed up to the present day, receive the allowance purely on responsibility for tasks around the boiler?---No.

PN428

Mr McWhirter, there’ve been a couple of questions by Ms Allison regarding LP2. Are there any substantial duties not covered in the right hand column with respect to the three employees who are making the claim for the allowance and other things today?---No, I don’t believe so.

PN429

So because you haven’t mentioned anywhere that they need to wear a uniform to work, you wouldn’t expect them to turn up naked to work, would you?---No, I would not.

PN430

Right. So pretty much the majority of duties in that column are what you would expect, and perhaps there are some ancillary issues - - -

PN431

MS ALLISON: Excuse me, Commissioner.

PN432

THE COMMISSIONER: Yes?

PN433

MS ALLISON: He’s been quite leading and I’ve been pretty lenient until recently, but I think if you can just watch your style of questioning please?

PN434

MR KARAKATSANIS: Mr McWhirter, in terms of other areas with respect to boilers is there any major task that is not covered by that study for the FMR operators?---No.

**** MARK DAVID MCWHIRTER RXN MR KARAKATSANIS
PN435

Mr McWhirter, the study conducted you say observed the time taken by the employees. Ms Allison asked questions regarding the scope of the study. How was the study conducted in terms of time?---It was basically through observation and discussion with the operators.

PN436

Over what period of time did the study take place? Over what period of time did someone look at the task performed by the operators? I know I’ve asked this question before, I just want to clarify it?---Well, it’s three eight hour shifts.

PN437

THE COMMISSIONER: So it was in a 24 hour period from the midnight - - -?
---No. No, they were on three separate days.

PN438

We weren’t clear about that. I wasn’t sure whether you meant different days or in a 24 hour period covering three shifts?---No, they were on different days.

PN439

Right. So one of the days was the start up?---One day was - two days was the start up. It was two days of start up, one day of shut down. No, sorry. One day of start up, one day of just night shift, midnight until eight in which it was normally mid week operation, and one day of shut down.

PN440

Yes, okay. So beginning, middle, end of the week?---Pretty much, yes.

PN441

MR KARAKATSANIS: And the study covered the entire shift an FMR operator would work. Is that correct?---Yes.

PN442

And example of?---Yes.

PN443

So the study simply - what did the study reflect, Mr McWhirter?---Well, the study reflected that the boiler associated, the requirements of the FMR operators is substantially less that the plant services work that Chris does.

PN444

Right. Mr McWhirter, you were asked a question in terms of who has the responsibility regarding the boiler today while Mr Andrew and Mr Perkins are here. And who was that again?---It would be Terry Anderson I believe is on day shift.

PN445

Who would have responsibility for other areas of the plant today?---The operator of the area.

PN446

Would it be Mr Anderson?---No.

**** MARK DAVID MCWHIRTER RXN MR KARAKATSANIS
PN447

Nothing further, thank you.

PN448

THE COMMISSIONER: I’ve just got a couple of questions that I just want to be clear about. You’ve fixed me up with one of them in terms of this three shift period. If we go to LP2, which sets out these duties, I want to be clear again from the observations that you made in this study in all of the areas that are blank in the FMR operators column, they weren’t observed or there was no indication given by any of those operators that they performed any of the functions in those blank areas during the course of the study?---Not in the data that I received.

PN449

Right. All right, yes. That’s fine?---I didn’t actually do the study myself.

PN450

I accept that, I accept that. Has there been any review at all of the duties performed by the FMRs since the restructure?---Do you mean as in a study done?

PN451

Well, I took it in your earlier evidence that all that was required of them, and I think there was reference made to it in your statement and I should have marked it as to where you said it, but as I understood it, and clarify me if I’m wrong, what you were asking these people to do was simply to monitor what was happening during the course of the shift and if there was anything that needed some attention then Mr Andrew would be the first port of call and beyond that you weren’t asking them to perform any other duties?---No, that’s right.

PN452

That was what the intention was at the time of this new restructure?---Yes.

PN453

And there's not been a review since that’s occurred until today to see if in fact that’s what’s happening?---No. No, there hasn’t.

PN454

The reason I ask you is that we’ve had evidence today from people that say in reasonably substantive terms that on a daily basis they’re performing functions that go beyond monitoring. They are in fact performing work in other areas, testing and making adjustments where required, up to a point where they have to call in either technical assistance through the fitters or the electricians, or
Mr Andrew and that that’s on a fairly regular basis every week?---Sorry, in terms of the boilers or the refrigeration, sir?

PN455

The FMRs?---But sorry, which tasks?

**** MARK DAVID MCWHIRTER RXN MR KARAKATSANIS
PN456

I'll review the evidence when I have to write my decision, but it seemed to me it was across a fair range of areas including the cooling towers, air compressors and other functions associated with the boiler. Now, that’s either right or it’s not. We’ve had evidence to that extent?---And the evidence I have is that isn’t the case. So the data that I received from the workload study says that isn’t the case.

