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Australian Industrial Relations Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 13992-1
COMMISSIONER DANGERFIELD
C2005/3207
ASC PTY LTD
AND
COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA THE AUSTRALIAN WORKERS’ UNION AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
s.170LW - Application for settlement of dispute (certification of agreement)
(C2005/3207)
ADELAIDE
10.07AM, TUESDAY, 17 JANUARY 2006
PN1
MR A SHORT: I seek leave to appear together with MS K SHERIDAN for the company.
PN2
MR J GRESTY: I appear on behalf of the Australian Manufacturing Workers' Union. With me this morning, sir, is senior delegate MR N O'BRIEN.
PN3
MR J WILDER: I appear on behalf of the CEPU Electrical, Energy and Services Division and with me I have delegate MR B MILHEDGE.
PN4
MR J BRAITHWAITE: I appear on behalf of the Australian Workers' Union and appearing with me is MR C DERYKE.
PN5
THE COMMISSIONER: Thank you. Leave granted, Mr Short. Now, I will just indicate to the parties that this is as I understand it
a proceeding under section 111AA of the Act. That's as I understand it, which is the recommendations by consent. There's been a
history to the matter in that it was the subject of a section 170LW application before Senior Deputy President O'Callaghan in December
and I have that file and I have perused that file, not that there's much on the file. There's an application, there's a copy of
the agreement, there's a couple of other bits and pieces, but I don't think there was anything terribly formal came out of that apart
from a statement of Senior Deputy President O'Callaghan on
14 December indicating that in paragraph 2:
PN6
As a result of these discussions -
PN7
that is discussions that were held on 13 December -
PN8
the parties have agreed to refer the following issues to the AIRC pursuant to section 111AA of the Act.
PN9
And I understand that these two issues are the issues that are before the Commission now, (1) does the ASC have the capacity under the terms of the Australian Submarine Corporation Pty Ltd AMWU, AWU, CEPU Enterprise Bargaining Agreement 2003/2006 to introduce bar coding or is bar coding most appropriately described as an extra claim in terms of the certified agreement and, (2) if bar coding is able to be introduced, are there limitations on the form and operation of any bar coding system that arise from the requirements of the certified agreement?
PN10
Now, my understanding is that they are the two issues that are before the Commission for and I use the term loosely, arbitration. It's arbitration in inverted commas. It's actually recommendations by consent pursuant to section 111AA. The parties as I understand have given their consent to the Commission making recommendations and being bound in the terms of section 111AA.
PN11
Apart from that, I think the parties can assume that I know nothing and that would be the best thing to assume. I have the agreement here. I have not perused the agreement in any detail and I think it's safe to proceed on the basis that I know no background to this at all. I don't know what Senior Deputy President O'Callaghan knows about it.
PN12
I'm coming into it fresh and that's from my perspective. Is there any comment on that and perhaps in terms of the procedure, I assume that, Mr Short, since the Submarine Corporation lodged the 170LW that the normal procedure here would be for you to proceed and put whatever you want to put to the Commission and then we hear from the unions and then there be the usual brief right of reply on any new matters raised.
PN13
MR SHORT: We would propose to call our witnesses first, then close our case, the union call its witnesses and then we'd have addresses.
PN14
THE COMMISSIONER: Yes, all right, in that normal way.
PN15
MR SHORT: Yes.
PN16
THE COMMISSIONER: Would the unions see it going that way?
PN17
MR GRESTY: Yes, sir, we'd agree with that.
PN18
THE COMMISSIONER: The standard way of proceeding. Mr Short, we'll hear from you.
PN19
MR SHORT: Thank you. To assist, what I'll do is just hand up a brief outline of argument.
PN20
THE COMMISSIONER: Yes, that's the other thing I should say. There were no directions given, of course, in regard to today's proceeding and I guess that was partly because there was the switch of members going from Senior Deputy President O'Callaghan to myself and the fact that it was over the Christmas/New Year break and everything was kept rather informal, so I'm not requiring an outline of argument, of course, from anyone, but it's very helpful, Mr Short. Thank you.
PN21
MR SHORT: It's very brief. I've identified in paragraph 1 the issues and you're alert to those and you have the statement of Senior Deputy President O'Callaghan of 14 December 2005. Now, the relevant clauses of the enterprise agreement, you have the 2003/2006 enterprise agreement, Commissioner.
PN22
THE COMMISSIONER: Yes, I do.
PN23
MR SHORT: The matter involved the proposed introduction by the company of a bar coding recording system which is a method of more accurately recording time spent on jobs for the client and it's a system which will assist in efficiency and billing and client reporting.
PN24
Currently, Commissioner, all employees on site have their movements recorded for time collection purposes by clocking in and out of the site at nominated gates, so everyone has got an access card and it's got a bar code on it and so white collar employees record at the gate and blue collar employees record times at the work location and a proximity reader will record swipe cards at these locations.
PN25
Now, when employees commence work, they're given a work pack by their supervisor. I'm talking about the blue collar workforce here and this is a folder which has instructions which includes an explanation of work to be undertaken, the list of materials to be used and a schedule of the expected duration of the work.
PN26
The introducing of bar coding would result in a new bar code strip being placed on the employees' existing access card and also there would be a bar put on the front of each of those work packs so that the employee would swipe the folder upon the commencement of work on the job and that would enable there to be accurate time allocation to particular tasks, because you'll know how long someone worked on one job before they went to the next job and it enables up to date reporting to the client and up to date billing as work progresses.
PN27
So the benefits of bar coding are improved project management and reporting to the client which will have an impact on allocation of resources and billing cycles. It will enable progress reporting almost full-time, whereas currently the best information progress reports is about two weeks behind and is undertaken by the supervisor's assessment, if you like a where do they think they are, rather than an accurate where exactly they are.
PN28
Now, the company seeks to introduce bar coding. The unions resist it and so the issue has been referred to the Commission. The company stance is it is already able under the terms of the existing enterprise agreement to implement bar coding as of right. The unions contest that, so if we look at, just by way of background, some of the clauses of the current enterprise agreement, Commissioner, if I start with clause 31 which is headed time recording/record keeping. Do you have clause 31?
PN29
THE COMMISSIONER: Yes, I do.
PN30
MR SHORT: And you'll see 31A talks about the personal identification access card that I described to you and if I can invite your attention to clause 31E:
PN31
It's a condition of the agreement that employees shall use their personal identification access card for other record keeping purposes such as allocation of tools and equipment, job costing purposes, quality control records and the like which may be required by the company from time to time.
PN32
Now, the company introduction of bar coding comes squarely within that. It's a use of the existing card for other record keeping purposes and in particular to do with job costing, but it will also assist in relation to allocation of tools, because the tools, a particular task can be the subject of a bar coding as well and obviously this is something which would be required by the company from time to time, so if you like for one period they would have the current system, then they're proposing for another time to have a slight variation on that, so from the company's perspective, clause 31E is absolutely clear.
PN33
If I could also invite your attention to clause 5, the objects of the agreement, because you may find that this is pursued in coming to a proper understanding of the agreement. The parties committed to developing and maintaining an internationally and nationally competitive company. There is a recognition by the parties that there must be an achievement - so that there must be achieved a substantial increase in overall efficiency and that this will be achieved via greater productivity and flexibility, more flexible conditions, higher performance.
PN34
The parties committed to achieving a competitive advantage based on utilisation of high skills, effective utilisation of technology, effective team work and flexibility and also an ability to accommodate changes in the work plan and it will be the company's position in due course that the introduction of bar coding is entirely consistent with the objects of the agreement and that the opposition to bar coding is entirely inconsistent with the objects of the agreement.
PN35
Now, clause 8, Commissioner, deals with no extra claims and it has been suggested at times to the company that introduction of bar coding is an extra claim, is not available. The company rejects that assertion. Another relevant clause you may find, Commissioner, is clause 9A, structural efficiency, where there was a commitment to positive cooperation to increase efficiency, productivity and competitiveness of the enterprise.
PN36
Now, in the outline, Commissioner, I have set out what we say are some relevant principles of interpretation and some authorities, so I thought it would be more helpful to put those in an outline. I don't suggest they're controversial, but rather than take you to all the cases, if I provide an outline, that you'll be able to refer to that if you see the need in due course.
PN37
I should say this is a matter in which the Commission would effectively be interpreting the agreement and forming a view about the two issues which are before it. The Commission will be able to interpret because it is a 111AA proceeding, so there's no issue about whether you're exercising the powers of the court.
PN38
You're starting point would be to look at the agreement itself and form a view about, well, what does the agreement - what's the proper construction of the agreement in relation to these issues? If there might be two or more possible meanings, then you could look to the surrounding circumstances as evidence to aid interpretation and so you could look at the circumstances surrounding the negotiation of the agreement.
PN39
Also in relation to the negotiation of the agreement, if you could find that there was a common intent which I have supported or was at odds with the company's position, then you would find that would be material to your recommendations. If you found that there was no common understanding, you could take that into account to see whether that offered you any assistance in relation to proper construction of the agreement.
PN40
Our position will be, Commissioner, that on the plain and ordinary meaning of the agreement, the introduction of bar coding is permitted under clause 31 and is consistent with clauses 5 and 9A and that it is not an extra claim under clause 8. Our fall-back position would be that it could be introduced in any event under clause 32 which deals with major change.
PN41
That's very much a subsidiary or alternative argument, Commissioner, on the basis that that talks about the introduction of major changes in technology likely to have significant effects on employees as defined in the clause. Do you have that, Commissioner?
PN42
THE COMMISSIONER: Yes, I do.
PN43
MR SHORT: And our position is this is not a major change under clause 32, nor is it likely to have significant effects within the meaning of that clause. If it were a major change, then we would contend that we would be able to introduce it after consultation, that there be no ultimate barrier to the introduction of bar coding. If it is not a major change within clause 32, then we say that makes it so much clearer that there's no barrier to the introduction of bar coding under the agreement.
PN44
Now, if I can outline to you the nature of the case we'll be advancing in relation to how the agreement itself came to be negotiated and have the contents that it does, it followed on, Commissioner, from a 2001/2003 agreement and if I could tender an extract from the 2001/2003 agreement and I will hand up a working copy for the Commission as well.
PN45
Commissioner, you will, of course, be able to go to the entire document. The print reference is at the top of it. What I wanted to highlight, Commissioner, was at clause 5, objects of agreement, it was in the same terms. Clause 9A, structural efficiency, while not appearing in the exact - and you'll be able to check this if there's any controversy about it, was in the same terms and clause 31 was in the same terms. Perhaps if I seek to tender that extract.
THE COMMISSIONER: No objection? No.
EXHIBIT #ASC1 EXTRACT FROM AUSTRALIAN SUBMARINE CORPORATION PTY LTD/AMWU/AWU/CEPU ENTERPRISE BARGAINING AGREEMENT 2001/2003
PN47
MR SHORT: In relation to the negotiation of the current agreements, there were a series of meetings held and minutes were kept of those meetings and those minutes were subsequently confirmed by the negotiating parties. The first meeting was held on 20 March 2003 and if I could provide to the Commission the minutes of the meeting number one, 20 March 2003, and again with a working copy.
PN48
THE COMMISSIONER: You seek to tender this as well, Mr Short?
PN49
MR SHORT: I do, Commissioner.
THE COMMISSIONER: Any objections to these? No.
EXHIBIT #ASC2 MINUTES OF THE ASC 2003 EBA DISCUSSIONS HELD ON 20/03/2003 MEETING NUMBER ONE
PN51
MR SHORT: And also handed out at that meeting and the record ASC2 should be read in conjunction with it, was a document entitled 2003 EBA management issues, if I could provide that to the Commission and seek to tender it.
PN52
THE COMMISSIONER: You say this was discussed at that meeting on
20 March 2003?
PN53
MR SHORT: Yes.
THE COMMISSIONER: Again, any objection, gentlemen? No.
EXHIBIT #ASC3 2003 MANAGEMENT ISSUES DOCUMENT
PN55
MR SHORT: Now, looking at ASC3, Commissioner, if I could invite your attention to item 12 which refers to the introduction of bar coding and if I can take you back to ASC2, the record of the meeting, on page 3 item 12 is mentioned and Mr Lemonius is recorded as saying that - - -
PN56
THE COMMISSIONER: Item which?
PN57
MR SHORT: Item 12.
PN58
THE COMMISSIONER: On ASC2 simply says, item 12:
PN59
It could be argued it is covered under - - -
PN60
MR SHORT: Yes, and that refers to item 12 of the EBA management issues list and if you look earlier on page 3, you'll see that Mr
Lemonius and you'll hear that he was a management representative in the negotiations spoke to items on management's list and so in
relation to item 12, what he's raised is, well, it could be argued it's covered under the EBA preamble and you'll hear that's a reference
to clause 5 and, indeed, you'll note on ASC3 that next to item 12 there's a
handwritten note, clause 5.
PN61
THE COMMISSIONER: Yes.
PN62
MR SHORT: Now, as you'd expect, there was a discussion and if I can provide you with a record of meeting number two held on 27 March 2003 and I'd seek to tender that.
THE COMMISSIONER: And again if no objection, we'll mark that.
EXHIBIT #ASC4 MINUTES OF ASC 2003 EBA DISCUSSIONS MEETING NUMBER 2 DATED 27/03/2003
PN64
MR SHORT: Now, what you'll note on page 1 is that the minutes of the previous meeting were reviewed and they were accepted with a clarification.
PN65
THE COMMISSIONER: Yes.
PN66
MR SHORT: So that indicates to you the process that was undertaken. The only reference to item 12 appears on the top of page 3, that general discussions took place on among other matters item 12. Once you follow the chain through, then, Commissioner, we come to meeting number three held on 1 April 2003.
PN67
THE COMMISSIONER: Do you seek to tender these as well?
PN68
MR SHORT: I do.
PN69
THE COMMISSIONER: Again no objection?
MR WILDER: No objection, Commissioner.
EXHIBIT #ASC5 MINUTES OF 2003 MEETING NUMBER THREE DATED 01/04/2003 EBA DISCUSSIONS
PN71
THE COMMISSIONER: Page 3?
PN72
MR SHORT: Page 2, at about the middle, you see reference to item 12, bar coding:
PN73
Following discussions, it was agreed that clause 5 of the current EBA covered this point adequately and as such, this item will be removed from management's list.
PN74
And the company's case and evidence will be that on the basis that bar coding could be introduced under clause 5, it was not pursued as a separate claim because there was nothing necessary to pursue, there's no need to introduce anything into the enterprise agreement if we can already do it, so the minutes record it was agreed clause 5 covered the introduction of bar coding adequately.
PN75
The minutes of meeting number three were dealt with at meeting number four conducted on 10 April 2003 and if I can provide to the Commission and seek to tender minutes of meeting number four, 10 April 2003.
THE COMMISSIONER: And again, as we go through these documents, if there's any objections, I just take it that someone will object.
EXHIBIT #ASC6 MINUTES OF ASC 2003 EBA DISCUSSIONS MEETING NUMBER FOUR DATED 10/04/2003
PN77
MR SHORT: Now, on page 1 there's reference to the minutes for meeting number three being accepted with a clarification which is not relevant for present purposes. There was then general discussions about those matters remaining on management's list of issues and on page 3, Commissioner, there's a summary of log of claims items withdrawn. Do you see that?
PN78
THE COMMISSIONER: Yes.
PN79
MR SHORT: And that management item number 12 had been withdrawn.
PN80
THE COMMISSIONER: Yes.
PN81
MR SHORT: There was also at that meeting a further document, 2003 EBA management issues status following meeting number three and I seek to tender that document.
PN82
THE COMMISSIONER: Again, this document headed 2003 EBA management issues status following meeting number three, 1 April 2003 and you said this was tabled at the meeting on 10 April.
PN83
MR SHORT: Yes. You'll see it's referred to on page 1 of ASC6 under the heading general discussion:
PN84
A revised copy of the 2003 EBA management issues document was tabled.
PN85
That's the document I've now handed to the Commission.
THE COMMISSIONER: So we'll mark this new document ASC7 which is the 2003 EBA management issues status following meeting number three.
EXHIBIT #ASC7 2003 EBA MANAGEMENT ISSUES STATUS FOLLOWING MEETING NUMBER THREE
PN87
MR SHORT: On page 2, Commissioner, there's reference to item 12 removed from the list, refer to appendix 1 below. Appendix 1 appears at the bottom of page 3, it talks of introduce bar coding for time collection, et cetera, and then goes over onto page 4:
PN88
Agreed by management and unions at ASC 2003 EBA discussions meeting number three, 1 April 2003, that clause 5 of the current EBA covered this point adequately.
