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Australian Industrial Relations Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 16131-1
SENIOR DEPUTY PRESIDENT WATSON
C2006/3262
FELTEX AUSTRALIA PTY LTD
AND
TEXTILE, CLOTHING AND FOOTWEAR UNION OF AUSTRALIA
s.170LW -prereform Act - Appl’n for settlement of dispute (certified agreement)
(C2006/3262)
MELBOURNE
9.48AM, TUESDAY, 14 NOVEMBER 2006
Continued from 13/11/2006
Reserved for Decision
<MICHELLE O'NEIL, RECALLED AND RE-AFFIRMED [9.48AM]
<CROSS-EXAMINATION BY MR PARRY, CONTINUING
PN1982
THE SENIOR DEPUTY PRESIDENT: Ms O'Neil, you remain under oath. Mr Parry.
PN1983
MR PARRY: If your Honour pleases.
PN1984
Ms O'Neil, yesterday we were dealing with change of starting and finishing times. If I could move to change of shifts. You understand that the AWA has a procedure of two shifts' notice in effect with volunteers and a disputes procedure option. That's your understanding generally of the AWA process?---Could you take me to which clause in the AWA you're referring to?
PN1985
12.3?---Yes.
PN1986
If I could deal with the position under the enterprise agreement. Where do I find the limitations on shift transfers, change of shifts?---Clause 12.
PN1987
That clause only operates if there is a need to meet increased demand?---I don't think it does limit it to that operation, no.
PN1988
That's what it says in the first line?---No, what it says is that the parties recognise that in order to meet increased demand, there may be increased operations. It doesn't limit the operation to that. It's a recognition statement.
PN1989
Yes, it recognises - I suggest to you that a logical and sensible reading of that clause means it operates in the circumstances where the parties need to meet increased demand?---I wouldn't necessarily agree with you.
PN1990
It's a bit unclear, then, isn't it?---That's not my view, no.
PN1991
What about where the parties are faced with a situation of decreased demand and a need to move people off shifts because there's less demand, that clause wouldn't operate, would it?---No, I think that the clause would operate.
PN1992
You think you would then somehow read that first sentence to deal with a situation of decreased demand?---No, I'm talking about the clause in full, not the first sentence.
PN1993
So do we read any meaning into the first sentence at all?---It's a recognition statement. That's what it means.
**** MICHELLE O'NEIL XXN MR PARRY
PN1994
So you read the second clause, the second sentence totally divorced from the first sentence?---No, that wasn't what I said.
PN1995
You see, the first sentence seems to suggest that if the parties are going to meet increased demand, increased operations may be required in some areas and then it speaks of where a specific need has been identified, that seems to suggest that it's the increased operations from the increase demand that applies, doesn't it?---No, it doesn't suggest that to me.
PN1996
It doesn't suggest that to you?---No.
PN1997
I see, and you don't think that there's a lack of clarity in the way the clause is put together?---Well, I think common sense would apply in the interpretation of it which is often the case in terms of these matters.
PN1998
Common sense?---And obviously, if there's an issue in terms of changing shifts, then the intention of this clause is that there's a need for discussion and agreement.
PN1999
Common sense should apply? Do I take it from that that when we start looking at these obligations in these instruments, we do apply a bit of common sense in the way we approach the construction of it?---That's the way we always operate.
PN2000
It's a fair way for the employer to operate and the union to operate, isn't it?
---Sometimes it'd done fairly, sometimes it's not.
PN2001
Yes, but common sense in constructing these clauses is a pretty logical, typical way of going ahead, isn't it?---It's not the sole thing that I would say would be the basis of going ahead, but I would think it's a sensible way to deal with the industrial relations.
PN2002
Now, assume my hypothetical construction is correct just for the time being, that is that the clause doesn't operate where there's no increase in demand or increased operations, but either no change to operations or decreased demand for operations. Can we assume that the clause doesn't apply then?---I don't agree with you that it doesn't apply.
PN2003
I'm not asking whether you agree. I'm asking you to make that assumption. Do you follow that?---I follow your assumption.
**** MICHELLE O'NEIL XXN MR PARRY
PN2004
Good?---It's not my assumption.
PN2005
All right. I understand that. Now, let's assume I'm right. Where do I then go for shift change provisions?---I don't think you are right.
PN2006
I might be, I might not be. Let's assume I am. Where do I go then for shift change provisions?---I think that a combination of this clause and the award would apply, the attachment A.
PN2007
Which part of the award? Would it be clause 20?---If you give me a moment, I'll tell you.
PN2008
Perhaps page 74, 75?---Of which instrument are you referring to?
PN2009
The 1994 award?---Some of the provisions that are relevant are there. They're not the sole provisions.
PN2010
Which ones?---Which ones what?