PN457

And that’s all you’ve got? This study that was done, there’s been no other review?---No. That’s exactly right. And more to that, we’ve never asked those guys to take on that responsibility.

PN458

All right. And I think everybody can hear what’s being said when you say that, to which Ms Allison made some reference earlier and Mr Karakatsanis picked up on. So we’ve all got it noted in our little black books now. I think that answers the questions. That was the other thing, in relation to level 6 it’s only people who have supervisory responsibilities that get the level 6?---Yes, effectively, yes.

PN459

I think that was all. Yes, all right. Thank you, that’s all. You’re excused?
---Thank you.

<THE WITNESS WITHDREW [2.17PM]

PN460

THE COMMISSIONER: Another witness?

PN461

MR KARAKATSANIS: Commissioner, I call Mr Les Perkins to give evidence.

<LESLIE PERKINS, AFFIRMED [2.18PM]
<EXAMINATION-IN-CHIEF BY MR KARAKATSANIS

PN462

MR KARAKATSANIS: Mr Perkins, is this the same statement that was emailed to you and the Industrial Relations Commission on Tuesday, 15 August this year?
---Yes, it is.

PN463

And are the contents of that statement true and correct?---Yes, they are.

PN464

Thank you. Mr Perkins, I’m going to hand you now a document that I want you to have a look at and perhaps explain to the Commission what that document is.

PN465

THE COMMISSIONER: Well, as soon as you do that one loses an associate.

PN466

MR KARAKATSANIS: Mr Perkins, can you explain that document for the Commission?---Yes, Commissioner. This is a part out of the Tongala’s competency based assessment system and it covers the boiler attendant requirements. My understanding is that this was established when we had limited attendant boilers on site and it covers a full range of skills that we would expect the boiler attendant to have to run the limited attendance boiler.

PN467

THE COMMISSIONER: You wish that marked I take it?

PN468

MR KARAKATSANIS: Yes please. Sorry, Commissioner.

EXHIBIT #K2 DOCUMENT REGARDING TONGALA’S REQUIREMENTS FOR BOILER ATTENDANT

PN469

MR KARAKATSANIS: Mr Perkins, from your experience can you explain to the Commission what the difference is between a John Thompson boiler and a Maxitherm boiler?---Yes. The John Thompson boiler was installed in about 1978. It was then running on briquettes. It was a fully attended boiler at that stage and around 1991 it was then converted to a limited attendance boiler and at that stage that was the only boilers on site and at a later stage, in approximately 1993, two Maxitherm boilers were installed. The primary difference between the John Thompson boilers and the Maxitherm boilers is that the John Thompson boilers have a capacity greater than 10 megawatts and by the regulatory authorities they're required to be operated by a certified boiler attendant and that that attendant needs to do a four hourly check on the operation of that boiler. The Maxitherm boilers are less than 10 megawatts capacity and under that part of the regulatory authority codes they are certified as an unattended operation which means they can be monitored and operated by a trained person and the checking frequency is 24 hours. The other important aspects of the two different boilers is that because the Maxitherm boilers are unattended they require a five weekly interval check to be done from a maintenance perspective. The boilers have inherently a higher level of safety interlocks built into them and that's why they need to be checked more frequently, and conversely they require less intervention from an operator looking after them because they inherently have more safety systems. The John Thompson boilers are maintained from a maintenance checking procedure every three months by a service technician and it relies more on, because it's a larger capacity and a higher risk category, relies more on the boiler attendant to maintain and keep watch over it. So that's the requirement for the four hourly check that's in place.

**** LESLIE PERKINS XN MR KARAKATSANIS
PN470

Mr Perkins, I've got to hand another document to you. Can you explain the difference, Mr Perkins, between these two documents?---This is a - - -

PN471

Between these two pages of the same document?---The two pages of the same document, so this is an extract out of Australian Standard 2593 which is the standard that's used to define the various categories of boilers that are operated within Australia and it defines clearly in there the type of operation, ie. it splits it between unattended operation and limited attendance operation. It sets out within the table there the supervisory requirements and also the maintenance requirements. The other sheet, which is also out of the same standard, defines a trained person. I mentioned earlier that an unattended boiler requires as a minimum a trained person to operate them and within the Australian Standard that's termed as a person who has received adequate instruction and training provided by the owner in the operation of unattended boilers and that's all been highlighted on those sheets.

PN472

I tender that document as evidence.

EXHIBIT #K3 TWO PAGE DOCUMENT EXTRACT AS2593

PN473

MR KARAKATSANIS: Mr Perkins, can you advise the Commission what level of training the FMR employees who have responsibility with respect to the boilers have?---On the basis that the boilers that they were monitoring and supervising are unattended, we follow the requirements of a trained person category and as a result of that they receive one day's formal training in a classroom with a written assessment at the end of that and that was followed by on the job training provided by certified boiler operators to coach them through a number of hours to build up their skills on the boiler, and for a limited attendance boiler the requirements are different. The requirements there are that you have to be an accredited boiler operator and that requires three to four days of training, three days of theory and one day of on the job review of the boiler and includes both a written and a practical examination. Following on from that there's also on the job training.