PN89
It will be the company's case, Commissioner, that it was agreed that bar coding could be introduced under clause 5 and on that basis, management withdrew it as a separate claim and if that is correct, then this hearing really should not be taking up the Commission's time, but since it seems that that is not agreed and there must be some response to it heading our way, we will seek to call evidence as to what transpired and we will argue about the proper construction of the document irrespective of the negotiations which took place. To that end - - -
PN90
THE COMMISSIONER: Mr Braithwaite.
PN91
MR BRAITHWAITE: Excuse me, Commissioner, can I just seek clarification in relation to this ASC7, whether that was ever tabled with the employees on the joint consultative committee or the negotiating table? There seems to be some confusion from our end of the table.
PN92
MR SHORT: I was saying that these documents were presented in the course of the EBA discussions and as I've indicated, ASC6 records that the document ASC7 was tabled on 10 April 2003 at the meetings between the unions and management at which the EBA was being discussed and negotiated.
PN93
MR BRAITHWAITE: Are you saying, Mr Short, this was tabled at the - - -
PN94
MR SHORT: It was tabled at the meeting on 10 April 2003.
PN95
THE COMMISSIONER: You see the reference there, Mr Braithwaite, to page 1 of ASC6?
PN96
MR SHORT: And under the heading general discussion.
PN97
THE COMMISSIONER: As I understand it, ASC6 which is your minutes of 10 April 2003, point 2, general discussion and it talks there in the very first line about a revised copy of the 2003 EBA management issues document was tabled. That document that it says was tabled on 10 April is the document ASC7, according to Mr Short.
PN98
MR BRAITHWAITE: That's what I was just clarifying.
PN99
MR SHORT: Now, we will seek to call the three management representatives in relation to the negotiation of the enterprise agreement, Mr Martin Pickles, who is production support manager was present at the meetings to which I've referred and took notes of those meetings. Mr Ken Jarvis, who is production resources manager was also present.
PN100
He also made additional notes at the meeting of 1 April 2003 and you'll hear from him in due course that it was agreed that time recording was already capable of introduction under the existing terms of the 2001 agreement, there was no need for a change and you'll also hear from him that he noted Mr O'Brien making the statement in reference to clause 5 that he believes the clause covered it and he can tell you about his contemporaneous notes when he gives evidence and we've also arranged for Mr Robert Lemonius, submarine operations manager WA, to give evidence via video link and I understand the Commission is aware that he's available for 2 o'clock South Australian time and we may seek to seek Mr Mark Govel, works manager, in relation to the proposed operation of the bar coding system.
PN101
Sir, we will also briefly outline that there has been extensive discussion, numerous presentations to the workforce in relation to this matter. We don't propose going into great detail about those on the basis that the issues really relate to the construction of the agreement, rather than what's happened after that time. Just as there has been some without prejudice propositions put, we're not going into those on the basis that agreement wasn't reached. Whatever concessions any party may have made is of no relevance to the proper construction of the agreement, so I hope that gives some greater clarity about what is in issue and the background to the matter.
PN102
THE COMMISSIONER: Yes, thank you.
MR SHORT: Then unless there are any questions or matters you wish to raise, I would seek to call our first witness and that would be Mr Martin Pickles.
<MARTIN PICKLES, SWORN [10.43AM]
<EXAMINATION-IN-CHIEF BY MR SHORT
PN104
MR SHORT: Now, Mr Pickles, I think you commenced employment with the company in February 1991?---That's correct.
PN105
You're currently employed as production support manager?---Yes.
PN106
And you report to Mr Mark Govel?---Yes.
PN107
And what's his position?---He's works manager.
PN108
And in your position, I understand you're responsible for support services to production?---That's correct, yes.
PN109
And you also assist Mr Ken Jarvis with industrial and human resource issues?
---Yes.
PN110
You've previously occupied roles of production mechanical manager and boat manager?---Yes.
PN111
Now, have you been involved in enterprise agreement negotiations for the company?---I have, yes.
PN112
And can you recall which negotiations - sorry, which agreements you've been involved in?---I was involved in the 2003/2006 and the previous one.
PN113
The 2001/2003. Now, in relation to the 2003 agreement negotiation, you were part of the management team?---Yes.
PN114
And who else was on the management team?---There was Rob Lemonius who was the leading negotiator, Ken Jarvis, Steve Warman and myself.
PN115
Now, what was your role during the 2003 negotiations?---To support Robert and provide assistance to Robert during the negotiations and also to take the minutes of the meetings.
PN116
And did you have any responsibility for distribution of minutes prior to the next meeting?---Sorry, yes. I did, yes.
PN117
So the minutes were distributed let's say after meeting one?---One.
**** MARTIN PICKLES XN MR SHORT
PN118
Minutes were prepared?---Minutes were prepared, written up and then distributed to the relevant parties.
PN119
Right, and do you prepare the minutes?---Yes.
PN120
And you distribute them?---Yes.
PN121
And then those minutes would be canvassed at the outset of meeting number two?
---Yes.
PN122
And any changes made would be recorded by you?---Yes.
PN123
And reflected in the meetings?---In those meeting minutes.
PN124
That was the process adopted for each meeting?---Every and every one, yes.
PN125
And you attended all of the 2003 EBA negotiation meetings?---Yes.
PN126
Now, before going to the negotiations, I just want to ask you some questions about time recording and how that operates at present and how it would be proposed to operate?---Okay.
PN127
So just briefly, what's the system with employees and - do they have an access card?---Currently every employee of the organisation has an access card which is like this.
PN128
So you're holding up your access card now?---Yes. Embedded in there is a magnetic code and there's a proximity reader switch, so at the entrance to the facility there are the card readers and at workplace sites, there are a number of readers as well, so as the employee comes in, the white collar workers, they would swipe at the front gates and that records the time for the white collar worker up to the point of his departure. He just swipes the card again to get out of the gate. The blue collar workers come in through the gates using the card which allows the gate to open, but their time recorded is actually from their workplace sites.
PN129
THE COMMISSIONER: They have to swipe it again at the workplace site?---At the end of the shift, yes.
PN130
MR SHORT: And I might leave the detail of how the bar coding system would work to others to follow, but if I can just return now to the enterprise agreement negotiations. Now, looking at ASC2, perhaps for efficiency, if Mr Pickles could have a copy of ASC2 through to 7 and we'll just work our way through.
**** MARTIN PICKLES XN MR SHORT
PN131
THE COMMISSIONER: Yes.
PN132
MR SHORT: Now, you recognise those minutes?---I do.
PN133
Because you prepared them?---Yes.
PN134
ASC3, do you recall that document being tabled at meeting number one?---I do, yes.
PN135
And item 12 deals with bar coding?---Yes, that's correct.
PN136
Is that your hand-writing on the document?---It is.
PN137
And the next one, 12, is hand-written, clause 5?---Clause 5, yes.
PN138
What can you tell us about that?---Well, during the discussions, there were a number of notes as well, hand-written notes and I also had these in front of me and I put notes on these documents as we went through as well and during those discussions, it was mentioned that - it was argued that clause 5 covered data collection technology, the use of technology to make the business more efficient.
PN139
So there was no need for any claim to be made?---Yes. That was the initial discussion, yes.
PN140
And did Robert Lemonius explain why bar coding was under consideration?
---Robert gave a brief outline against each of these points about the list of issues and during those discussions, he gave a brief
outline of what it was to be used for, how it's to be used.
PN141
Now, in relation to those present at the meetings, the minutes appear to show who was present, in what capacity?---Yes, that's correct.
PN142
The way it was recorded?---Yes.
PN143
So there were representatives of each union at each meeting?---Yes.
PN144
In relation to meeting number two, ASC4, the minutes were reviewed and clarified at the outset of the meeting?---Yes.
PN145
And there was some general discussion about item 12 of management's list of claims. That seems to appear at the top of page 3?---Yes, that's correct.
**** MARTIN PICKLES XN MR SHORT
PN146
Do you recall anything in particular about meeting number two of relevance?
---We generally, well, we discussed again the relevant points and once again I believe it was stated that the preamble which is clause
5 to clause 31 adequately covered these points.
PN147
Now, can I ask you to go to ASC5. As I understand the minutes, item 4, bar coding, was removed from management's list?---Yes.
PN148
What can you tell us about that?---Well, we just came to the general consensus that clause 5 of the EBA covered that point. There was no point in pursuing it any more. We were just wasting time, something that already existed and a capacity that we already had. The reason we raised it initially was just to make sure that everyone was clear that that's what we intended to do. We intended to proceed with the bar coding.
PN149
So was it on that basis that item 12 was removed from management's list?---Yes.
PN150
That management didn't need it?---That's correct.
PN151
Because it already had the ability to introduce bar coding?---I suppose withdrawn is the wrong statement to make. It's probably remove.
PN152
At the end of that meeting, is there any doubt in your mind about management's ability to introduce bar coding under the enterprise agreement?---No.
PN153
Looking at ASC6, now, no-one thought to make any relevant change to the minutes of meeting number 3?---No. It's identified on there that in section 2 there's a change, but after that they agreed that the minutes was basically what occurred.
PN154
And there's on page 3 a summary of log of claims item withdrawn. You see number 12 is referred to there?---Yes.
PN155
There's also on page 1 of ASC6 reference to a revised copy of the 2003 EBA management issues. Do you see that?---That's correct, yes.
PN156
And is that the document which is now ASC7?---That's the one.
PN157
So that document was tabled, that is ASC7 was tabled at meeting number 4?
---Yes.
**** MARTIN PICKLES XN MR SHORT
PN158
Immediately after the minutes of meeting number 3 were reviewed?---That's correct.
PN159
And ASC7 comprises a list of issues together with an appendix?---Yes.
PN160
Now, in relation to the appendix and in particular the introduction of bar coding, you recorded that there was agreement that clause 5 of the current EBA covered this point adequately?---That's correct.
PN161
Did anyone seek to disagree?---No.
PN162
Did anyone suggest that there was some limitation or barrier under clause 5 to the introduction of bar coding?---Not that I can recall.
PN163
Indeed, wasn't it quite the opposite?---Yes. It was agreed. It was agreed by management and unions.
PN164
Now, in drafting your management issues status list, did you turn your mind to avoiding confusion or lack of clarity?---In regard to this document, it was written so it would be clear to everybody for future reference, exactly what occurred and why matters were removed or withdrawn or what the agreements were at that particular point in time.
PN165
Has anyone ever suggested to you that ASC7 was unclear?---No.
PN166
Is the introduction of bar coding a matter of significance to the company?---It was, to increase the efficiency of the company. It's a matter that we sought to bring on at a later date and that was one of the reasons it was raised during the EBA discussions, to make sure everyone is aware of it and we wanted clarification that there wasn't a problem with the introduction of bar coding.
PN167
What was the time frame for minutes, the minutes being circulated following the meeting?---Generally within two days.
PN168
And the status summary was handed out at the meeting itself?---At the meeting itself, yes.
PN169
But no-one ever came back afterwards and said - - -?---No-one ever did.
PN170
And negotiations were finally concluded I think in June 2003?---Yes.
**** MARTIN PICKLES XN MR SHORT
PN171
And signed off in July 2003?---Yes.
PN172
Before the matter was taken to the Commission for certification?---Yes, that's right.
PN173
Now, can you recall when it was that you next heard there was any issue about bar coding?---We raised it again in May 2004 and progressed through later meetings during that year. I can't remember the exact dates. There was concerns raised that the unions felt it could be an extra claim.
PN174
And were there presentations given to employees about the bar coding?
---Presentations were given to the stewards in December of 2004 and then through the month of December, there were a number of presentations
given to the workforce on the application and the use of bar coding, what it was about and how it operated.
PN175
And I think you're aware that since that time, there have been a number of meetings with the unions?---Yes.
PN176
Attempts to resolve the issue without success?---Yes.
PN177
And that the company wishes still to introduce bar coding?---Yes.
PN178
I have no further questions, Commissioner.
THE COMMISSIONER: Mr Gresty.
<CROSS-EXAMINATION BY MR GRESTY [10.58AM]
PN180
MR GRESTY: Thank you, sir.
PN181
Mr Pickles, the document referred to as ASC3 which in layman's language was essentially the company's log of claims and item 12 in that list was the introduction of bar coding for time collection, material control, process work order, administration and process collection?---Progress collection, yes.
PN182
Was that your understanding of what bar coding was intended to be used for?
---Yes. I believe we also discussed at the time materials. It is mentioned in clause 31 as well, about allocation of materials,
but that was just a minor thing.
PN183
So your recollection of what bar coding was and expressed in this document, you haven't changed your mind on what it is?---No.
**** MARTIN PICKLES XXN MR GRESTY
PN184
I note it's in your hand-writing, you believe that clause 5 adequately covered the introduction of bar coding?---I noted down clause 5 as a note during the discussions that were held and I wrote it down there as a reference to myself.
PN185
So you didn't think clause 5 dealt with it?---Yes, yes, I believe clause 5 dealt with it, but - - -
PN186
I thought that was my question, did you believe that clause 5 was the vehicle to deal with the introduction of bar coding?---Yes. You asked me about the note, though.
PN187
Are you still of that view?---Yes.
PN188
And there's nothing you seek to change in clause 5 that would help the process? In its entirety, clause 5 would deal with the item?---With the introduction of bar coding.
PN189
With respect to bar coding?---Yes.
PN190
And you're still of the view the bar coding refers to time collection, material control, process, work order administration?---And process collection. I thought if you were heading down the path of time collection, that time collection would be time collected against the particular work order, not the time on site.
PN191
So if that's what bar coding was and we seem to agree on that, when it was removed, bar coding, we've accepted bar coding is that, you've confirmed on at least three occasions, what was intended to replace or what was bar coding going to be within the context of clause 5 if the company have removed it?---I'm sorry, I don't understand the question.
PN192
Well, what I'm saying is bar coding we've agreed means the introduction of time collection, material control, process, work order administration and process collection. That's what we've agreed it is?---Yes.
PN193
So if that's removed - - -?---No, bar coding wasn't removed.
PN194
Well, I'm sorry. Well, I'll get on to that in a moment. If that's removed, then what is bar coding?
PN195
MR SHORT: What is?
**** MARTIN PICKLES XXN MR GRESTY
PN196
MR GRESTY: Well, I'm merely trying to confirm - - -
PN197
THE COMMISSIONER: I think Mr Short is asking you to clarify the question, that's all, Mr Gresty.
PN198
MR GRESTY: Well, the question is this. If we determine what bar coding is, it must have the same consistency, it must be as consistent when it's been sought to introduce as it is when it's removed. Surely that is - is that agreed, or does bar coding when it's removed take - - -
PN199
THE COMMISSIONER: Just ask the question of the witness, I think, Mr Gresty.
PN200
MR GRESTY: Well, I tried to do that and Mr Short was - so if bar coding when it was sought to be introduced is what it is. We've agreed upon that. When it was removed, it must be the same number of items?---Bar coding is bar coding. Listed is a list of issues in there going to the EBA. Following discussions, it was my understanding that clause 5 covered us to introduce bar coding. As such, it wasn't necessary to add it as an extra item into the EBA as a separate stand alone item. That clause under technology introduction allows us to do that. The actual bar coding itself was never withdrawn as such, because following those discussions, it was understood that that capability to implement this technology already existed. As such, it wasn't necessary to list it into the EBA.
PN201
You would have or perhaps somebody could provide you with a copy of ASC6 - sorry, ASC7, so if I take you to page 2 and about two-thirds down, with respect to the company's item 12, it says:
PN202
Remove from the list and refer to appendix 1.
PN203
?---That's correct.
PN204
What does appendix 1 tell us?---It says it was - - -
PN205
What it says is:
PN206
Item withdrawn from the list.
PN207
?---Introduce bar coding for time collection withdrawn. Sorry, you asked me what it says.
**** MARTIN PICKLES XXN MR GRESTY
PN208
Yes?---Right, turn over the page, it says then:
PN209
It was agreed by management and the unions that clause 5 of the current EBA covers this point, that the introduction of bar coding was available to the company is already identified in clause 5.
PN210
And as such, we would do it from the list of items. There was no point in having it in the list. It was already there.
PN211
Clause 5, unamended, unchanged, unvaried could deal with that?---Yes.
PN212
Did you make sure about that?---Yes.
PN213
Well, Commissioner, perhaps there's a secret document. It wasn't provided by me. I think my friend provided it at a previous hearing, we have an extract from Ken Jarvis, personal notes taken on 1/4/03 and again about - I am sorry, I am at an advantage. Maybe not everybody has this document.
PN214
THE COMMISSIONER: I certainly don't have the document.
PN215
MR GRESTY: Well, we may want to get some copies.
PN216
THE COMMISSIONER: Via Mr Jarvis when he's in the witness box, Mr Gresty, perhaps that's the best way of doing it. If you wish to ask questions about it now, you - - -
PN217
MR GRESTY: Well, what this says and for a person who just claimed that clause 5, unchanged, unamended deals with it, you are quoted as saying expanding of clause 5. What did you mean by that? Sorry, do you recall saying that?---I'll have to look at the document. There was a number of items discussed during those meetings.
PN218
Well, if you can't recall it - it is possible, sir, I just came across this, it may be appropriate if we took a short break.
PN219
MR SHORT: No need for a break. I've got copies of the documents. I propose to deal with it through Mr Jarvis, but I've no difficulty with copies being made available.
**** MARTIN PICKLES XXN MR GRESTY
PN220
THE COMMISSIONER: It might be useful, then, if we do that and we'll mark it for identification at present and it can be confirmed
during the evidence of
Mr Jarvis. We'll just mark that for identification. This is a document headed and I presume this is the same as the one you've
got, Mr Gresty. It's headed extract for K Jarvis's personnel notes taken on 1/4/03 and it's just a half a page of writing and we'll
just mark that for identification as ASC8 and have it confirmed through
Mr Jarvis later.
MFI #ASC8 EXTRACT FROM PERSONNEL NOTES TAKEN ON 01/04/2003
PN221
THE COMMISSIONER: Yes.
PN222
MR GRESTY: I've provided you with a copy. The statement attributed to yourself has you saying expanding clause 5 of EBA?---Maybe it's got a question mark after it. A number of the things we discussed during these meetings, these aren't my minutes. I have my own minutes. During some of these things, we've asked them and the reason for issuing document ASC7 was to ensure that everyone was clear what was going on. I believe and as I recall, I suggested maybe it would be worth expanding clause 5 to make it clear for everybody. You'll notice underneath that Mr O'Brien says he believes it already covers, there was no point in progressing, no point in expanding, he believes it covers it.
PN223
Well, he may well have done, but we're not talking to Mr O'Brien at the moment. We're talking to you, so what you said just previously is that you believed that clause 5 unamended, unchanged dealt with it?---Yes.
PN224
Now, you're quoted as saying that you could see some benefit in expanding it?
---No, for clarifying it, maybe to clarify it, to put the actual words in there, bar coding, but it was said that bar coding was already
covered by clause 5. That was agreed with the meetings.
PN225
Sorry, let's step back a bit. Are you denying that you made the comment with respect to expanding clause 5?---No.
PN226
So you did say that you saw benefit in expanding clause 5?---I believe I said it may be of benefit to expand it, to make it clearer that we've already clarified it in these, which is ASC7 as well.
PN227
So you have some doubts about clause 5 as it is now, as it was in the
previous - - -?---I had no doubts about it covering it, bar coding. I made a suggestion that it might be easier for the workforce
to understand it or clarify it for future reference that it said something in there about bar coding, but as we agreed, clause 5
already covered bar coding. It mentions technology.
**** MARTIN PICKLES XXN MR GRESTY
PN228
It may mention it, it may mention it, indeed, but there's no specific reference in clause 5 to the use of bar coding, is there, so are you saying there's an all embracing clause in clause 5?---It mentions technology and introduction and use of technology.
PN229
It certainly does, it certainly does, but there was no agreement to the specific item of bar coding being introduced under technology. The bar coding is defined as being removed. Bar coding is a method of achieving those things, but being removed by the company, withdrawn?---It was withdrawn on the basis that it was agreed as stated in ASC7, if I can quote from it:
PN230
Agreed by management and unions at ASC 2003 discussions in meeting number three that clause 5 of the current EBA covers this point adequately.
PN231
And when we're talking about the point adequately, if I refer you back to page 3, it mentions the introduction of bar coding, agreed by all parties present and recorded as such.
PN232
Well, I'm not quite sure that any of the minutes actually says that and you've been involved in taking the minutes and you were concerned and you raised questions about the ability, the capacity of clause 5 to do that?---That was during discussions at meeting number three, all right. Subsequent to that then was tabled, following meeting number three was tabled this list of claims where it was written out and clarified in these notes.
PN233
I don't dispute with you the fact that there were discussions and they were ongoing. Not all of the discussions were recorded. The pertinent comments were. I think the point that one of the company's negotiating people expressed a view that clause 5 needed expanding?---Clarification. That's your interpretation of it.
PN234
Well, I quote what you're alluding to have said, so I think we cannot assume there was total agreeance that clause 5 did what you're claiming?---Well, I think we agreed at meeting number four that the minutes covered it and were clear and concise.
PN235
Well, that may be four, but subsequent to that, we have a statement - - -?---Well, that's prior to that meeting.
PN236
One of the company's negotiating team say that they have doubts about the capacity?---It wasn't about the capacity. It was referred to me by one of the negotiating team. My comment was it merely needed expanding to give greater clarification, not the capability to implement bar coding.
**** MARTIN PICKLES XXN MR GRESTY
PN237
So it needed some specific reference to bar coding inserted? Was that your intention?---During these discussions and you remember, you recall these discussions, lots of points are discussed and raised and some of them - I said perhaps we need to expand it to make it clearer. Mr O'Brien replied that he believes the clause already adequately covers it, not a problem. That was reflected and these were taken prior to this document being written which is ASC7 and in ASC7 under appendix 1, clarification was then identified there.
PN238
Thank you, Mr Pickles. I have no further questions.
THE COMMISSIONER: Mr Wilder.
<CROSS-EXAMINATION BY MR WILDER [11.12AM]
PN240
MR WILDER: Yes, Commissioner.
PN241
Mr Pickles, I refer you to ASC5, page 3, number 3, summary of log of claims?
---Sorry, can you repeat that?
PN242
Page 3 of ASC5, number 3, summary of log of claims?---Yes.
PN243
The first dot point there, do you agree that that specifies the introduction of bar coding as management item number 12?---Yes.
PN244
What does the title above that say?---Withdrawn.
PN245
I refer you to ASC6, again page 3, point 3, summary of log of claims?---Yes.
PN246
The first dot point says management item number 12. Does that specify introduction of bar coding?---Yes.
PN247
Introduction of time collection material, control processes, work order administration, progress collection?---Yes.
PN248
What is the heading above that?---Withdrawn.
PN249
No further questions, sir.
THE COMMISSIONER: Mr Braithwaite.
**** MARTIN PICKLES XXN MR WILDER
<CROSS-EXAMINATION BY MR BRAITHWAITE [11.13AM]
PN251
MR BRAITHWAITE: Mr Pickles, you've indicated that the introduction of bar coding was a significant issue. The company put it on the table for clarification so there weren't any problems with its introduction. Can you explain what the discussion was as far as how it would be implemented under clause 5?---Sorry, I'm not - I don't understand that question.
PN252
Well, you've indicated that the introduction of bar coding was adequately covered under clause 5. What I'd ask is utilising clause 5, what was the process of the introduction for bar coding? What was agreed?---Clause 5 mentions the introduction of technology to increase the efficiency of the company.
PN253
Well, it actually says based on utilisation, but that's not the question. The question is what was the discussion around how clause
5 could be used to implement bar coding, because there is no process in clause 5? Clause 5 is a preamble, it's an objective, it's
an aim. Now, if it was agreed that it was going to be implemented, surely there was discussion how that process would occur?
---During some of the meetings which you unfortunately weren't present at - - -
PN254
I wasn't looking after ASC, that's correct?---There were a number of discussions that weren't totally recorded on these. It was agreed at meeting number one that we'd highlight in the minutes the main pertinent points and that was agreed by all parties present. During those, there were a number of discussions at the meetings, during meeting one and meeting two, an outline of what that process was, what it was, how it would work and how it would be implemented.
PN255
I can't see anything in any of the minutes where the unions have agreed to its implementation and, in fact, what the process was. What I want to know is what discussion was had as far as the implementation of what ASC say is an agreed matter, ie. bar coding, what was the process that was agreed for its implementation, because clause 5 has not process?---Clause 5 and clause 31, 31E makes reference to use of technology.
PN256
No, that's time keeping. What your evidence has been is that clause 5 adequately dealt with the issue of bar coding. I would ask what was the process of the utilisation of clause 5 for the implementation of bar coding?---That gave us the permission to use it, gave us the right to use bar coding.
PN257
What process was going to be used? What was agreed?---I don't understand what you mean by process.
**** MARTIN PICKLES XXN MR BRAITHWAITE
PN258
The implementation. How were you going to apply bar coding to the workforce covered by ASCs agreement?---That was discussed during the meetings, the issue of bar codes on work orders and work packs and the use of people swiping the cards, the bar codes, to register what they were actually doing.
PN259
My question still comes back to was there - I'll change the question slightly. Was there any discussion about the implementation of bar coding and via what vehicle?---Yes.
PN260
What was the vehicle?---I'm not following your question.
PN261
If you were going to implement a pay increase, you would take steps with your payroll people to implement the increase, would you not?---Yes.
PN262
In this case, you say you've got an agreement in relation to the implementation of bar coding to the blue collar workforce at ASC. What was the process you utilised or the company was going to utilise for its implementation that was agreed?---Discussion with the workforce, presentations, which were done and installation of the agreement, of the equipment and the equipment is installed with the agreement of the unions.
PN263
And that was all in the minutes of ASC7, ASC6 and ASC5, because I don't see anything about implementation or discussion?---No, they mentioned earlier on, it was agreed at meeting number one that we'd just list the main pertinent points and not the full discussions and total discussions and each and every word that's spoken.
PN264
I put to you, Mr Pickles, that there was no agreement on the implementation of bar coding, nor was there any agreement in relation to the implementation process of bar coding?---Well, there was agreement and it's recorded in the minutes and I refer you back once again to ASC7:
PN265
Agreed by management and unions that clause 5 of the EBA covered the introduction of bar coding.
PN266
Well, again, Mr Pickles, the minutes and you haven't been able to give me an answer on what the process was as far as the introduction
of bar coding. I say it wasn't discussed. On that basis, sir, there's no answer to my question?
---Unfortunately, you weren't there, so perhaps if Mr Caine was here, who was present at that time, he could fill that matter in for
you.
**** MARTIN PICKLES XXN MR BRAITHWAITE
PN267
Well, I was asking you to fill me in, Mr Pickles, and unfortunately you can't, because I was saying that there was no process agreed. If the Commission pleases.
PN268
THE COMMISSIONER: Do you want to clarify any of your answers?---No. I believe we discussed that as recorded.
THE COMMISSIONER: Yes, Mr Short.
<RE-EXAMINATION BY MR SHORT [11.19AM]
PN270
MR SHORT: Mr Pickles, you've been asked some questions about MFI ASC8. Now, you have that still before you?---Yes.
PN271
This is the notes of Mr Jarvis. Mr Jarvis's note reflects that Mr Caine talked about the introduction of bar coding not an EBA issue?---Yes.
PN272
Can you tell us anything about that?---Well, I refer back to the point again that it was discussed that it wasn't an EBA issue, because it was already covered by the EBA. It wasn't part of the EBA discussions that were needed to continue for the 2003/2006.
PN273
That's what you understood Mr Caine to be - the point Mr Caine was making?
---Yes.
PN274
That you didn't need to negotiate it because you already had the ability to introduce bar coding?---That's correct.
PN275
What about Mr O'Brien? He's recorded as saying believes clause covers. What was said there? What can you tell us about that?---Well, as I mentioned earlier on, it was during the discussions that were held there, it was believed and agreed by all parties that clause 5 covered the introduction of bar coding.
PN276
The precise detail wasn't - how that would happen wasn't set out step by step, was it?---No.
PN277
The concept of bar coding being able to be introduced, was there any disagreement about that?---No.
PN278
Now, Mr O'Brien was negotiating for which union?---The AMWU.
**** MARTIN PICKLES RXN MR SHORT
PN279
And Mr Caine was negotiating for which union?---AWU.
PN280
Now, at the end, Mr Jarvis has noted agreed. What was agreed?---Well, following on from that Mr O'Brien said, he believes the workforce needed to agree on how it's going to be implemented and went on and the suggestion was made that it would be linked into the competencies and people would be reviewed on how it worked and how it did and it was agreed that that was probably a way to go. We had agreement that bar coding was acceptable, we already had agreement in the EBA to do that and perhaps we need to review the competencies.
PN281
Your enterprise agreements have a large list of competencies at the back of it, don't they?---Yes.
PN282
And so was the suggestion that you'd add in another competency presumably to do with scanning bar codes?---Yes.
PN283
That's not a complex matter?---No.
PN284
No management objection about that?---No, we had no objection about that.
PN285
But the review of competencies, did that end up happening?---No.
PN286
Has there been any issue, any difficulty about that?---No.
PN287
And in relation to - sorry, was there any suggestion that the workforce had some right of veto on the introduction of bar coding, that it needed to agree a particular process or bar coding couldn't be introduced?---No.
PN288
The agreement followed the various to-ing and fro-ing as recorded by you and as recorded by Mr Jarvis?---Yes.
PN289
At the end of the day, was there any doubt about there being an agreement?---No, there was no doubt.
PN290
And what was that agreement?---The agreement was that the EBA already covered the introduction of bar coding and there was no point in discussing it further during the discussions. There was lots of other matters to discuss.
PN291
I have nothing further by way of re-examination.
**** MARTIN PICKLES RXN MR SHORT
PN292
THE COMMISSIONER: Mr Pickles, you can stand down.
PN293
MR SHORT: And I ask that Mr Pickles be released.
THE COMMISSIONER: Yes, you can be released from further attendance,
Mr Pickles. Thank you.
<THE WITNESS WITHDREW [11.23AM]
PN295
MR SHORT: Now, is it convenient to call Mr Jarvis at this stage or would you like a short break?
PN296
THE COMMISSIONER: It might be useful to have a short break. I presume we can get Mr Jarvis done before lunch time.
PN297
MR SHORT: Yes.
PN298
THE COMMISSIONER: Mr Lemonius you said would be available at 2 o'clock our time.
PN299
MR SHORT: 2 o'clock South Australian time.
PN300
THE COMMISSIONER: And I understand we can organise the video link in here. Normally it's in court room 2, but I think we'll be able to do it in here today, so we'll have a five minute adjournment. We'll resume with Mr Jarvis.
PN301
MR SHORT: Yes.
PN302
THE COMMISSIONER: And that would mean Mr Jarvis before lunch,
Mr Lemonius at 2 o'clock and how long that will go and you've got one other witness or two?
PN303
MR SHORT: Possibly one other witness, possibly Mr Govel to explain a bit more about bar coding and I can also indicate if it assists
that I scanned to
Mr Lemonius last night copies of documents, at least ASC2 through to - up to 8, I think, so he's got those.
PN304
THE COMMISSIONER: We will just have to refer to them by their actual titles, the minutes of whatever meeting they are. We'll deal with it that way.
PN305
MR SHORT: Yes.
PN306
THE COMMISSIONER: All right, a five minute adjournment.
<SHORT ADJOURNMENT [11.24AM]
<RESUMED [11.33AM]
PN307
THE COMMISSIONER: Mr Short.
PN308
MR SHORT: Commissioner, during the break, Mr Pickles was good enough to draw to my attention, it was originally hand-written notes of a meeting of 1 April 2003, meeting number three and it's my oversight. I would seek to recall him so that he can tell us what he noted at that time and on that topic alone.
PN309
THE COMMISSIONER: These are the hand-written notes on what document?
PN310
MR SHORT: Of meeting number three, the meeting of 1 April 2003, which seems to be the meeting that has excited most attention, the one at which the company contends - - -
PN311
THE COMMISSIONER: Well, if you're talking about ASC5, I don't have any hand-written notes.
PN312
MR SHORT: No, what I am saying is he's drawn to my attention during the adjournment hand-written notes of that meeting. I seek simply to put to him and this is in particularly light of the cross-examination, what did he actually write at that time.
PN313
THE COMMISSIONER: Yes, all right. Any comment?