PN474

Mr Perkins, who on the Tongala site is an accredited boiler attendant to your knowledge?---We have two people on site at the moment. One is Mr Chris Andrews and we have another operator located in the liquids manufacturing area, who had previously worked in the boilers' house when they were limited attendance.

**** LESLIE PERKINS XN MR KARAKATSANIS
PN475

Thank you. Nothing further of Mr Perkins.

EXHIBIT #K4 STATEMENT OF LESLIE PERKINS
<CROSS-EXAMINATION BY MS ALLISON [2.27PM]

PN476

MS ALLISON: Thanks, Mr Perkins. I want to refer to that LP1, the letter, and in your statement you say at paragraph 10, it's my understanding that - this is historically - that this allowance is provided to the remaining boiler attendants at the site in compensation for maintaining and servicing the new limited attendance boilers and then you refer to the letter. Now, it's correct, isn't it, that in fact it wasn't only the limited attendance boilers who received that allowance but it was also the plant attendant who performed a separate role in relation to refrigeration?
---Mm.

PN477

And he received the allowance as well and it was also trade waste operators who received the allowance as well?---Commissioner, that's correct. Part of their duties, they had responsibilities to provide fill in support covering for leave et cetera during those periods and they were expected to be on stand by to cover that fill in requirement. My understanding is that that was part of the agreement when the plant allowance was paid, that they were looking after the boilers and other plant on a fill in basis.

PN478

So the essence of it was that they were looking after the boilers?---And other plant.

PN479

Right. Well, so you're saying the allowance wasn't just paid to boiler attendance. It was paid to people who performed a number of different roles?---Related to the industrial services plant.

PN480

In LP2 you've listed a lot of those services in the left column?---Yes, that's correct.

PN481

And you can see that prior to October 2005 those services were performed by not one employee or one position, but a number of positions?---They were covered by the people who were primarily employed around the boiler house and the industrial services.

PN482

But it wasn't one position, it was - - - ?---It's a role, yes.

PN483

It wasn't one role?---There was the boiler house roles and other roles who were providing relief.

**** LESLIE PERKINS XXN MS ALLISON
PN484

So boiler house role, I think the boilers never - the boiler house people didn't look after the refrigeration?---Yes, they did.

PN485

Well, you're referring to LP2?---Yes.

PN486

And you're saying prior to October 2005, that the boiler house attendants were responsible for the refrigeration?---Yes, that's correct.

PN487

I put to you Paul Arnold was responsible for refrigeration prior to 2005 and his role was not boiler house operator?---I would agree that he did that on a Monday to Friday basis, but the balance of the hours during the week, which are the majority of the hours in the week were - the responsibility of that then fell to the boiler house operators who did the routine checks of the refrigeration plant, cooling towers, water services and air compressors.

PN488

But I'm putting to you that the responsibility of a number of those services on the list were not all performed by the one role?---No. The responsibilities were shared across to a number of roles during that period.

PN489

Thank you. Now, I want to refer, at paragraph 13, you discuss the difference between a qualified boiler attendant and a trained person and Mr Karakatsanis has handed up a number of documents in relation to that, which is K3, trained person, and then on the next page you have the distinction between trained person and an accredited boiler attendant. Look, I'm interested in your words in paragraph 13. I'm interested in your wording, qualified boiler attendant, because that's the wording straight out of the agreement, or straight out of the allowance of qualified boiler attendant. However, the qualified boiler attendant, that word is not used in WorkSafe regulations, as you'd be aware. What is used is accredited boiler attendant?---Yes.

PN490

And in Occupational Health & Safety legislation it's certified?---Mm.

PN491

Okay. So I'm not splitting hairs here?---Yes.

PN492

What I'm suggesting is the distinction isn't between a qualified boiler attendant and a trained person. The distinction is between a credited boiler attendant and a trained person?---I think the important aspect here is, Commissioner, that you're referring to the type of boiler that's being supervisor and in this case an accredited boiler attendant looks after the limited attendant's operation.

**** LESLIE PERKINS XXN MS ALLISON
PN493

So, Mr Perkins, what I'm putting to you is to operate any boiler there are certain qualifications you have to have?---Yes, that's correct. They're set out in the table there.

PN494

And the employees who are operating your boilers, all your operational boilers at the moment have qualifications to operate those boilers?---They have qualifications to operate an unattended boiler as a trained person.

PN495

The only operational boiler on site is an unattended boiler, isn't it?---That's correct.

PN496

Now, in paragraph 19 you refer to LP2 and you say the task we require our FMR operators to carry out are outlined in this document. Evidence has been put that the FMR operators perform a number of additional duties that are not on this list and I'd put those to you, FMR operators are required to perform daily inspections of unattended boilers, do you agree with that?---At this stage the daily attendance checks are completed Monday to Friday by Mr Andrews. If they're not able to be completed, which is unusual, they're then completed on the off shifts.