PN314
MR WILDER: Yes, Commissioner. I object because these are the hand-written notes, they're just someone's personal opinion. They haven't had a chance to be read or agreed on.
PN315
THE COMMISSIONER: Well, that's a matter for - you can cover that in cross-examination, I think. It a question of should he be withdrawn to at least speak to them, Mr Wilder, and I think the answer to that is probably yes, let him speak to them, let him give evidence on them. You'll be able to cross-examine him on that. To the extent, of course, that I take it into account, that's another issue altogether. I might not be persuaded to take it into account, but that's a matter for you in cross-examination.
PN316
MR SHORT: I apologise for that oversight, Commissioner. We call Mr Pickles.
THE COMMISSIONER: He will need to be resworn.
<MARTIN PICKLES, RECALLED AND RESWORN [11.35AM]
<FURTHER EXAMINATION BY MR SHORT
PN318
MR SHORT: Now, Mr Pickles, during the adjournment you drew to my attention your hand-written notes of meeting number three of 1
April 2003?
---Yes.
PN319
And those were notes that you made at the time of the meeting?---Correct.
PN320
And looking at the notes and I'll show them to you, are those the notes of the meeting of 1 April 2003?---Yes.
PN321
And I think among the matters that didn't make it into the official minutes were some hand-written notes of yours about an April Fool's joke that the unions played in the meeting?---Yes.
PN322
Was that to do with a revised log of claims?---Yes.
PN323
And that disappeared after they took a little break and came back and told you it was a joke?---Yes, that's correct.
PN324
And in relation to item 12, can you tell us what you wrote down?---Yes, on my notes I recorded that we expanded upon the tasks that bar coding would be used for. They would be used for tracking of tools, material control, tracking of storage, administration, document control and progress collection. Also I wrote down it was withdrawn because it was covered by clause 5 of the EBA, but that it was suggested that there was a competency review undertaken.
PN325
I would seek to tender those notes.
PN326
THE COMMISSIONER: There will be an objection, so we'll deal with that.
PN327
MR SHORT: I have no further questions.
THE COMMISSIONER: Thank you. Now, Mr Gresty.
<CROSS-EXAMINATION BY MR GRESTY [11.37AM]
PN329
MR GRESTY: Yes, thank you.
**** MARTIN PICKLES XXN MR GRESTY
PN330
Mr Pickles, you mentioned that the discussion regarding bar coding that your notes reflect were not the bar coding which had been removed. Is that correct? If we go back to that same position, what bar coding has introduced as item 12 in the company's - - -?---Withdrawn as an identified item.
PN331
Bar coding as defined by the company as being a method of time collection, material control, process work order, administration and process collection was withdrawn. However, discussions continued?---Sorry, can I say it was withdrawn from that list, which is a list of management items.
PN332
That description of bar coding was withdrawn and it's recorded in a - - -?---The item was withdrawn, not the description of it.
PN333
Well, you've answered the question, but nevertheless, discussions with respect to bar coding had a different - they were talking about calibrating tools and those sort of things, weren't they?---Material control, tracking, document control and progress collection.
PN334
Time recording was not part of that discussion that your minutes refer to?---Well, work order, administration and document control, yes.
PN335
So the withdrawal as expressed not total withdrawal, it took on a different form?
---I think we're talking semantics here. The item which is listed as item 12 which is introduction of bar coding was removed from
the list of management issues because it was already, after discussions at the three previous meetings or the three meetings, one,
two and three, it was already incorporated in the EBA. It was a waste of time discussing it, because it was already there. It was
withdrawn from our list of items to be identified as specific stand-alone items within the EBA.
PN336
I am not sure we actually agreed to withdraw something as we seem to have a distinct difficulty in determining exactly what form bar coding was. What we said repeatedly and what's documented repeatedly is bar coding is time collection, material control, process work order, administration and process collection. That was bar coding as introduced in the company's initial log of claims. That initial log of - that initial item in the company's log of claims was withdrawn. Now, that's contained in the EBA management issues and is listed under appendix 1, items withdrawn from the list. It clearly defines what bar coding was when it was sought to be implemented into the agreement and it's clearly identified when the company withdrew it from the log of claims?---Yes.
**** MARTIN PICKLES XXN MR GRESTY
PN337
No further questions. Thank you.
THE COMMISSIONER: Mr Wilder.
<CROSS-EXAMINATION BY MR WILDER [11.41AM]
PN339
MR WILDER: Thank you, Commissioner.
PN340
Mr Pickles, you mentioned previously and you've mentioned obviously in your notes there that there was some sort of agreement that there be discussions based on competency surrounding the bar coding issue. Is there anywhere - any official minutes?---Not during the EBA, no.
PN341
So I take it that's your personal notes, your understanding that the basis of competencies surrounding the bar coding issues and the negotiations towards the competencies haven't been addressed, is that correct?---During those meetings, no.
PN342
Secondly, you made the statement when my friend asked you the question regarding the implementation of bar coding and the ability that you believe that you can because bar coding is already in the EBA. Are you familiar with the EBA, Mr Pickles?---Yes.
PN343
Does it mention the word bar coding in the enterprise agreement anywhere?---No. During the discussions, it was referred to as technology, the use of technology and bar coding was new technology that was to be implemented and as such was covered by clause 5 which mentions - - -
PN344
Well, again I refer you to ASC5. These are the official minutes, are they not?
---Yes.
PN345
Again page 3, summary log of claims. Is it true that you've actually written here that item number 12, the introduction of bar coding, specifically bar coding, was withdrawn?---Yes, I have. Can I refer you back to page 2 which is the precursor to that statement, item 12, bar coding:
PN346
Following discussions, it was agreed at clause 5 of the current EBA covered this point adequately. As such, it was decided to be removed from the management list.
PN347
Section 3, the summary of what's gone on prior to that and you'll notice also there's a number of other items.
**** MARTIN PICKLES XXN MR WILDER
PN348
I will ask you the same question again. Where in any of the official minutes that have been read and agreed does it say that there's going to be any discussions surrounding the implementation, the process involved in the implementation that the parameters associated with the implementation of bar coding and where in these minutes does it mention anywhere that there will be any discussion on the competencies involved?---During the meetings and during the discussions, it wasn't intended to go down to those kind of levels of the implementation of each and everything that was on here. We during these things discussed the implementation of pay rises, but we didn't discuss the process of it. Likewise, we discussed the implementation of bar coding. We didn't discuss the process of the introduction.
PN349
You have specifically mentioned the item of bar coding in these minutes and there was a management list, log of claims so to speak from management and is it true or is it not true that bar coding as a specific item has been withdrawn?---In the summary following on from the main body of the text, within those minutes.
PN350
No further questions.
PN351
THE COMMISSIONER: Mr Braithwaite.
PN352
MR BRAITHWAITE: Commissioner, I'd seek to reserve my right to recall
Mr Pickles once I've had an opportunity to view the hand-written notes of
Mr Pickles.
PN353
THE COMMISSIONER: Yes, we don't have copies of those hand-written notes. I would like to have a look at them first of all. Mr Pickles, you say these were notes - were they taken during the meeting?---During the meeting, yes.
PN354
And they were notes taken by you during the meeting?---Yes.
PN355
This is your hand-writing?---Yes.
PN356
We will get copies of these notes, Mr Braithwaite. I think what we'll need to do is just again take a couple of minutes' adjournment
while we get copies of this. The parties can have a look at it and then we'll retain you in the witness box,
Mr Pickles. That might be best. We will only be a couple of minutes.
<SHORT ADJOURNMENT [11.45AM]
<RESUMED [11.52AM]
THE COMMISSIONER: Mr Braithwaite.
<CROSS-EXAMINATION BY MR BRAITHWAITE [11.52AM]
PN358
MR BRAITHWAITE: Mr Pickles, do you have a copy your hand written notes?
---I do.
**** MARTIN PICKLES XXN MR BRAITHWAITE
PN359
Mr Pickles, could you show me in your hand written notes at point 12 where it indicates that there was agreement on the implementation of barcoding and the process that was to be followed?---I think we’ve been down this one before with Mr Wilder in there are, you know, I've covered it and said they are withdrawn because of clause 5 EBA of the competency review.
PN360
So in your words there is no process for the implementation of barcoding within your hand written notes of the- - - ?---As I mentioned before to Mr Wilder in his previous examination we took down a number of points there, we didn’t go down into the nitty gritty, nuts and bolts of our each and every thing and acts and implement it.
PN361
So you had no discussion or agreement about the process that is not in clause 5 for the implementation of barcoding?---Not the process of implementation.
PN362
Thank you. Thank you, Commissioner.
PN363
THE COMMISSIONER: Now, Mr Wilder or Mr Gresty or Mr Braithwaite, any objection now to putting forward these notes as a formal exhibit in the matter? Is anyone tendering it?
PN364
MR GRESTY: No, sir.
THE COMMISSIONER: I mean, the question to what you make of it is another issue. I think what we’ll do then is accept these notes and because they go with the meeting of 1 April 2003, and that’s ASC5 those minutes, if we mark this one as ASC5A I think that will keep the papers together. ASC5A, that’s the hand written notes of the EBA discussions in the meeting of number three on 1 April 2003, handwritten notes from Mr Pickles.
EXHIBIT #ASC5A HAND WRITTEN NOTES OF MR PICKLES
PN366
Sorry, Mr Short, anything? Any further questions?
PN367
MR SHORT: No.
**** MARTIN PICKLES XXN MR BRAITHWAITE
PN368
THE COMMISSIONER: And Mr Pickles, you can this time stand down and this time really be released?---Thank you.
<THE WITNESS WITHDREW [11.54AM]
MR SHORT: Now, once again apologies for that interruption and I seek to call Mr Jarvis.
<KENEITH JOHN GEORGE JARVIS, SWORN [11.55AM]
<EXAMINATION-IN-CHIEF BY MR SHORT
PN370
Now, Mr Jarvis, how long have you been employed by the company?---Since May 1990. 15 years.
PN371
How long have you held your current position?---About three years.
PN372
What does your current position involve?---Basically I have the direct interlink with the shop stewards on all industrial matters. I also look after all resources within the production area.
PN373
You’ve been involved in enterprise agreement negotiations with the company in the past?---Yes, I have. That will now be three enterprise bargaining awards I’ve actually been involved with.
PN374
So the 2003 agreement, the 2001 agreement and the one before that?
---Affirmative.
PN375
And you were part of the management negotiating team for those three enterprise agreements?---Yes, I was. I was part of the negotiating team. I was there to assist Robert who was our head negotiator. I was also chair person at alternative meetings as well.
PN376
All right. Now, briefly explain to us the time according to job coding and how that presently works on the site?---The present time collection system?
PN377
Yes?---The present time collection system requires that individuals clock on either at the gate or in the production case at our facility, at our work areas with their swipe card, their proximity reader and thereby recorded as being on site. That enters the information at time collection system which later on the supervisors that will then add to it a job number and that there will then facilitate the individuals for them being paid.
PN378
Now, when employees commence work I understand they’re given a work pack by their supervisor?---Presently an employee who is given a job will be provided with a work pack. That work pack will include various information, materials, work to be done and an outline with regard to the scheduled requirements, i.e. the time to be taken.
PN379
Is that blue collar employees?---Sorry, yes, that’s for blue collar employees.
**** KENEITH JOHN GEORGE JARVIS XN MR SHORT
PN380
Those subject to the enterprise agreement?---Those subject to the EBA.
PN381
Right. What change, if any, would introduction of barcoding result in to that work practice?---Barcoding will provide the company with greater efficiency and recording progress. It will provide the company with a daily progress report on all work done which will facilitate those being able to bill the customer more accurately, quicker and basically encourage the flow of monies for all those jobs.
PN382
So would it involve effective utilisation of technology?---Yes. Can I - as
Mr Pickles said before we have a job card - sorry, a swipe card. All employees have one. It has a generic barcode on it at the
present time. On to the new system that barcode would be replaced with a barcode specific to the individual. That allows the individual
on and off the site for security reasons, but it will also be used onto the new system to actually, if you will, swipe on and then
swipe on to another barcode which will come with the work pack. They’re facilitating that the individual’s actually
been booked against that particular work order or that particular task.
PN383
So will that enable more accurate and timely reporting to clients?---The present system that we’ve gone and got with the progress report, if we have an issue with the systems that we’ve kind of got in place it could actually take up to two weeks to actually highlight that particular issue. With barcoding it’s a daily issue. It’s a daily progress report. So if we have any issues at all with work, any problems which come up, they can be flagged on a daily basis.
PN384
And will it also, the introduction of barcoding, allow more efficient and timely billing for work performed?---Affirmative.
PN385
Will it assist to provide the company with a competitive advantage?---Yes, I believe it would do.
PN386
And more efficient use of resources?---Very much so, very much so.
PN387
And in relation to what employees will actually do differently with barcoding when it’s introduced, they get their work pack, what will they do that they don’t presently do?---Basically there will be a number of readers placed around the company, the employee when he receives the work pack will run his card past the reader and then run the work pack past the reader, that will then record that the individual has been on that particular task.
**** KENEITH JOHN GEORGE JARVIS XN MR SHORT
PN388
So they take their existing card and- - - ?---With a slight modification, as I said. It has a barcode on it, but it is generic one at the present time. They need to be more specific to the actual individual.
PN389
So a different strip on the front?---That’s all, a different strip. Other than that no other change.
PN390
And are you aware of any good reason why barcoding should not be introduced?
---No, I am not.
PN391
If I can turn now to the negotiation of the 2003 enterprise agreement. Now, are you aware of minutes taken of the negotiation meetings?---Mm.
PN392
And do you recall that a list of EBA matters were issued and provided at meeting number one?---That is correct, yes.
PN393
That’s ASC3 in these proceedings. I think you’re aware that introduction of barcoding was listed as item 12 on that list?---Yes.
PN394
At the meeting of number three of 1 April 2003 - perhaps if Mr Jarvis could be given these minutes?---Thank you.
PN395
Item 12- - - ?---Sorry, which one again sorry?
PN396
ASC7 and ASC6 each deal with the meeting of 1 April 2003?---Mm.
PN397
And you’re aware that item number 12, barcoding, was withdrawn from the list of management issues on 1 April 2003?---Yes.
PN398
What can you tell us about what happened in relation to that?---Obviously during all negotiations there’s a lot of chatting going on, there is a myriad of points to be discussed. With regards to item 12 my recollection on that is that it was considered during those negotiations to already be covered by the EBA and therefore didn’t need to proceed any further as it was already covered.
PN399
Looking at ASC7, EBA management issues status document, on top of page four which follows on from the previous page and deals with item 12?---Mm.
PN400
You’re aware of the reference in relation to item 12 that clause 5 of the current EBA covered this point adequately?---Yes, apparently that was - sorry. That was argued, discussed during the meeting, points were put across. My recollection is that the union negotiators at that particular time argued that clause 5 adequately covered the requirement for barcoding. Mr Pickles made a gesture of whether that clause 5 could be actually expanded in any way, shape or form to clearly modify if clause 5, if you would, to basically actually denote barcoding and it was thought that clause 5 quite clearly covered the point with regards to the new technology.
**** KENEITH JOHN GEORGE JARVIS XN MR SHORT
PN401
So did that leave any issue to be negotiated about the introduction of barcoding?
---I believe not.
PN402
What was your understanding of what would happen about barcoding?
---Barcoding would be implemented in the life of this agreement, obviously by consultation with the stewards with regards to training
of the boys and the rest, implementation of equipment, that they would just follow through with the life of the agreement.
PN403
So that would be a process matter just as there were no doubt many other process matters?---There was a lot of points for discussion and we worked our way through and they were basically worked through. They were withdrawn, agreed, whatever.
PN404
Right. Now, MFIASC8 I think is a record of some notes that you made?---That is correct.
PN405
Do you recognise those notes?---Yes.
PN406
What can you tell us about how they came into being?---The beginning of 2004, I think it was. We’d basically had some discussions with the unions with regard to the implementation of barcoding. It was felt that it was going to become an issue so - my writing is shocking. I took the opportunity to basically place on computer my notes so they were legible.
PN407
So did you type up hand written notes that you made at an earlier time?---At an earlier time, not until the beginning of 2004.
PN408
Yes, but when did you originally make notes at the meeting of- - - ?---During the actual meeting.
PN409
Right. Are these an accurate record of your hand write notes of 1 April 2003 in relation to item 12?---Very much so, yes.