PN497

Well, evidence has been put that the employees do inspect the boilers at least daily, at least once?---Yes, so - - -

PN498

And are you saying that that is not required?---There is some prescriptive checks that need to be done on a daily basis and they're generally carried out by Mr Andrew. The FMR operators would be going over there and looking at the plant generally around it. At this stage they haven't been completing the prescriptive requirements that are set out in Australian Standards.

PN499

So they do perform daily inspections?---Yes.

PN500

It has been put in evidence that they perform troubleshooting on a regular basis. That is not in that column. Do you agree that they are required to perform troubleshooting?---During their training they were provided with some basic skills that allows them to do basic troubleshooting. If the boiler fails to start beyond the simple and basic troubleshooting, they're not expected - required to perform any other duties. We have a standby boiler in place and if they're not able to quickly get the existing boiler going, they would revert to the standby boiler.

PN501

So they are required to do troubleshooting?---Yes.

**** LESLIE PERKINS XXN MS ALLISON
PN502

Evidence has been put that they check and have to check the refrigeration at least weekly at the beginning of the week and that is a requirement before production can commence. Do you agree that that's required?---Commissioner, no, I don't agree. It's not a requirement that we've laid out specifically to the FMR operators.

PN503

THE COMMISSIONER: Were you aware that that was happening?---Actually, no, I wasn't. I was surprised when I seen it listed in the elements in the submission that was put forward.

PN504

MS ALLISON: Mr Perkins, based on what you said, no one checks the refrigeration plant between 4 pm when Chris leaves on a Friday afternoon and midnight Sunday when production recommences, is that correct?---Yes, that's correct, Commissioner.

PN505

So till 7 am on Monday morning when production starts, at midnight on Sunday, is that correct?---That's correct. At this stage the plant's a fully automated plant with appropriate safeguards in place.

PN506

If that check doesn't occur and milk is put through the pumps and the refrigeration is not on, that milk will go off, won't it?---That's correct.

PN507

So without that check in place the company is potentially leaving themselves open to thousands and thousands of dollars of lost product, aren't they?---The quantity of product and the cost is not, I guess, clearly identified. Each case needs to be treated separately. There is in place alarms to indicate that the temperature that they're trying to cool the milk to is out of specification. That would then indicate that there's something wrong with the service plant.

PN508

An example where something went wrong with the cream pasteuriser, no alarm would alert anyone to that if the check had not been done?---I'm working on the basis that the operator would - who's monitoring the process - would see that the process parameters would be going outside the normal operation and that with their training, they would understand that there's an inherent system fault with the service that's been provided to that area.

PN509

Well, we'll put to you for the time being, we hear what you're saying, that it's not required and that will be certainly taken back, but we put to you that that check there, the company is in danger of losing a significant amount of money and product. Evidence has been given that FMR employees do regular checks on air compressors and have restarted air compressors when they have gone down. Are you saying that that is not required?---Again, I was surprised when I seen that in the documents that were forwarded through as part of your submission.

**** LESLIE PERKINS XXN MS ALLISON
PN510

If Mr Andrews was called in to fix something like that, the company is looking at a $180 call in fee, aren't they?---That's approximately the amount that I understand that we'd be liable for.

PN511

Now, I just also note that up the top there it has start boilers, both under service operator and FMR operators. You are aware that the FMR operators perform a fairly significantly different start up operation to the one performed by Chris, which would be a restart up from a heated boiler, correct?---Yes.

PN512

And that occurred from March 2006 when the plant moved from 24/7 to 24 hours a day five days a week?---Yes. I think the date's slightly different, Commissioner. I think it was around May that we started the operation of a five day a week.

PN513

With the move from the 24 hours a day seven days a week to the 24 hours five days a week production coming out of liquid milks remained the same despite the drop in days, correct?---I believe there was an adjustment to the quantity of milk that come through the liquids plant because - and I think it was tabled earlier by Mr McWhirter, there was a reduction in our export volumes and liquid production reduced, and that was the reason we went from a seven day to a five day operation.

PN514

Well, I put to you that the liquid milk didn't change from going to seven days to five days?---I think in previous submission by Mr McWhirter he has indicated that that was the primary reason that we'd move from a seven day operation to a five day operation, was a loss of a significant export contract from the liquids plant.

PN515

No, that's fine, we put that to you in terms of quantity, not in terms of money. Now, I just want to look at K2. These are the CBT points that a boiler attendant may partake in, that's correct, isn't it?---This was the CBT system as I understand that was in place with a limited attendant boilers, yes.

PN516

So limited attendant boilers could get up to 610 points, correct?---I'm not sure of the specific details of the competency system with regard to the points allocation, but I understand this is the boiler attendant CBT module.

PN517

Well, in the agreement it says that - I'll tell you - that boiler attendants can get up to 610 points, a maximum, and this document illustrated the CBT units they could take to get up to the 610 points, correct?---Again, I indicated I'm not sure of the points allocation that the CBT modules for a boiler attendant here would be total points.