PN410
THE COMMISSIONER: When did you type the note, Mr Jarvis?---2004.
PN411
On the same day?---No, sorry. The original negotiation was in 2003, that’s when I made my original hand written notes.
**** KENEITH JOHN GEORGE JARVIS XN MR SHORT
PN412
Yes. So you kept your hand written notes in the file somewhere for quite some time and then when did you actually type this document MFI- - - ?---2004. The beginning of 2004.
PN413
MR SHORT: And are you hand written notes still available if anyone wanted to see them?---Yes, very much.
PN414
Are they here today?---Yes. I have all my notes from all EBA negotiations.
PN415
So if anyone wants to see your notes about item 12 of 1 April 2003?---Yes, I’ve brought them.
PN416
But in relation to item 12, barcoding, could you just take us through your notes, what you recall?---That particular meeting, my memory recalls that Robert was running late that particular day and Martin basically took the chair and we discussed one or two other points. Robert then came into the room some 20, 30 minutes late, took over the chair - sorry, took over our main negotiating chair and then we got down to barcoding. Robert’s basically indicated his thoughts with regards to barcoding and what it would be used for. There was some conjecture with regards to it being used as a mechanism to admonish people who’d gone and lost tools. That was qualified that that would not be the case. Joe Caine for the AWU basically indicated that the introduction of barcoding was not an EBA issue because it was already taken care of on the preamble and clause 31. Basically there was then some further discussion about clause 5. Martin offered the possibility of clarifying clause 5 and directly including the word in barcoding in it. As my notes recall there Mr O’Brien basically believed that the clause covered it. There was further discussion. Mr Wilder brought up that the workforce would need to agree. That was - again I didn’t have a chance to write everything verbatim, but that was basically with regards to competencies and ensure that the lads were basically, if you will, rewarded for using what would be a new skill. At the end of that particular discussion it was agreed that it was no longer a point and therefore could come off the management log of claims therefore it was withdrawn from the management’s log of claims.
PN417
Now, withdrawn on the basis that barcoding would not or could not be introduced or on some other basis?---No, it was basically withdrawn because we had agreement that the EBA actually covered it.
PN418
That it could be introduced?---Yes, affirmative.
**** KENEITH JOHN GEORGE JARVIS XN MR SHORT
PN419
Now, you recorded in your notes reference to reviewed competencies. Was that a matter that was discussed in the course of negotiations?---Yes. Parts of the managements log of claims, I think number 15, we’ve actually gone and put down the requirement - sorry, I’m lost.
PN420
We’ve got ASC3 2003 EBA management issues, item 15?---Yes. We’ve actually gone and put down there:
PN421
Undertake to review competencies within six months of signing the EBA.
PN422
As far as management was concerned the main reason behind that was because we have gone and changed our mode of operation. We no longer build submarines, we now maintain them. The current competencies that we have in place, quite a few of them pertain to building submarines therefore are no longer applicable. So the intent was to actually sit down with the unions and come up with a new range of competencies which would actually mirror the work that we were doing with regards to maintaining submarines.
PN423
Now, following certification of the agreement did the company sit down with the unions about reviewing competencies?---Yes we did do, though admittedly it was outside of the six month that we basically agreed to.
PN424
I think it was about the seventh month?---Well, seven, seven and a half months in. We sat down, I provided the unions with a range of competencies, basically management had gone and spent quite a bit of time in putting together a competency sheet which actually reflects the current mode of work. There was a lot of discussion, but unfortunately no agreement could be reached. So it didn’t progress.
PN425
So a review was commenced but didn’t ultimately lead to any change in the competencies?---No, it didn’t.
PN426
Now, arising out of any of the discussions which resulted in the 2003 enterprise agreement or anything subsequent to that time are you aware of any barrier that exists to the introduction of barcoding? Is there any reason that you know of why the company is not entitled to introduce barcoding?---No. No barrier.
PN427
I seek to tender those documents.
**** KENEITH JOHN GEORGE JARVIS XN MR SHORT
PN428
THE COMMISSIONER: Is there any objection then to the tender of MFIASC8, the formal tender of that? Remember, the original hand written notes are available if people want to see them. If there’s no objection then we’ll mark those the extract for K Jarvis’ personal notes taken on 1 April 2003.
EXHIBIT #ASC8 EXTRACT OF K JARVIS’ NOTES OF 1 APRIL 2003
PN429
MR SHORT: I have nothing further, if the Commission pleases.
THE COMMISSIONER: Mr Gresty.
<CROSS-EXAMINATION BY MR GRESTY [12.13PM]
PN431
MR GRESTY: Thank you, sir.
PN432
Mr Jarvis, I will refer you to the ASC8 which are your personal notes taken on 1 April 2003 albeit it computer driven. The third person down, Mr Lemonius, in terms of talking about the barcoding did not mention recording of time as per the individual which is something you mentioned when you were talking about barcoding?---Yes. May I read from my notes?
PN433
Robert Lemonius, material control, removal of equipment and barcoding for traceability of the location, work coded documents, barcoding as completed with link to corporate competency systems, boost efficiency and reduced paperwork, progress collection -
PN434
which obviously is married into the time collection system -
PN435
- computerised operation by supervision in auto progressing collection would be carried out by both supervisors and BC.
PN436
BC is shorthand for blue collars.
PN437
Do you recall any discussions going on where it was clearly indicated that people had reservations about the introduction of barcoding?---Since 2004 in various negotiations, various discussions that I’ve had with the stewards, it is undoubted that there are fears on the shop floor with regards to the implications of barcoding or the implementation of barcoding.
**** KENEITH JOHN GEORGE JARVIS XXN MR GRESTY
PN438
But that was only after certification of the agreement. You don’t recall there was any reservations about barcoding through those negotiations?---The only one that I can actually remember at this time, Mr Gresty, was the one to ensure that the lads would be correctly recorded in their competencies as acquiring a new skill.
PN439
That was the only criticism that was- - - ?---Sorry, sorry. There was one which is mentioned there which was Mr Davidson’s point about people being held responsible for the loss of tools. That was the only other one.
PN440
You don’t recall any reservations being raised about the barcoding as originally proposed being a method of checking people and being used as a disciplinary action or there was no mention of it being a time in motion study?---Not at that time, not at that time. I mean, obviously there was quite a bit of discussion with regards to it, but no direct - I don’t think time in motion was mentioned. It has been since. It wasn’t mentioned during the EBA.
PN441
You don’t recall it being mentioned?---Sorry, I don’t recall it being mentioned. Quite correct, sir.
PN442
But it could have been mentioned?---It could have been, yes. I have no recollection of it at all.
PN443
There was no mention of time recording being used in Robert Lemonius’ comments, was there?---No.
PN444
It’s a different presentation than originally appeared in clause 12, wasn’t it?---I would disagree. I mean, we’ve gone and mentioned there the progress collection. Progress collection is very much keyed into time collection, ie. the amount of time the individual is on site working on that particular task. It’s very much keyed into progress collection.
PN445
So we’ve already agreed that the reservations that people may have as barcoding be a method of tracking individuals with respect to time spent on the job may have been raised, there may have been reference of it, it may have removed that aspect from the- - - ?---I have no recollection of those particulars being raised. However, in saying that the conversation was quite varied, but I can not remember that being - the instances I’ve gone and mentioned were definitely raised. They’re the ones I recall which was the loss of tools and ensuring that the individual’s skills matrix, skills competency was actually recorded to indicate that they could now utilise barcoding.
**** KENEITH JOHN GEORGE JARVIS XXN MR GRESTY
PN446
So wasn’t that because there was a focus away from the crew time in motion and tracking people and possibly disciplining to a more practical application of barcoding? Was that not the thrust of the discussions?---Again you were there, John - sorry, Mr Gresty. We had a lot of subject matter to discuss and a limited time to do it. Yes, we could have actually gone and agreed on this particular instance by all parties without dotting all the it’s and crossing all the it’s. It would be apparent the reason why we’re here is because of that. I do not recall any fears of the workforce being relayed by the stewards at that time with regards to the implementation of barcoding.
PN447
But that will actually concede it could well have been- - - ?---It has definitely been mentioned since 2004, Mr Gresty. That is one of the main motivators that the workshop - sorry, the workforces - worry about the implication of barcoding.
PN448
Now, one of the attractions you say you have with respect to barcoding is that it enables the individual to log on to a work pack and work through that work pack and then swipe off the work pack and therefore you have an accurate amount of time allocated by that person to that individual work pack?---Yes, agreed.
PN449
And that provides greater efficiencies? It’s a very accurate way of tracking all of this?---It will basically give us a report within 24 hours whereas the present system takes two weeks. 24 hours it will increase our efficiency. If I’ve got a problem with resources in a particular area, I’ve gone and gotten congestion problems, all these problems will be highlighted by this. It will be highlighted to all and sundry, not just to my supervisors.
PN450
Well, doesn’t the system also have the ability to allow the supervisor to override? So if I swipe on at 8 o'clock and swipe off at 4 o'clock that gives me an eight hour period when I’m swiped on to a job pack?---Mm.
PN451
Does the system allow somebody else to over swipe that and allow me a different figure other than the one I’ve actually got?---The
process which is being obviously looking to be implemented will give the supervision the ability to be able to modify what an individual
has gone and put in. From the extent of if somebody’s gone and clocked onto the work pack at shall we say 8 o'clock in the
morning and has not gone and clocked back off it and has basically left site at
4 o'clock, or has attended a meeting, a training course, has gone and worked through lunch, these things that the individual may
have gone and forgotten about, the supervisor can then obviously correct them.
**** KENEITH JOHN GEORGE JARVIS XXN MR GRESTY
PN452
So except in the parameters of human beings and they forget one or two things, but surely the system wouldn’t allow the managerial person to manipulate the system to sort of falsify the hours spent on the system? Surely you’re not suggesting that?---I wouldn’t have thought that in any way, shape or form.
PN453
So every hour that I spend barcoding on to a work pack is a true and accurate record of the actual hours I spend and it’s not capable of being altered or modified to either add to or subtract the actual hours on the site?---Except for what I said earlier which is where- - -
PN454
Except just where the bona fides- - - ?---Yes. I mean obviously it’s the only thing that we talked about, is whether a genuine forgetfulness on the part of the individual to record a course he’s just been on, whether it would be confines based training or whatever, he may have gone and forgotten to record that, the supervisor will then obviously pick that up.
PN455
So your choice of words, not mine, were that the manipulation of the system would not be manipulated, it may just well being recorded accurately by somebody else?---I don’t think I used the word manipulated. It can be corrected if there has been an oversight by the individual, yes.
PN456
Going back to your notes, do you have any broader recollection of Mr Pickles’ desire to expand clause 5?---Purely and simply from the point of view - and again I’ve not recorded it verbatim and obviously I’m part and parcel of negotiations, I think Casey was actually chair person at this particular meeting - I think Mr Caine had basically gone and inferred that obviously clause 5 covered this. There was further, obviously, thoughts that passed to and from company to the unions with regards to the preamble. Martin made the offer, you know, for further clarification to ensure that we don’t have a problem later do we wish to slightly modify the preamble and include barcoding within it where it says technology and in brackets barcoding. It was open to discussion, however it was felt it was not required. Now, it may as I’ve gone and put down Mr O’Brien has gone and said delete the clause that covers it. I mean, Mr O’Brien was not on his own with that thought.
PN457
Do you recall any reference being made to expanding clause 5 to embrace the implementation clause or procedural application of clause 5? Was that raised by anyone?---No, it wasn’t. I mean, for obvious reasons.
**** KENEITH JOHN GEORGE JARVIS XXN MR GRESTY
PN458
What were the obvious reasons?---There were there discussions and EBA. If my thoughts serve me correctly management’s log of
claims ran for something like
22 points, the union’s log of claims was quite extensive as well. We had a number of meetings, the number of meetings tended
to go for three or four hours. We wanted agreement to write an EBA not basically implementation of what would be another system
on site. That could be determined later on between myself and the stewards.
PN459
So the current clause 5 is the same clause 5 that has existed for at least the last three agreements?---As far as I can recall it is the same clause. I don’t think there’s been much modification at all to it. I think it’s fairly consistent in terms of at least the content.
PN460
Well, I can assure you having got the three copies that clause 5 is the same now as it was for those three agreements which would indicate that clause 5 has had the test of time and may not have wanted any changes?---Yes, so it should do. I mean, it’s agreement between the parties to embrace whatever we can do for us to work together to make certain that ASC can be a force in ship building.
PN461
And it also may well be accepted in the length of time clause 5 has remained unchanged or sought to be changed by either party that clause 5 may not have been able to accommodate, in its current form, barcoding?---And had that there been a point of conjecture during the meeting I’m quite certain that we would have probably elected to continue with negotiations on it.
PN462
There may well have been a lot of assumptions made?---Once again, John, I mean it was agreed by both parties, it wasn’t agreed singly by anybody, anybody on behalf of the unions or anybody on behalf of the company. It was agreed by all parties that the current EBA covered it.
PN463
Thank you, Mr Jarvis. I have no further questions.
PN464
THE COMMISSIONER: Mr Jarvis, if the company was to introduce barcoding - I mean, let’s say from today or from a given date - how long would it take to get it fully operational and what would you have to do between the date on which you decided to do it and the day in which it became operational?---We have done quite a bit of work already with the installation of hardware for the system through negotiations with the stewards so most of the hardware is actually in place. What we’d have to do is basically issue everybody with a new swipe card with their own specific barcode on it, we’d need to add barcodes to the work packs, as soon as that was done we’d be basically up flying. You’d probably be talking weeks, not months.
**** KENEITH JOHN GEORGE JARVIS XXN MR GRESTY
PN465
Would you be talking about training of the employees or anything like that?
---We’ve actually gone and taken all employees through a briefing process with regards to barcoding. They’ve been shown
that the- - -
PN466
When was that may I ask?---When was that? That was in December of 2004. I think it was about 14 briefing sessions held by Mr Gabelle
and John Mill,
Mr Mill. So the lads have actually gone and have been walked through the system, what it will entail, what their input will be.
Obviously there’s been quite a bit of time, water, passed beneath the bridge. We would look to be doing that again, short
training sessions with the lads and so on.
PN467
How long would all of that take do you say? Say, for example, if today the decision was made today to introduce barcoding, when do you think you’d actually get people swiping them?---My thoughts, as I said, it would be weeks, not in months.
PN468
It would cover those training sessions or briefing sessions that you talked about, refresher courses or whatever?---The briefing sessions would be just a very, very brief - I mean, 30 minutes tops. We’d be able to implement it quite quickly.
Yes, all right. Sorry, Mr Wilder.
<CROSS-EXAMINATION BY MR WILDER [12.29PM]
PN470
MR WILDER: Yes, Commissioner.
PN471
Mr Jarvis, can I call you Ken?---You can call me whatever you want.
PN472
Maybe I can’t in this room, by anyway. Look, you obviously negotiated the last three EBAs that you stated. You were quite familiar with this enterprise agreement I believe. Clause 35 relates to the time collection associated with the personal access cards, does it not?
PN473
MR GRESTY: 31.
PN474
MR WILDER: 31, sorry, yes?---Yes, it does.
PN475
I can’t read my own writing, sorry. Now, that sets the parameters associated with personal access cards and the time collection. Are you familiar that there’s anywhere in this current enterprise agreement that sets any parameters associated with barcoding?---Barcoding per say, no it does not mention barcoding, however it does mention progress reporting which barcoding allows us to do in a more efficient manner.
**** KENEITH JOHN GEORGE JARVIS XXN MR WILDER
PN476
So therefore then you are solely relying on clause 5 for the process and parameters of the implementation of barcoding?---Personally speaking no. I’m also involved in clause 31. As I’ve gone and said clause 31 does mention progress reporting and barcoding is just a tool that will provide the company with a more efficient way of progress reporting.
PN477
But barcoding is a totally different system to the current personal access and entry cards that the workforce have now?---Not a totally different system, no. It’s the - again, it’s the same card. As far as the lads are concerned all that will be modified is that the generic barcode will become an individual barcode. They will use that. All the boys will actually do on a daily basis - not on a daily basis, I need to withdraw that. What the boys will do when they open up their work pack is that they will just swipe the work pack and their card and that is it, done.