**** LESLIE PERKINS XXN MS ALLISON
PN518

Sorry, I'm not sure I understand.

PN519

THE COMMISSIONER: If this is the correct document, though, one assumes it's 610.

PN520

MS ALLISON: Yes. Commissioner, the point I'm making - I'll make it later.

PN521

Mr Perkins, all your supervisory staff, including previous full time team leaders as supervisors are staff, aren't they?---Within the engineering area or the factory operation?

PN522

In the factory?---Generally from my memory the majority of them have been salaried staff positions.

PN523

Can I just clarify paragraph 22 again where you're talking about, rather than pull employees from the FMR area required to assist Maxitherm boilers, only three would now be required. I just clarify that by those employees, we're talking about employees seeking allowance who are standardised FMR operators?---That's correct. This is as a result of us moving from the seven day to a five day operation and one of those positions was made redundant.

PN524

Now, no employee has ever been asked to operate boilers, whether they be limited, unattended boilers, have never been asked to operate a boiler without receiving the allowance, have they?---Are you referring to an item in my statement?

PN525

No?---So, my understanding is and from the evidence that I've seen, Commissioner, the boiler allowance or the plant allowance - - -

PN526

Mr Perkins, I've asked you a specific question, so if you could reply, yes or no?
---Would you mind repeating it, please?

PN527

Yes, absolutely, that's fine. In your knowledge no employee has been asked to operate any boiler without receiving the allowance, have they?---The boiler allowance or plant allowance that's been paid has been a combination of the boiler - - -

PN528

Sorry, Mr Perkins, yes or no answer. Are you aware of any employee who has been asked to operate the boiler who hasn't received the boiler attendance allowance - sorry, hasn't received the plant attendant's allowance?---Not aware of any.

**** LESLIE PERKINS XXN MS ALLISON
PN529

Now, I certainly think we'd all agree that any updating of machinery that can mean less training is fantastic, but we've put evidence that both the limited attendance boilers and the unattended boilers require very similar skills and responsibilities?---I'm sorry, but I would have to disagree with that point. The Code lays out, particularly on the basis of the sophistication of the different types of boilers and the required checking that they do have different skills and we put in place different levels of training and there's different maintenance requirements for the two different categories of boilers.

PN530

I understand there's different levels of qualifications required, but we're putting to you that our evidence says that very similar skills and duties are required. I'm just putting that to you. I understand you don't agree?---No, I understand, yes.

PN531

Thank you.

<RE-EXAMINATION BY MR KARAKATSANIS [2.50PM]

PN532

MR KARAKATSANIS: Mr Perkins, what were the responsibilities of the boiler operators prior to October 2005 with respect to plant?---Their responsibilities covered the operation of the boilers which in that case was the John Thompson boilers. They had the responsibility to do inspections of the ammonia refrigeration plant, the compressed air plant, the cooling towers, the fire pumps and the water pumps and they were done on afternoon shift, night shift and at weekends.

PN533

Did any employee at the Tongala site have guessed the allowance or been paid the allowance without having responsibility for other areas of the plant?---Not that I'm aware of. The only clarification I would have is that, as mentioned previously, was two people who had duties in other areas, but who were on standby to provide relief into those - the boiler services are that were getting the allowance.

PN534

Such as Mr Andrew at the time?---That's correct.

PN535

What are the responsibilities of the FMR employees with respect to plant post-restructure 2005?---As laid out in our document, LP2, it's pretty well to start the boilers, stop the boilers, change over the boilers, monitor and adjust their operational loads to suit the steam loads within the factory operation and generally keep and make observations around the boiler.

**** LESLIE PERKINS RXN MR KARAKATSANIS
PN536

So there'd be some - as Ms Allison pointed out - there'd be some troubleshooting?
---Yes, some basic troubleshooting.

PN537

So every little task associated with a boiler is not included in that list, but it would be tasks around the boiler?---That's correct.

PN538

Or incidental to those major tasks. Mr Perkins, what level of training do employees have on site now with respect to boilers who are receiving the allowance?---The plant services allowance?

PN539

Correct, sorry?---Yes, sorry. The plant service allowance, they're required to have the full limited attendance boiler certificate or the accredited boiler attendant licence. We also provide additional training in areas of refrigeration which Mr Andrews in this particular case has those additional skills.

PN540

Has any employee received the allowance who is not an accredited boiler attendant for limited attendance boilers, just to make that clear?---No, not that I'm aware of.

PN541

Okay. Mr Perkins, why did the site move to a 24 hour five day operation back in May 2006?---It was a result of a restructure at the factory when the factory lost some liquids production volume that related to an export market.

PN542

Was that a significant amount, the volume?---Off the top of my head I think it was in the order of 10 to 15 per cent of our liquids volume.

PN543

Mr Perkins, one final question. Do you require, or in your view does the company require the current FMR employees who have responsibility for tasks associated with a boiler to do any other task associated with other plant?---No, they don't.

PN544

Thank you. Nothing further.