PN478
Well, if it’s not a totally different system then why would the company have taken so much time and effort and money into trying to implement the system if the personal access card is, as clause 31 sets the parameters for the personal access card, there’s nothing there for the totally different system under a barcoding system?---The personal access card obviously provides the individual, because of security requirements, access to the site and for production of workforce it provides them with a mechanism of clocking on at our particular work area, work arena as per the EBA. It does mention there that under clause 31 the swipe cards can be used for - I haven’t got a copy of my EBA - can be used for things like tool inventory by either booking out of tools in and out and progress reporting. Does it not?
PN479
That’s correct, but doesn’t the barcoding system expand on that?---Well, barcoding system is just a tool to give me a more efficient way of progress reporting. It gives me a mechanism of instead of the slightly promulgated way that we do things now to give me a more effective, efficient way both the company and obviously for the customer. The customer has indicated that they wish for more effective progress reporting, more day to day progress reporting. As you will recall the company brought on a consultancy firm at our request and the governments which was the electorate. Now, electorate vote has basically gone and inferred that for better progress reporting the utilisation of barcoding is a good tool to take on.
**** KENEITH JOHN GEORGE JARVIS XXN MR WILDER
PN480
Seeing as the company is so heavily relying on clause 5, the implementation of the barcoding system, I fail to see anywhere in clause 5 where it actually states any sort of parameters or processes involved in that. Do you agree that the effective utilisation of technology allows the company to implement barcoding? Does that general statement- - - ?---I think you’ve basically gotten - again I’ve not got my EBA with me, it’s over there - it’s basically, I think basically you’ve got to read the preamble in its entirety. The preamble talks about technology, yes, but it is a tool towards making ASC and its workers a force in ship building. It’s to make us the best that we can possibly be by utilising whatever we can do to actually achieve that.
PN481
But isn’t the term “effective utilisation of technology” pretty much what the company is basing their argument on for the implementation of barcoding?---Can I clarify that sentence?
PN482
You can?---Or do you prefer I just answer your question?
PN483
Answer my question, yes, and then clarify it if you wish?---The question you’ve just asked, the answer to that would be yes, but if I may clarify it. During the EBA negotiations the preamble was mentioned during the negotiations between the unions and the company as a mechanism of us being able to utilise barcoding as was clause 31, but it was the preamble that everybody tied the horse up to - sorry for the adage. Everybody utilised for the introduction of barcoding and for it to be allowable.
PN484
Well, when the EBA was being negotiated - let me start again. Since the EBA was negotiated in 2004, since then, there has been various briefing sessions I believe on it to explain what the barcoding system actually is and what it does and how it all worked. Is that correct?---Yes.
PN485
Well, when barcoding was first mentioned in these EBA negotiations do you actually believe that there was a full understanding amongst the stewards or the officials what a barcoding system was?
PN486
MR SHORT: I object to that.
PN487
THE COMMISSIONER: Yes, why?
PN488
MR SHORT: I can’t see on what basis his ability to read the minds of others assists you.
**** KENEITH JOHN GEORGE JARVIS XXN MR WILDER
PN489
THE COMMISSIONER: No, it might not, Mr Short, but I'll allow it for now.
PN490
MR WILDER: Okay?---Sorry? Am I answering that question?
PN491
THE COMMISSIONER: Yes?---Sorry. My thoughts were to the EBA negotiations I think the common adage that was used, was the little girl around the corner uses it every day.
PN492
MR WILDER: That’s left me even more confused?---Sorry.
PN493
Unfortunately what I’m trying to get at, and it’s pretty hard to put it into the terms of a question I suppose, but during the course of the EBA negotiations when the term barcoding was first used there may have been a perception that personal access cards already had a barcode on them. How do I question it? Well, since then there’s been a lot of talk on barcoding and the employees and stewards have been shown what it is, what occurs. What I’m trying to say is during the EBA negotiations nobody was aware actually what the barcoding system meant or how it worked or anything else. So obviously do you believe that there was a full understanding, except for the little girl around the co-op? Forgive me for that one?---I actually believe that obviously the system is quite simplistic, but I do not believe there was a full understanding at that time. Obviously, as you said, we had many points to discuss, we didn’t go through the implementation or how it would actually be implemented, exactly what the hardware would be. We are talking about discussions which took back three years ago. The hardware, the software, has all changed since then. It’s all been updated, it’s changed. We’re using faster, bigger, better for better progress reporting.
PN494
So we basically go back to clause 5 where the general statement “the effective utilisation of technology” would cover the implementation of barcoding?---But in saying that the effective utilisation of technology, we can’t wait three years. We can’t discuss something three years ago and say right, we will take on this technology for three time because that technology will have gone and been improved umpteen times since. What we’ve gone and discussed is that we will take on a process that will allow us to progress report quicker using the barcoding system. For the barcoding system that no doubt the company originally looked at some three years ago has probably improved hugely since that time, similar as any electronic devices have.
PN495
I put it to you, Ken, that during the terms of the EBA negotiations that there may have been a belief that at the moment you can use your personal access cards in the stores and access and egress, et cetera, but the new barcoding system was just a different system, a different electronic system, that what didn’t allow for the actual expansion of the barcoding system does allow for. Would you agree with that statement?---I understand your question, unfortunately I don’t necessarily agree with it because I do not think the barcoding system is - the word I’ve forgotten. I don’t think that the barcoding system is that difficult. To the boys it’s just a barcode on the swipe card and a barcode on the work order. That’s all we’re doing that’s different from today. It’s nothing else. It’s not they’ve got to go and program a reader, program information or anything at all like that. All they’re doing is swiping their card and then swiping their work pack and that is done. I mean, I might have used the wrong adage with the little girl around the co-op, but it’s as simple as that. It isn’t difficult.
**** KENEITH JOHN GEORGE JARVIS XXN MR WILDER
PN496
You may think it’s simple, Ken, but back in 2003 I doubt whether the stewards or the organisers that were involved in the EBA negotiations realised how simple it was?---I have no doubt at all there than when we discussed it that around the local shop was exactly what was going to be implemented.
PN497
Again can I take you back to clause 5, the effective utilisation of technology. Now, if that was going to be used by the company as a basis for their argument for the implementation of barcoding, clause 5 actually goes on about effective teamwork and flexibility, et cetera. Now, we can argue and say that effective teamwork and flexibility could, say, allow for example for the implementation of say a 36 hour week, or would the company see that as an extra claim?
PN498
MR SHORT: I object to this, Commissioner. The witness can talk about matters of evidence and about what he heard and saw, et cetera, but his construction of what might amount to a claim in relation to a 36 hour week is not a proper matter for evidence. If my friend wants to put submissions in due course he can do that, but this is not going to really- - -
PN499
THE COMMISSIONER: Yes, I agree in this instance, Mr Wilder. I think that’s a matter for submissions rather than evidence, I think. It’s not a question we need to- - -
PN500
MR WILDER: I’m sorry, Commissioner, but what I was attempting to do there was use that for an example, not specifically a
36 hour, just use an example
for - - -
PN501
THE COMMISSIONER: It’s more appropriate to a submission, I think, than a question.
PN502
MR WILDER: Okay. I disregard that. No further questions.
THE COMMISSIONER: Mr Braithwaite?
<CROSS-EXAMINATION BY MR BRAITHWAITE [12.41PM]
PN504
MR BRAITHWAITE: Thank you, Commissioner. I wonder if Mr Jarvis could be given a copy of the 2003 and 2006 agreements.
PN505
Mr Jarvis, could you go to clause 31 please?---Yes, sir.
PN506
Clause 31 is regards time keeping and record keeping?---Affirmative.
**** KENEITH JOHN GEORGE JARVIS XXN MR BRAITHWAITE
PN507
In relation to clause 31(d);
PN508
Employees leaving their designated work area during ordinary working hours shall use their personal identification access card to exit from and to re-enter their designated work area. Such exit and re-entry records will not be used for time keeping or disciplinary purposes.
PN509
In reaching the alleged agreement in relation to the introduction of barcoding what’s your understanding of the agreement for that introduction in relation to barcoding being used for disciplinary measures in 2003?---I’m not quite certain if I’ve understood your question, Mr Braithwaite. I'll give you an answer. With regards to disciplinary issues with regards to as you’ve gone and mentioned here, clocking in and clocking out, there are other mechanisms within the company which will actually pick that up. Barcoding will not provide me with anything I can hardly do if I need to do anything, if I have an issue. Barcoding will not provide me with any more information to discipline somebody.
PN510
In 2003 was there specific references to dealing with the issue of the protection of records for the purpose of not being used for time keeping or recording?---In 2003 there was no mention of that particular clause.
PN511
In relation to your question from Mr Gresty you responded that barcoding will highlight bottle necks to all and sundry. Will that highlight also the hours worked by a particular individual on a particular item which could be used for identifying whether that person has been, for a better word, slower than others?---I have no doubt at all that the system could actually provide that information. I think as a company though we’d be a little bit not doing our job if we were looking around at how long an individual took to do a small job. I have supervisors which basically provide supervision to the boys on the floor and if there are any issues with that the supervisors deal with the individual on the floor.
PN512
How can barcoding be separated from an employee’s record when you’ve indicated that it highlights to all and sundry those
bottle necks, if an individual isn’t a bottle neck, that individual by his personal ID would be able to be selected, would
he not?---Well, the one thing it will allow me to do, John - sorry,
Mr Braithwaite - is that if I can actually identify an individual has been involved in a bottle neck and has not gone assessed it
we can go back to the individual and find out what the bottle neck was and assist that person to basically work his way through that
particular issue. In this particular instance if we’ve gone and gotten to a bottle neck we’d want to resolve it.
**** KENEITH JOHN GEORGE JARVIS XXN MR BRAITHWAITE
PN513
But is it not putting in place an ability that the company has records to an individual’s daily work pattern, the amount of time a person spends on a particular job on a daily basis, to create a computerised database?---The system will obviously provide that. What the systems are in place now provide it in a short and slower time. I have my supervisors have already gone and mentioned on the floor if there are issues they deal with the issues on a daily basis.
PN514
But currently is it not the case that the time recording that is done on work packs is done by code by the supervisors that the workforce
itself would not know the codes so therefore it’s administered totally by the foremen, the supervisors?
---That is correct. The codes that the workforce see which is printed on their time sheets which they sign on a fortnightly basis,
if they wish for further information with regards to those codes, exactly what they mean, they would need to speak to the supervisor
and basically gleam what that code actually appertained to.
PN515
So currently from 2003 to now which we’ve negotiated the time records that are signed by the workforce are purely start and finish times to confirm?---On their present time collection, yes.
PN516
And in the future there will be a computerised database of the amount of hours spent on individual projects or work packs on a daily
basis?---I’m just wondering how I can explain a job without an actual time sheet. A time sheet consists of two things which
is basically a list of hours that the individual has gone and done, okay, and basically combinates in a number of hours, a number
of overtime hours therefore penalty rates, against that individual. Below that you have these codes that you’re talking about.
So whereas an individual may have gone and have
76 hours ordinary hours during a fortnight and 10 hours overtime that’s at the top, underneath it will be the number of codes
that that individual’s gone and worked on in that fortnight. That’s what we’ve got now.
PN517
So essentially if I go back to clause 5, if in fact there was “agreement” it was conceptual and nothing else. There was
no agreement for actual implementation?
---I don’t know if I would agree with the terminology conceptual. I mean, it was obviously talked about at length and agreed.
I can’t actually concur where you point to it agrees. Obviously we didn’t do enough because we are here today. A point
that I thought was accepted by all and sundry.
PN518
Obviously it’s not. Thank you, Mr Jarvis.
PN519
THE COMMISSIONER: Mr Short.
**** KENEITH JOHN GEORGE JARVIS XXN MR BRAITHWAITE
PN520
MR SHORT: No re-examination.
THE COMMISSIONER: Thanks, Mr Jarvis. You can step down. You’re excused from further attendance.
<THE WITNESS WITHDREW [12.48PM]
PN522
We can then resume, can we, at 2 o'clock, Mr Short?
PN523
MR SHORT: Yes, Commissioner.
PN524
THE COMMISSIONER: Very well, then. We’ll adjourn until then.
<LUNCHEON ADJOURNMENT [12.49PM]
<RESUMED [2.21PM]
PN525
THE COMMISSIONER: Mr Short.
PN526
MR SHORT: Commissioner, I seek to call Mr Robert Lemonius.
PN527
THE COMMISSIONER: And we’ve got Mr Lemonius on line, I understand, there from Perth?
PN528
MR R LEMONIUS: Yes, Mr Commissioner.
PN529
THE COMMISSIONER: I can hear you, Mr Lemonius. Just before we do my associate just mentions that there is - Mr Braithwaite, you had a witness that you were wanting to call before 3 o'clock today which doesn’t look like that’s possible.
PN530
MR BRAITHWAITE: Yes. The situation, Mr Deryke’s got some family matters, sir, and is not available after three.
PN531
THE COMMISSIONER: Can he come back tomorrow?
PN532
MR BRAITHWAITE: Tomorrow morning, yes.
PN533
THE COMMISSIONER: Well, that’s fine. Yes, we need to take an affirmation, I think, do we Mr Lemonius?
MR LEMONIUS: Yes, Mr Commissioner.
THE FOLLOWING EVIDENCE WAS CONDUCTED VIA VIDEO CONFERENCE
<ROBERT JOHN LEMONIUS, AFFIRMED [2.22PM]
<EXAMINATION-IN-CHIEF BY MR SHORT
PN535
MR SHORT: Mr Lemonius, I think you commenced employment with ASC Pty Ltd in October 1990 as the submarine manager?---That’s correct.
PN536
And subsequently you’ve held various production roles but at the time of the 2003 enterprise agreement negotiations you held the position of works manager?---That is correct.
PN537
Later in 2003 after the negotiations had concluded you assumed the position of submarine operations manager located in Western Australia?---That’s right.
PN538
Now, one of the items initially raised on behalf of management for the 2003 enterprise agreement dealt with time recording. Is that correct?---Yes it was in respect to barcoding.
PN539
Yes. I think you have available to you minutes of meeting number one of the 2003 EBA discussions?---Yes, I do.
PN540
That’s the meeting of 20 March 2003?---That’s right.
PN541
Now, you saw those minutes when they came out and you’re familiar with them?
---Yes, I was.
PN542
On page three there’s reference to you providing the meeting with a management list of claims?---Yes, that was normal standard practice for us in terms of the beginning of an EBA negotiation period where we would provide a list of objectives that management wished to negotiate within the context of the EBA.
PN543
Right. Do you have available to you the 2003 EBA management issues document handed out at the meeting on 20 March 2003?---I don’t know that I actually have that document. Yes, I do.
PN544
We are referring to that document as ASC3. Item 12 of the EBA management issues document dealt with the introduction of barcoding, the time collection and other aspects?---Yes, it did.
PN545
And did you speak to that as recorded in the minutes of the meeting on page 3 under the heading Item 12?---At the first meeting are we referring to?
**** ROBERT JOHN LEMONIUS XN MR SHORT
PN546
Did you at the first meeting outline the matters that management were seeking to deal with?---Yes, we did.
PN547
And in relation to item 12 introduction of barcoding the minutes appear to record that you indicated that could be argued to be covered under the existing EBA preamble?---Yes. I can’t recall whether that was a consolidated position, but it certainly is a view that was expressed as a result of presenting the list of items that management wished to negotiate.
PN548
Now, there was a clause in the 2001 enterprise agreement headed Preamble Objects of Agreement?---Yes, that’s right.
PN549
And that appears to have been repeated in the 2003 agreement?---Yes. My recollection was that we took that particular clause across without any change from 2003 to the 2006 EBA.
PN550
Can you tell the Commission why the introduction of barcoding was raised as an EBA issue at the first meeting?---Essentially at the time of negotiating the EBA we were moving from the completion of the build program to really becoming a maintenance organisation and in the conducting of maintenance of submarines we were of the view at the time that it’s a different business, it required somewhat of a different approach to the management of processes, materials, cost accounts and progress reporting and one of the tasks that we would be asked to achieve in this transition from build to maintenance, particularly by a customer of the commonwealth, was to look at improving the efficiencies and learning from the build program and applying improved ways of operating and we saw barcoding as one very vital part of achieving that outcome.
PN551
Did you see it as an effective utilisation of technology?---Absolutely.
PN552
And was it intended to improve the competitive position of the company?---Yes. Well, we were in a period of ensuring that ASC was in a position to undertake maintenance to submarines in the long term and at that point in time, moving from the build contract to the maintenance of submarines, we hadn’t yet achieved a long term contract and as such we wanted to be able to demonstrate to our customer that we were in a position where we could improve our efficiency and use technology to assist us in doing that.
PN553
Now, were you responsible for the development of the management claim?---Yes, I was.
**** ROBERT JOHN LEMONIUS XN MR SHORT
PN554
And did you give consideration to whether barcoding could be introduced under the existing agreement in any event?---We did think about that, but our view really was that we wanted to bring our employees along and we saw this EBA as a neat way of ensuring that we were able to present to the employees this beginning of the improvement that would need to be made in terms of efficiencies. So in some ways it was an opportunity that we felt was in our interest and in the employees’ interest to specifically highlight in the EBA.
PN555
Right. Well, why was it in your interest to be specific about it?---Well, I think the timing was one thing in terms of the EBA negotiations having occurred at a time where we were coming out of the build and we were going into the maintenance and secondly that the change involved many aspects of the company from progress collection, time reporting, materials control and we just saw that as an opportunity to I guess set the base line for moving forward into the maintenance stream of the business.
PN556
Was it considered by you to be desirable to have certainty about the company’s ability to introduce barcoding?---Well, certainly - and I think that it was a major demonstration, I think, as much as it was a certainty to have the system to our customer - that we had the support of management and the employees to commence the change process that the maintenance part of the business was going to generate.
PN557
So you included the introduction of barcoding as a management issue. Now, you have available to you minutes of meeting number two of 27 March 2003?---Yes, I do.
PN558
And we are calling that ASC4. It appears at the top of page 3 that there was general discussion about, among a number of items, item 12 the introduction of barcoding. Do you see that at the top of page 3?---Yes.
PN559
Do you have any recollection of any particular discussion on that occasion?---No. The only thing I can recall was that it was a general discussion about those particular topics. What we tended to do in a meeting that if a particular item became difficult to continue we would put that aside and carry on so that we didn’t get too bogged down in the early stages of negotiation on issues and I think you’ll find it probably reflects that there was general discussion. I would expect, albeit that I can’t recall, I would expect that it would have been on a similar vain from management’s perspective on what we raised at the first meeting.
**** ROBERT JOHN LEMONIUS XN MR SHORT
PN560
Just going back to the first meeting, did you explain anything, can you recall saying anything more about the introduction of barcoding
at that first meeting?
---Nothing that comes to mind, no.
PN561
Then you have available to you the minutes of meeting number three held on
1 April 2003?---Yes, I do.
PN562
We’re referring to that as ASC5. Can I ask you to look at page 2, about half way down that page there’s reference to item 12 barcoding. Do you see that?---Yes, yes I do.
PN563
And it’s noted:
PN564
Following discussion it was agreed that clause 5 of the current EBA covered this point adequately and as such decided would be removed from management’s list.
PN565
You see that?---I do.
PN566
What can you recall about that discussion?---That statement is the outcome of discussions that went on in that meeting in respect to the unions’ view that the clause 5 which is the preamble adequately covered the introduction under the specific items of efficiency - and I think there’s another reference there as well about productivity - that would allow the introduction of barcoding under that clause and the view, from my recollection, of the union was that on that basis there was no need to have a stand alone clause referring to barcoding. And after some discussion we management agreed to that position as part of the negotiating process and I would say that that is our understanding at the time and remains the understanding that we and the unions came to an agreement that clause 5 covered the future implementation of barcoding.
PN567
Was anything raised to the effect that the introduction of barcoding was being abandoned or withdrawn?---No, no. Any reference in the documentation was simply taking that particular item out of the negotiating sphere of the EBA.
PN568
And taking it out of the EBA negotiations for what reason?---Simply because we’d agreed on a position.
PN569
And was that a position that enabled you to introduce barcoding or not?---On the basis of the discussion and the record that we have before us my belief is that it does.
**** ROBERT JOHN LEMONIUS XN MR SHORT
PN570
Now, I think you have available to you an EBA management issues document headed Status Following Meeting Number Three?---Yes, I do.
PN571
And we’re calling that ASC7. Now, item 12 of management’s list is dealt with in an appendix at the bottom of page 3?---Yes.
PN572
And at the top of page 4?---Yes.
PN573
You’re familiar, you’ve seen this document before?---Yes, I have.
PN574
Was there any disagreement raised in the course of the negotiations that you can recall that the introduction of barcoding was not covered adequately by clause 5 of the current enterprise agreement?---No, nothing that I can recall.
PN575
To the contrary was the discussion to the effect that the company could introduce barcoding through clause 5?---Yes, that would be my understanding.
PN576
Now, there were minutes of the meeting number four of 10 April 2003. I think you have those available to you?---A meeting number four, yes I do.
PN577
And the revised EBA management issues document that we’ve just gone to, Status Following Meeting Number Three, that was tabled at the meeting on 10 April 2003?---Yes, it would, it was.
PN578
And there was no disagreement, was there, at the meeting on 10 April 2003 with the accuracy of the revised EBA management issues document?---No. The minutes of meeting four reflect that the minutes of meeting three were accepted.
PN579
Now, during the discussions with the unions I think 1 April, that’s meeting number three, you told us there was discussion about clause 5 the preamble, can you recall was there discussion of any other provisions of the then current enterprise agreement?---In respect to this issue?
PN580
Yes?---Not that I can recall.
PN581
All right. During the negotiation process did you have regard to the application of other clauses?---Could you just repeat the question please?
**** ROBERT JOHN LEMONIUS XN MR SHORT
PN582
In relation to the introduction of barcoding did you turn your mind to any other clauses that may admit the company to introduce barcoding?---I understand. In the EBA of 2003 and in the current EBA there are several clauses which refer to the introduction of change and the responsibility on management to discuss and advise the employees of any intended change. So that certainly is one clause that leads to the ability to introduce change into the organisation as the business develops.
PN583
Did you have any regard to clause 31 time keeping/record keeping?---From my memory that clause also requires employees to record their
time and to use the devise that’s provided to record their starting and finishing times and that’s a
cut-out arrangement.
PN584
Are you aware of any good reason why barcoding should not be introduced?---No. We run a very complex business which requires the management of material and information and the recording of information and barcoding can only assist the organisation in doing that and in such way providing the management and the workforce with much more accurate up to date and accessible information. So it can only enhance the business.
PN585
Now, you understand, don’t you, that the unions are now opposing the introduction of barcoding?---Yes.
PN586
Was that made known to you in the course of negotiations in 2003?---No, it wasn’t.
PN587
And if it had been made known what would you have done?---My view would have been that I would not have reached the agreement that I reached in respect to the coverage of the clause 5 preamble. I would have pursued the item as in the list of items that management had presented at the time.
PN588
And arising out of your negotiations with the unions in 2003 were you aware of any barrier to the introduction of barcoding by the company?---None that I was aware of, no.
PN589
I have nothing further, Commissioner.
PN590
THE COMMISSIONER: Mr Lemonius, just a couple of questions. Can I just clarify what your current role is in Perth?---Certainly, Mr Commissioner. As the WA submarines operations manager I am the senior ASC person in Western Australia and I am responsible for all of the maintenance and repair of submarines ported here at HMAS Stirling.
**** ROBERT JOHN LEMONIUS XN MR SHORT
PN591
So you are still employed by the Australian Submarine Corporation?
---Absolutely, yes.
PN592
In a Perth operation?---Yes, I am.
PN593
Okay. Have you got a copy of the agreement there?---No, I don’t.
PN594
Can I just refer you to clause 5 of the agreement. In the very last sentence, I'll read the whole of the last sentence. It says under clause 5 of the agreement:
PN595
The union movement also commits to a high level of cooperation between production employees and management at all levels to enable production to flow freely and efficiently with an ability to accommodate changes in the work plan and varying market opportunities to ensure ASC is internationally competitive.
PN596
Now, there’s a reference there to accommodating changes in the work plan. Was there or is there a specific identifiable thing called the work plan or is that just a generic description for the way things are done?---I would say that is a description of the way things are done. If we were talking about planning the work then we are essentially talking about schedules and work packs which describe the work to be undertaken.
PN597
It just used the definite article there, the work plan. I’m just wondering whether there is such an identifiable thing in ASC called the work plan or whether it’s just one of those generic phrases and you were saying you think it’s probably the latter?---That’s correct.
PN598
Okay. Yes, Mr Gresty, any questions?
PN599
MR GRESTY: Is it best for me to sit or stand up?
THE COMMISSIONER: Whatever’s easiest for the learned operator here. Just make sure you speak into the microphone there.
<CROSS-EXAMINATION BY MR GRESTY [2.44PM]
PN601
MR GRESTY: Mr Lemonius, you were one of the senior negotiating person for the ASC in the last round of enterprise bargaining. Is that correct?---It is.
**** ROBERT JOHN LEMONIUS XXN MR GRESTY
PN602
You recognised that item 12 was removed from the management’s log of claims on or around 1 April?---It was removed from the list, yes.
PN603
But prior to that it is recorded that there were a number of discussions with respect to item 12?---That is correct.
PN604
Do you know what those discussions were based around?---My recollection is essentially that the clause was not required because the existing content of the clauses in the EBA covered the intent that management was seeking by the introduction of the clause we were proposing.
PN605
Do you recall it being raised with you the concerns that people had that the application of the barcoding as it was presented would be nothing more than a time in motion study, an exercise in tracking people, their time to be used possibly for disciplinary purposes later down the track?---That was an issue that was raised and my explanation at the time was that that was not our intention, our intention was with the introduction of barcoding to advance the organisation so that it could better manage its business processes and maintain a competitive and efficient organisation.
PN606
Thank you, that’s also my recollection, too, so we share that. As a result of that any discussions that were on and around the use of barcoding were in the context of materials, tracking down tools and those sort of things. It was not necessarily viewed as a replacement for clause 31?---No, I wouldn’t necessarily agree with that in respect that I think the previous question you asked was perhaps a little specific in terms of monitoring people’s employment or their position in respect to their movement as opposed to recording times which reflect the hours that are worked on a particular work package and I think there’s a distinct difference there.
PN607
So it was the company’s view that clause 31 would remain in its entirety and somehow by the use of clause 5 barcoding would be accommodated albeit the two clauses could actually be in conflict?---Are you referring to clause 31 as being the introduction of change clause?
PN608
No, I’m referring to clause 31 as being the one we used for clocking on and clocking off?---Okay. Could you then in that case repeat the question, please?
PN609
What I’m saying is what it your view with respect to the introduction of barcode via clause 5 of the agreement that that would run co-jointly in parallel with clause 31 so you’d have, in effect, two clauses dealing with time keeping?---No, I don’t recall we ever discussed it in that context.
**** ROBERT JOHN LEMONIUS XXN MR GRESTY
PN610
We didn’t discuss the deletion of clause 31?---No, we did not.
PN611
So clause 31 stayed as the way in time recording in the agreement?---I’m just trying to understand your question.
PN612
What I’m saying there was no attempt - or correct me if I’m wrong - there was no attempt to use barcoding as a way of
supplementing the existing clause 31?
---That’s correct, but I haven’t got clause 31 in front of me, but I just recall it does require- - -
PN613
THE COMMISSIONER: Can I just refresh your memory, perhaps, on clause 31 because you don’t have it there, Mr Lemonius. I mean, I think the relevant provisions, there’s five separate sub-clause. Clause 31 is headed Time Keeping/Record Keeping and then sub-paragraph (a) says:
PN614
All employees of the company will be issued with a personal identification/access card which will allow entry to and egress from the Australian production facility. Entry and exit points will not include time keeping facilities.
PN615
It then goes on in (b) and (c) and (d) and then it finishes of in (e). It says in (e):
PN616
It is a condition of this agreement that employees shall use their personal identification/access card for other record keeping purposes such as allocation of tools and equipment, job costing purposes, quality control records and the like which may be required by the company from time to time.
PN617
Does that refresh your memory on clause 31?---Yes thanks, Mr Commissioner. In light of that what I would say is that we in our thinking at the time saw clause 31 being applied as agreed in that document and that the barcoding would operate in parallel with that, but not supersede it.
PN618
MR GRESTY: Were you aware of any records, minutes that will record or reflect that?---If it is not contained within the documents of the minutes of the EBA then there would not be I would think.
PN619
Well, I’m certainly not aware of any so you may well be right?---But may I add it may also be a question that wasn’t asked at the time.
**** ROBERT JOHN LEMONIUS XXN MR GRESTY
PN620
You could also be right and if that were the case, if it was not asked or certainly not recorded, how was it envisaged that two clauses being very similar in nature would in fact run in tandem and what recollection do you have of discussions regarding the implementation and the application of clause 5 with respect to barcoding?
PN621
MR SHORT: Commissioner, if I can just object. There seem to be two questions in there that I’m not sure that are permissible, but there’s certainly two questions in there and if we could just break it up and take it a step at a time.
PN622
THE COMMISSIONER: Are you able to do that again, Mr Gresty?
PN623
MR GRESTY: Why do I get all the hard parts?
PN624
Mr Lemonius, do you recall or have you evidence that would indicate that clause 31 and clause 5 would run in tandem?---No, I don’t.
PN625
The second part to the question is what evidence or recollection do you have with respect to minutes, comments, discussions, notes with respect to the application or implementation of barcoding with respect to clause 5 of the agreement?---Well, in respect to clause 5 of the agreement, the preamble, that is the documentation that’s contained within the minutes of the EBA meetings. We didn’t go beyond that in discussion or negotiation in respect of the introduction of barcoding.
PN626
So is it fair to say then that there is no recording reference to application of barcoding within clause 5?---Clause 5 does not specifically reference barcoding, that’s correct, but it doesn’t also specifically reference any other changes or improvements that the company has made and would want to make in the continued advancement of its business and as a preamble I would expect that that was not the intention of that clause to be specifically identifying particular items other than the words that are in the meeting minutes where both parties agreed in a specific instance that the preamble did give the provision to introduce barcoding.
PN627
Mr Lemonius, I suspect you’re right. Clause 5 is a preamble and we would also suggest it is nothing more than a preamble?---If I may, Mr Gresty, make the point of the agreed position that is documented within the EBA negotiation that was held for the 2003, 2006 EBA.
PN628
Thank you, sir. We have no further questions.
**** ROBERT JOHN LEMONIUS XXN MR GRESTY
PN629
THE COMMISSIONER: Mr Wilder.
<CROSS-EXAMINATION BY MR WILDER [2.55PM]
PN630
MR WILDER: Yes, Mr Lemonius. Firstly is it your recollection during the EBA negotiations for the current EBA regarding the barcoding, was it ever explained to the unions what exactly barcoding was, what it meant and what any implications there would be?---Not in detail other than the explanations I provided in negotiating group and on the basis of that negotiation and the decisions that we made at the time and the agreements we made at the time there was no need, obviously, to pursue that at that point in time because we both parties agreed that the preamble covered the introduction and of course on that basis it didn’t continue to be an EBA item.
PN631
So what you’re actually saying there is the unions, in your understanding of the matter, the unions have agreed to the implementation of a system that they had absolutely no understanding of?---I can’t determine what the union’s position was at the time.
PN632
Okay, fair enough. I'll take you back to ASC6 which is actually the meeting number four, the minutes of the meeting number four?---Yes.
PN633
Point one on the first page where you’ve got the two dot points, the second dot point you agree that the minutes of meeting number three were accepted?---Yes, that’s correct.
PN634
I'll take you back to the minutes of number three on page 3 where it’s the heading Summary of Log of Claims. The first dot point there, management item number 12, specifically mentions the introduction of barcoding for time collection, material control, processes, work order administration and progress collection. Could you tell me what the heading is above that?---Items withdrawn from the list.
PN635
It just says withdrawn?---Items withdrawn from the list.
PN636
Yes, okay. The documentation is headed Meeting Number Three that we have as ASC5 on page three?---Yes.
PN637
It doesn’t say items withdrawn from list, it just says withdrawn. Simple statement?---Yes, but am I able to add if we go over the page it was on the basis that agreed by management and unions ASC EBA 2003 discussion meeting three 1 April that clause 5 of the current EBA covered this point adequately and that was on the basis of why that withdrawal was made from the actual EBA claims, the list of management.
**** ROBERT JOHN LEMONIUS XXN MR WILDER
PN638
And I suggest that’s your interpretation. I think, Mr Lemonius, you’re referring there, are you, to the middle of page two of those minutes when you just said go over the page and then go back a page and then in the middle of the page?---The page four of the submission.
PN639
No. Well, see, we don’t have a page four so I think we might be talking about a different thing here.