PN545

THE COMMISSIONER: Just as a follow up with that, we had evidence earlier today that in addition to monitoring the boilers which is clearly understood as being part of the function of the FMRs that the other duties that have emerged over time included making sure pumps were running, the water supply was appropriate, checking site glasses, it was indicated that the alarms go off fairly often, several times a week, that needs to be attended to and that there are other functions associated with the boiler which they're expected to be alert and watchful about?---Mm.

**** LESLIE PERKINS RXN MR KARAKATSANIS
PN546

Would you disagree with any of that?---No, I wouldn't, Commissioner, and I think it was very clear as part of the trained person's training that they received, that we covered those elements, water treatment, they're all important things for the operation of the boiler and they can be easily undertaken by the people with the training that was provided.

PN547

And that, from your point of view, that should have been understood by the people who were part of the restructure, that that was going to be part of their duties?---Yes. That's clear to me as part of the training. There was a syllabus laid out of what we were going to cover and there were some responsibilities allocated when you become a trained person.

PN548

That was all I needed to clarify. Thank you, you're excused.

<THE WITNESS WITHDREW [2.56PM]

PN549

MR KARAKATSANIS: Commissioner, I call one final witness and if it pleases, I'll call him myself and take a short two minute break, if that's okay.

PN550

THE COMMISSIONER: Yes, we might just take a short adjournment. It might please everyone.

<SHORT ADJOURNMENT [2.57PM]
<RESUMED [3.03PM]

PN551

MR KARAKATSANIS: We call to the stand Mr Tony Johnston

<ANTHONY MICHAEL JOHNSTON, SWORN [3.03PM]
<EXAMINATION-IN-CHIEF BY MR KARAKATSANIS

PN552

MR KARAKATSANIS: Mr Johnston, it’s been raised in evidence by Mr Ryan that there was a conversation with you and he and in that conversation, you provided him with some advice. Can you explain to the Commission what your recollection of that conversation was?---Relative to what?

PN553

THE COMMISSIONER: Yes, that was the question I was going to ask.

PN554

MR KARAKATSANIS: Sorry, I’m trying not to lead Commissioner.

PN555

THE COMMISSIONER: No, no that’s all right.

PN556

MR KARAKATSANIS: With regards to compensation regarding the new FMR duties?---The conversations as I recall that I had with Mr Ryan were primarily around support services that I would provide on behalf of the organization and how he felt relative to the restructure. I have no recollection of actually talking about specific remuneration at all.

PN557

Mr Ryan puts that you in fact, when you were asked to provide an indication of what sort of additional remuneration he would be looking at, he puts that you said around about $150 per week. What do you say to that Mr Johnston?---I would deny that.

PN558

Mr Johnston your conversation with the FMR operators, it has been put by Mr Ryan that you would indicate that an additional claim would have to be negotiated with the union. Is that correct?---To my best recollection and the process I believe I would have adopted, would be yes, that I would have suggested if in the instance that Mr Ryan or the FMR operators were reporting that there were extra remuneration that that would best be done through a negotiation process which involved the union.

PN559

Mr Johnston, you were the HR manager at the time of the enterprise agreement at Tongala being re-negotiated in 2005?---That’s correct.

PN560

Did you receive any claim regarding additional claim from the FMR operators at that time?---No.

PN561

The time of the re-negotiations?---No.

**** ANTHONY MICHAEL JOHNSTON XN MR KARAKATSANIS
PN562

Nothing further at this stage.

PN563

THE COMMISSIONER: Thank you.

EXHIBIT #K5 STATEMENT OF ANTHONY MICHAEL JOHNSTON
<CROSS-EXAMINATION BY MS ALLISON [3.08PM]

PN564

MS ALLISON: Mr Johnston, you’ve said that you believe that you would have said something along the lines, that we’ll negotiate with the union an amount of compensation in response to Mr Ryan or any other questions you’d received, correct?---Correct.

PN565

You didn’t raise the matter during the enterprise agreement negotiations did you?
---No.

PN566

And the reason why is, can I suggest you were involved in the enterprise agreement negotiations, weren’t you?---My involvement was I suppose, I could typify as being reasonably minimal. Primarily the negotiations were held through our corporate office and through the union themselves not a lot of on site negotiations.

PN567

Your recall that the current enterprise agreement is more or less a roll over of a previous enterprise agreement with no additional claims from the company or the employees bar the wage increase?---Yes, that’s correct.

PN568

That’s because of the incoming legislation?---That’s what I was led to believe, yes.

PN569

But you do say that you knew about the employees concerns about their increases last year?---Look, I, my response to the question was along the lines of, and I hope I conveyed this, that the question put to me by Mr Ryan my standard response would have been, should there be a negotiations required relative to wages or an increase in wages, or allowances, that that would be best dealt through a negotiation process, yes.

PN570

Mr Ryan in considerable detail indicates that the spoke with you prior to undertaking training and because he was concerned about having to do training and that you had indicated that the employees would need to be compensated, and it was on this basis that he then attended the training with the other employees and commenced duties. You deny that you gave him any cause to believe he would be compensated?---Yes.