PN640
MR GRESTY: From different documents. I think Mr Lemonius is referring to possibly ASC7.
PN641
MR WILDER: Maybe if I hold it up?
PN642
THE COMMISSIONER: No. Actually, what we’re referring to right on the front of the document that I think Mr Wilder’s referring to is ASC 2003 EBA discussions without prejudice meeting number three 1 April 2003 10 am?---Okay, I have picked up the wrong document.
PN643
And his question initially then related to page three of that document which is page three of three right at the end and he asked you that question about the top item there, management item number 12 introduce barcoding for time collection, et cetera, and he said what’s the heading above that and you said whatever you said?---Withdrawal.
PN644
Yes, it just says withdrawal. You’ve got that?---I have, Commissioner.
PN645
Yes?---And the point I would make then going back to page two of that document is the same that I made previously in that the comment there is following discussions it was agreed that clause 5 of the current EBA covered this point adequately and as such this item was removed from management’s list.
PN646
Yes.
PN647
MR WILDER: No further questions.
THE COMMISSIONER: Mr Braithwaite?
<CROSS-EXAMINATION BY MR BRAITHWAITE [2.59PM]
PN649
MR BRAITHWAITE: Can you see me, Mr Lemonius?---Yes, I can.
**** ROBERT JOHN LEMONIUS XXN MR BRAITHWAITE
PN650
It’s John Braithwaite, anyway?---Hi John, how are you?
PN651
Good thanks, yourself?---Good.
PN652
My first question is, Mr Lemonius, what other changes have been implemented via clause 5 that you can recall?---In over a period of time there’s been a number of changes to the production operation including the introduction of additional machine shop machinery and the relocation of the pipe shop.
PN653
Excuse me, but is that via clause 5 or is that via the consultative mechanism within the agreement?---That would have been via the consultative mechanism of the agreement under my view the spirit of clause 5.
PN654
Well, I’d suggest that there’s no interrelation with a preamble and a consultative forum. I’m specifically looking at the minutes where ASC are indicating that there was agreement that barcoding could be introduced via clause 5. Clause 5 in my reading doesn’t have a process of implementation so my question specifically is what changes have been implemented specifically via clause 5 and only clause 5?---I can not specifically answer that question. Well, let me put it differently. The changes that have been made in the business are linked to clause 5 where we have introduced changes or additions or alterations under the emphasis of providing better performance or greater productivity.
PN655
Have not those changes that have gone through other clauses of the agreement, not clause 5, been by agreement?---Ultimately yes, they have been by agreement.
PN656
With questions put by Mr Short you indicated at the beginning that you sought certainty with the implementation of the barcoding system and you’ve sought to bring employees along with that. What process of implementation was discussed at the time?---There was no specific discussion in respect to that issue for two reasons. One, the development of barcoding as a management tool had not progressed to that extent and secondly, the fact that both parties agreed that clause 5 - rightly or wrongly - covered the plan clause. The level of detailed discussion that would have continued, in my view, had the clause remained have led us to that, but as the agreement was reached there was no necessity to continue that level of discussion and that level of detail.
PN657
So in essence at that time we didn’t know the form that barcoding would take and we didn’t know or have agreement on an implementation process?---No for the reasons I’ve just explained.
**** ROBERT JOHN LEMONIUS XXN MR BRAITHWAITE
PN658
Thank you, Mr Lemonius. No further questions.
PN659
THE COMMISSIONER: Mr Short.
PN660
MR SHORT: I have no re-examination.
THE COMMISSIONER: Thank you, Mr Lemonius, for being with us and for bearing with us at the beginning of your evidence while we got
things hooked up. I think that concludes your evidence and you’re excused from further attendance?
---Thank you, Mr Commissioner, and gentlemen.
<THE WITNESS WITHDREW [3.04PM]
PN662
I think we’re off air.
PN663
MR SHORT: Yes. Now, Commissioner, to take it further there’s a further document I seek to tender which I do not expect to be controversial. It’s Minutes of Joint Consultative Committee Meeting of 5 November 2004.
PN664
THE COMMISSIONER: So I’m looking at a document headed Minutes of Joint Consultative Committee Meeting 5 November 2004?
PN665
MR SHORT: Yes. The relevant portion of that, sir, would be on page 9 just above the middle of the page headed Barcoding.
PN666
THE COMMISSIONER: Yes.
PN667
MR SHORT: So unless there’s any objection I seek to tender that.
PN668
THE COMMISSIONER: No objection, gentlemen, the tender of those?
MR GRESTY: No, sir. I think it supports our point adequately.
EXHIBIT #ASC9 DOCUMENT HEADED MINUTES OF JOINT CONSULTATIVE COMMITTEE MEETING 5/11/2004
PN670
THE COMMISSIONER: Yes.
PN671
MR SHORT: Now, as the matter has developed I don’t see that there’s a need to call Mr Gabelle in relation to why barcoding would be sought to be introduced. I haven’t heard any challenge to the evidence of the witnesses about the legitimate needs, the viability of the introduction of barcoding. I don’t see that Mr Gabelle, his evidence, will assist the Commission. He wasn’t present at the meetings with regard to the negotiation of the 2003 agreement and on that basis, sir, that is the case for the company.
PN672
THE COMMISSIONER: Thank you. Now, from the union’s point of view I don’t know whether you worked through who wants to go first and lead off the batting and so on and whether there’s any evidence. Have you worked through how you want to present your case in this matter?
PN673
MR GRESTY: Sir, with respect to the first item that the Senior Deputy President alerted us to, whether the company can perceive that this has been a legitimate part of the agreement or is it as we would have you believe it’s an additional plan. Is that the part we’re going to deal with first?
PN674
THE COMMISSIONER: We’re dealing with the whole lot. As you said at the outset of the proceedings- - -
PN675
MR GRESTY: I didn’t mean in terms of only separate hearings. I thought we’d sort of segment the hearing into the two items you were asked to - - -
PN676
THE COMMISSIONER: No, we’re not seeking - I mean, Mr Short has presented his case in terms of his evidentiary case on the whole thing which is points one and two as outlined by O’Callaghan SDP and it’s up to the unions to decide how you want to proceed from here, that’s all. I mean, do you want to call any evidence? Is there any evidence that’s necessary to call?
PN677
MR WILDER: Yes, Commissioner. We’ll be calling Mr Deryke tomorrow morning and also tabling a memorandum of understanding in reply to the second point of the list.
PN678
THE COMMISSIONER: Okay and is there anything that we can profitably do between now and then? Any other evidence, any other material that you want to put before the Commission?
PN679
MR WILDER: I think, Commissioner, it’s probably wise to maintain a flow that we have Mr Deryke here tomorrow as our witness that maybe we commence tomorrow and formulate our submissions and also have Mr Deryke at the same time instead of chopping and changing.
PN680
THE COMMISSIONER: Yes. Mr Deryke, that’s D-e-r-y-k, is it?
PN681
MR WILDER: K-e, yes.
PN682
THE COMMISSIONER: Mr Deryke. All right. So what you’re saying is you’d prefer to call his evidence, have his evidence dealt with, put in any other material you’ve got and then that would conclude your case?
PN683
MR WILDER: That’s correct.
PN684
THE COMMISSIONER: No other witnesses, no other material you want to put?
PN685
MR GRESTY: The only thing that we’d be talking to, sir, is the last piece of evidence submitted by my friend, ASC9.
PN686
THE COMMISSIONER: Yes and no doubt you’d do that in the course of your final submission?
PN687
MR GRESTY: Yes, sir.
PN688
THE COMMISSIONER: See, the process at the moment would be you will call Mr Deryke tomorrow morning, you’ll examine him, he’ll be cross examined, we’ll deal with his evidence, any other material that you want to put in through perhaps Mr Deryke or however, that will conclude your case. Then technically I think the way to move forward would be you would then put your submissions, we’d be back to you, Mr Short, for your final submissions and there would actually then be a right of reply in anything that you raise that was not mentioned in the union’s submissions.
PN689
MR SHORT: The right of reply I think would be a bit more limited than that. It would be limited to matters of law.
PN690
THE COMMISSIONER: Yes.
PN691
MR SHORT: You understand.
PN692
THE COMMISSIONER: I understand, but a limited right of reply after that on issues of law and basically any new issues that you might raise.
PN693
MR SHORT: Yes. We’ll deal with it sensibly.
PN694
THE COMMISSIONER: So we understand where we go from here?
PN695
MR WILDER: Yes.
PN696
THE COMMISSIONER: We call Mr Deryke tomorrow morning and we’re on at 10 o'clock tomorrow morning. Is that all right?
PN697
MR SHORT: Yes. Commissioner, can I just raise if there’s to be an opening for the unions we may as well hear it now and in relation to this memo of understanding. I don’t know what that document is. It’s obviously not been something put to any witnesses that I’ve called. I wouldn’t mind seeing it now to work out whether there’s going to be a difficulty with it. I don’t know what it is.
PN698
THE COMMISSIONER: Yes. Is it possible, and again I don’t know in what order, whether you’re going to put three submissions or whether you’re going to sort of coordinate your submissions or whatever, but do you wish to make some sort of broad opening statement as to what your submission is going to be, where you’re coming from and also address that question from Mr Short about this memorandum?
PN699
MR BRAITHWAITE: Commissioner, essentially the memorandum’s been titled a memorandum. It’s effectively not a memorandum as such. We’re required to, as part of point 2 of the statement, put the parameters around barcoding should you decide in your decision that the company ahs the right to implement barcoding. Those parameters are bound by the agreement in respect to certain items and more or less the memorandum was developed as a process of, I suppose, short circuiting arbitration, but that wasn’t capable of being done.
PN700
THE COMMISSIONER: Is it in effect, Mr Braithwaite, a part of your submission?
PN701
MR BRAITHWAITE: Yes.
PN702
THE COMMISSIONER: It’s not evidence as such, it’s not a formal submission?
PN703
MR BRAITHWAITE: No, it’s a document. It’s a submission in relation to the parameters that should be around barcoding should the Commission determined that ASC has the ability to- - -
PN704
THE COMMISSIONER: And presumably that is related to, as it says there in item 2, that arising in the requirements of the certified agreement? Presumably it’s related just to that?
PN705
MR BRAITHWAITE: Correct, sir.
PN706
THE COMMISSIONER: So if barcoding is able to be introduced are there limitations on the form and operation of any barcoding system that arise - and these are critical words - that arise from the requirements of the certified agreement? They’re the qualifying words. It’s not as though we’re here in a..... this is not, how will I call it? It’s not sort of like an arbitration for the making of a new award or a new agreement. This is purely..... we’re dealing with a document that currently exists which is the agreement itself and the question there is in point 2 what limitations are there, if any, on any introduction of any barcoding system arising from the requirements of this existing document and your memorandum is really a submission on that point?
PN707
MR BRAITHWAITE: It should have just had the memorandum on the top.
PN708
THE COMMISSIONER: Does that clarify that, Mr Short?
PN709
MR SHORT: It clarifies it. I don’t know if there’s any my objection to my seeing it overnight.
PN710
THE COMMISSIONER: Well, again I have no problem with that and it might short circuit proceedings if in fact you can discuss that with Mr Short afterwards. I mean, that’s up to the parties. The other thing is there any general opening statements that you wish to make as to where you’re headed with your submissions or do you just want to go straight into the evidence of Mr Deryke?
PN711
MR WILDER: If I may, Commissioner, we’d prefer to go straight to the evidence and obviously because our submissions will be coming after the evidence put by Mr Casey as a witness and on a memorandum of understanding it stems from a bit of historical basis to this whole situation regarding barcoding going back to 2004 when it was first brought up as an issue. So it would probably be more wise for us to put that as part of our submission tomorrow after we’ve done the witness statement.
PN712
MR SHORT: Let me make it clear. If this is a document that goes into the course of the jumble without prejudice communications or if it’s a memo that goes beyond what arises from the requirements of the certified agreement itself that I’d be objecting to it.
PN713
THE COMMISSIONER: I understand that, yes. It must be a document that’s clearly relevant to those two specific items that we are dealing with in this arbitration.
PN714
MR SHORT: Yes.
PN715
THE COMMISSIONER: Do you understand that, gentlemen?
PN716
MR WILDER: Yes, I do.
PN717
THE COMMISSIONER: I suggest it may be useful after we adjourn in a few moments to perhaps have a chat amongst yourselves at the bar table as to precisely where you’re headed so we avoid tomorrow any objections as to the relevance of this, that or the other. It might be useful. It’s not showing your cards before the time or whatever, it just might be useful to cut down on any unnecessary objections or whatever tomorrow. All right? Can I suggest that?
PN718
MR WILDER: Yes.
PN719
THE COMMISSIONER: Failing that then I don’t think there’s much more we can do until we have Mr Deryke in the witness box and we’re due to resume 10 o'clock tomorrow morning. Is that all right, gentlemen? 10 o'clock, that’s ok for Mr Deryke? I don’t know how long we’ll be with him, but if he takes about the same time as the other witnesses, I’m assuming that will be about the case, we should then get on to your final submissions, the unions final submissions, tomorrow morning some time and when they’re completed - it looks like we’re going to complete this tomorrow, that’s what I’m saying. All right? Nothing further, gentlemen, from anyone? Then we’ll adjourn until 10 o'clock tomorrow.
<ADJOURNED UNTIL WEDNESDAY 18 JANUARY 2006 [3.16PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #ASC1 EXTRACT FROM AUSTRALIAN SUBMARINE CORPORATION PTY LTD/AMWU/AWU/CEPU ENTERPRISE BARGAINING AGREEMENT 2001/2003 PN46
EXHIBIT #ASC2 MINUTES OF THE ASC 2003 EBA DISCUSSIONS HELD ON 20/03/2003 MEETING NUMBER ONE PN50
EXHIBIT #ASC3 2003 MANAGEMENT ISSUES DOCUMENT PN54
EXHIBIT #ASC4 MINUTES OF ASC 2003 EBA DISCUSSIONS MEETING NUMBER 2 DATED 27/03/2003 PN63
EXHIBIT #ASC5 MINUTES OF 2003 MEETING NUMBER THREE DATED 01/04/2003 EBA DISCUSSIONS PN70
EXHIBIT #ASC6 MINUTES OF ASC 2003 EBA DISCUSSIONS MEETING NUMBER FOUR DATED 10/04/2003 PN76
EXHIBIT #ASC7 2003 EBA MANAGEMENT ISSUES STATUS FOLLOWING MEETING NUMBER THREE PN86
MARTIN PICKLES, SWORN PN103
EXAMINATION-IN-CHIEF BY MR SHORT PN103
CROSS-EXAMINATION BY MR GRESTY PN179
MFI #ASC8 EXTRACT FROM PERSONNEL NOTES TAKEN ON 01/04/2003 PN220
CROSS-EXAMINATION BY MR WILDER PN239
CROSS-EXAMINATION BY MR BRAITHWAITE PN250
RE-EXAMINATION BY MR SHORT PN269
THE WITNESS WITHDREW PN294
MARTIN PICKLES, RECALLED AND RESWORN PN317
FURTHER EXAMINATION BY MR SHORT PN317
CROSS-EXAMINATION BY MR GRESTY PN328
CROSS-EXAMINATION BY MR WILDER PN338
CROSS-EXAMINATION BY MR BRAITHWAITE PN357
EXHIBIT #ASC5A HAND WRITTEN NOTES OF MR PICKLES PN365
THE WITNESS WITHDREW PN368
KENEITH JOHN GEORGE JARVIS, SWORN PN369
EXAMINATION-IN-CHIEF BY MR SHORT PN369
EXHIBIT #ASC8 EXTRACT OF K JARVIS’ NOTES OF 1 APRIL 2003 PN428
CROSS-EXAMINATION BY MR GRESTY PN430
CROSS-EXAMINATION BY MR WILDER PN469
CROSS-EXAMINATION BY MR BRAITHWAITE PN503
THE WITNESS WITHDREW PN521
ROBERT JOHN LEMONIUS, AFFIRMED PN534
EXAMINATION-IN-CHIEF BY MR SHORT PN534
CROSS-EXAMINATION BY MR GRESTY PN600
CROSS-EXAMINATION BY MR WILDER PN629
CROSS-EXAMINATION BY MR BRAITHWAITE PN648
THE WITNESS WITHDREW PN661
EXHIBIT #ASC9 DOCUMENT HEADED MINUTES OF JOINT CONSULTATIVE COMMITTEE MEETING 5/11/2004 PN669
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