**** ANTHONY MICHAEL JOHNSTON XXN MS ALLISON
PN571

We put it to you that you did have a conversation with Mr Ryan, and that you did indicate that he would be compensated in relation to taking up additional duties. Mr Johnston, I would like to take you to clause 8 of your statement. In that statement you say:

PN572

The FMR operator rule would ordinarily be classified as a grade 4 however given the history, the majority of the employees in that position they were mostly grade 5 and red circled. This meant that they had been grade 5 from previous roles, however, when they moved to the FMR role the company maintained their grade 5 classification.

PN573

Now you’d be aware that Gavin Ryan was a standardiser correct?---Correct.

PN574

You would further be aware that John Street was a standardiser, correct?
---Correct.

PN575

You would also be aware that James Cristophous, was a standardiser, correct?
---Correct.

PN576

You would be aware that the standardiser role is a level 5 role?---Correct.

PN577

That’s right, so it is incorrect to say that any of these employees were red circled, or the company maintained their level 5 rate isn’t it?---Correct.

PN578

Did you not recall that they were level 5s when writing that statement?---In writing that statement for me in referring to the FMR operators, it was referring to the FMR operation as a whole, where we had FMR operators who operated the console end, but we also had operators that were in the standardising end. So for me in referring to the FMR operators as level 5s it was the collective that I was referring to.

PN579

You’d be aware that the majority, all bar one FMR operator, were made redundant though?---Yes.

PN580

So when you are saying red circled or maintain their grade 5 classification you hadn’t recalled that they were level 5?---They were – that it was, yes, they were a level 5.

PN581

Okay, Mr Johnston when you’ve been referring to FMR operators, so at paragraph 11 you say:

**** ANTHONY MICHAEL JOHNSTON XXN MS ALLISON
PN582

From my observation the FMR operators were initially uncomfortable with how the arrangement was to work.

PN583

You are not referring to the FMR area there, are you, you are referring to these employees who are seeking the allowance?---My reference there once again, was really relative to the whole of the area. What I was referring to I suppose, was the fact that, there was some uncertainty as to who was going to do what in that area as a whole, and my discussions through that process - - -

PN584

Who – can I get you to be specific? Who was uncertain?---It was all of the – all of the operators that were in the FMR area, prior to us ending up with people that remained. So I’m talking about through that restructure process where people were to nominate whether they were to go or not.

PN585

When you say the FMR operators were initially uncomfortable with how the arrangement was to work, but seemed to accept the ongoing role with the company. What ongoing role are you talking about, that they’ve accepted?---As it stands now.

PN586

S you are, when you say the FMR operators there, you are referring to the current employees?---Yes, I suppose I’m referring to a continuum of a discussion so from the initial concept and who was going to put their hand up to take a voluntary redundancy or not, as we worked through to those that did remain. My comment there was around the level of discomfort as it was initially put and to how it finalised.

PN587

Including the current employees?---Yes.

PN588

Now they would be the only ones with ongoing roles?---That’s correct.

PN589

Okay so that paragraph 11 you are referring to these employees?---Yes.

PN590

So in paragraph 12, where you say:

PN591

I did not have any discussion with FMR operators, delegates or union officials regarding the plant service allowance or reclassification.

PN592

You’ve conceded that you did have a discussion with Gavin Ryan regarding conversation, didn’t you.

**** ANTHONY MICHAEL JOHNSTON XXN MS ALLISON
PN593

THE COMMISSIONER: I thought that was denied?---No, I’m sorry, yes - - -

PN594

MS ALLISON: You did have a conversation where Mr Ryan indicated that he would expect compensation?---I believe my response was as a typical response should a request for a issue like this be raised, that I would refer that to the negotiation process.

PN595

So do you recall having a discussion with Mr Ryan regarding the role?
---Regarding the role?

PN596

Regarding training?---Yes.

PN597

Do you recall that?---I recall having discussions with Mr Ryan about the fact that we would need to provide training for him, or whoever stayed in the role, that training would equip them to be able to deal with the role.

PN598

Do you recall him then saying to you that they would need compensation for doing additional duties?---No.

PN599

You have no recollection of that?---I have no recollection of that.

PN600

I put to you again that Mr Ryan remembers this as actual detail, having a discussion with you in relation to that?

PN601

THE COMMISSIONER: Well we’ve got contradictory evidence, haven’t we, a few times over?

PN602

MS ALLISON: Mr Johnston you left the site in January?---March.

PN603

March okay. No more questions thank you.

<RE-EXAMINATION BY MR KARAKATSANIS [3.19PM]

PN604

THE COMMISSIONER: Anything further?

PN605

MR KARAKATSANIS: Just a couple.

PN606

Mr Johnston, is it usually your practice to make claims on behalf of the union in EBA negotiations?---No.

**** ANTHONY MICHAEL JOHNSTON RXN MR KARAKATSANIS
PN607

So it wouldn’t be your practice then to claim an additional remuneration on behalf of the current three employees who are claiming this allowance during negotiations?---No.

PN608

Mr Johnston, was it yours or the company’s proposal to role the agreement over earlier, that you are aware?---No. Not that I’m aware, no.

PN609

The site traditionally have had roles that are a certain grade that’s correct?
---That’s correct.

PN610

What is the highest level that an employee under the production agreement contained who does not have supervisory duties?---Grade 5.

PN611

MS ALLISON: Commissioner, this is new, so I might seek the ability to question on this as well please.

PN612

MR KARAKATSANIS: My apologies I though my learned friend had raised that in her question.

PN613

Mr Johnston in your statement in paragraph 12 you were asked a question whether you had a conversation or not regarding the plant services allowances or reclassifying an employee claiming that allowance, outside the three employees to grade 6, is that correct?---That’s correct.

PN614

But you also say you may have had a negotiation regarding some other outcome, that’s correct isn’t it?---Yes.

PN615

Thank you nothing further.

PN616

THE COMMISSIONER: Anything further?

PN617

MS ALLISON: Only one thing, I’ll ask the same question.

<FURTHER CROSS-EXAMINATION BY MS ALLISON [3.21PM]

PN618

MS ALLISON: At Tongala supervisory and team leader roles are staffing positions aren’t they?---That’s correct.

PN619

THE COMMISSIONER: All done, I’ve got no questions, thank you, you are excused.

<THE WITNESS WITHDREW [3.21PM]

PN620

THE COMMISSIONER: I take it that’s all the evidence. Are you in a position to go into final submissions or do you want to have a break before you do that? Or do you want to do that another day. Perhaps if we go off the record for a minute.

<OFF THE RECORD

PN621

THE COMMISSIONER: I’ve had a discussion with the parties in relation to the finalization of this matter and it’s been agreed that in the circumstances in which the Commission finds itself that we’ll complete the matter with final written submissions.

PN622

I will require the union to provide it’s final submission by close of business on Friday 25 August 2006. For Nestle in response, to provide their final submissions by close of business Friday 1 September 2006. If there is to be any final response by the applicant, the NUW, then that to be with the Commission by close of business by Wednesday 6 September 2006. The Commission as it indicated in the conference will endeavour then to get the matter finally determined as soon as practicable. The Commission adjourns for the day.

<ADJOURNED INDEFINITELY [3.27PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

CHRISTOPHER GRANT ANDREW, SWORN PN9
EXAMINATION-IN-CHIEF BY MS ALLISON PN9
EXHIBIT #A1 STATEMENT OF CHRISTOPHER ANDREW PN13
CROSS-EXAMINATION BY MR KARAKATSANIS PN67
RE-EXAMINATION BY MS ALLISON PN121
THE WITNESS WITHDREW PN127
GAVIN JAMES RYAN, SWORN PN129
EXAMINATION-IN-CHIEF BY MS ALLISON PN129
EXHIBIT #A2 STATEMENT OF GAVIN RYAN PN133
EXHIBIT #A3 CERTIFICATE FOR OPERATION OF UNATTENDED BOILERS PN142
EXHIBIT #A4 CERTIFICATE FOR OPERATION OF AMMONIA REFRIGERATION PLANT PN144
CROSS-EXAMINATION BY MR KARAKATSANIS PN228
RE-EXAMINATION BY MS ALLISON PN277
THE WITNESS WITHDREW PN287
MARK DAVID MCWHIRTER, SWORN PN306
EXAMINATION-IN-CHIEF BY MR KARAKATSANIS PN306
EXHIBIT #K1 STATEMENT OF MARK DAVID MCWHIRTER PN351
CROSS-EXAMINATION BY MS ALLISON PN352
RE-EXAMINATION BY MR KARAKATSANIS PN423
THE WITNESS WITHDREW PN459
LESLIE PERKINS, AFFIRMED PN461
EXAMINATION-IN-CHIEF BY MR KARAKATSANIS PN461
EXHIBIT #K2 DOCUMENT REGARDING TONGALA’S REQUIREMENTS FOR BOILER ATTENDANT PN468
EXHIBIT #K3 TWO PAGE DOCUMENT EXTRACT AS2593 PN472
EXHIBIT #K4 STATEMENT OF LESLIE PERKINS PN475
CROSS-EXAMINATION BY MS ALLISON PN475
RE-EXAMINATION BY MR KARAKATSANIS PN531
THE WITNESS WITHDREW PN548
ANTHONY MICHAEL JOHNSTON, SWORN PN551
EXAMINATION-IN-CHIEF BY MR KARAKATSANIS PN551
EXHIBIT #K5 STATEMENT OF ANTHONY MICHAEL JOHNSTON PN563
CROSS-EXAMINATION BY MS ALLISON PN563
RE-EXAMINATION BY MR KARAKATSANIS PN603
FURTHER CROSS-EXAMINATION BY MS ALLISON PN617
THE WITNESS WITHDREW PN619