PN2011
Which ones are relevant, dealing with my hypothetical, that is that your clause 13 does not deal with change of shifts where there is no change to operational requirements or reduction in demand. I just want to understand where, assuming my hypothetical is correct, we look to find out what restrictions there are on change of shifts?---It would be a combination of what you'd find in the clauses that you refer to and also overriding obligations that exist in terms of the Act and its incorporation of ILO provisions in relation to family responsibilities, et cetera.
PN2012
Well, let's go through each of those, because they're all pretty new ones we haven't heard of yet. We've got number one, this provision, which is probably clause 20?---I didn't say that.
PN2013
Sorry, could you identify where, assuming my hypothetical is correct, an employer and an employee goes to find what obligations are on either of them when there's a change of shift?---Well, you would look at the combination of the clauses that are the shifts clause, also the hours of work clause, the general clause in the award and the Act in relation to any overriding obligations that would apply in any of those circumstances.
PN2014
Well, let's go to the clause on shifts first, that's clause 20 in the 94 award, page 74. On my reading of that, there's only one clause that seems to deal with how changes of shift can occur and that's G and that says:
**** MICHELLE O'NEIL XXN MR PARRY
PN2015
An employee who is required to change from one shift to another without two working days' notice of such change of shifts shall be paid $12.70 extra as compensation. This shall not apply during any period where power restrictions are operated.
PN2016
Do you see that?---No, sorry, I - - -
PN2017
Well, you see that, don't you?---No, I'm not looking at that. I'm looking at your earlier question. I would take you first to page 74, after the definition of shifts, there's two paragraphs there in A that deal with changes.
PN2018
Yes, the first one - - -?---One of them says that:
PN2019
Provided that to meet extraordinary circumstances, the foregoing hours may be varied by mutual agreement in writing between the employer concerned and the secretary of the local branch of the union.
PN2020
Yes, foregoing hours, those are the shift definitions, the hours of the shift described above, day shift 7 am to 7 pm, morning shift, 6 am, afternoon shift after 6 pm, not before midnight, night shift, after midnight, not later than 8 am and a reference to permanent night shifts. Isn't it fairly clear that that provision there deals with the hours set out in the definitions clause?---The change of shift arrangements, I understand, is something that is sometimes related to swapping shifts and sometimes related to the change in the operation of the shift, so if it was the case that it was a change in relation to the operation of the shift, then I would say those clauses are relevant to it.
PN2021
Ms O'Neil, you're not seriously suggesting that that clause you've just taken us to is any requirement for there to be agreement between the employer and the union where there's to be a change of shift from morning to afternoon or night shift, are you?---No. As I said - - -
PN2022
No, no, that - - -?---I was talking about how it operates in terms of the operations of a shift.
PN2023
Right, so we can leave that to one side. The next clause - - -?---Maybe it would help me, Mr Parry, if you could tell me what sort of change you're talking about in your hypothetical situation, because I'm not really clear.
**** MICHELLE O'NEIL XXN MR PARRY
PN2024
Change of shift, day shift to afternoon, afternoon to night?---So a worker being required to change?
PN2025
Yes?---And what's the change?
PN2026
Being asked to change shifts, from afternoon to night. Is that clear?---I think so.
PN2027
So we can agree that that provision that you've just taken us to doesn't deal with that circumstances. That's the one under the definition of short shift?---That's right.
PN2028
The next one doesn't, does it?---No.
PN2029
So we can leave A out. Now, I suggest the only one that deals with changes of shift is G?---That's one of a number of award clauses that deal with it. It's not the only award clause that deals with that.
PN2030
Can we assume it's a relevant one?---Yes.
PN2031
Right, and it seems to suggest that you can be required to change shifts, but if you don't get two hours' notice, you get a penalty?---Well, its main intent is dealing with the penalty aspect.
PN2032
It doesn't suggest you can't change shifts on notice, though, does it?---Sorry, I don't understand your question.
PN2033
It implies or suggests that shifts can be changed?---That's correct.
PN2034
Now, where else do we go? In this clause?---Yes. I deals with changes in shifts.
PN2035
Right, that provides that:
PN2036
Except for regular change-over, no employee shall be required to change from one shift to another without a break of at least 12 hours.
PN2037
So that seems to suggest that if there is a break of at least 12 hours, an employee can be required to change from one shift to another, doesn't it?---I'd say it's similar to the earlier one which is that one is dealing with the penalty and the other is dealing with the break.
**** MICHELLE O'NEIL XXN MR PARRY
PN2038
So you can change if there's a minimum of 12 hours' notice, but if you don't give 12 hours' notice and you don't give - I'm sorry, if you give 12 hours' notice, but don't give two working days' notice, you have to pay a penalty?
PN2039
THE SENIOR DEPUTY PRESIDENT: A 12 hour break.
PN2040
MR PARRY: I'm sorry, your Honour?
PN2041
THE SENIOR DEPUTY PRESIDENT: A 12 hour break and two days' notice.
PN2042
MR PARRY: I'm sorry, I didn't quite - - -
PN2043
THE SENIOR DEPUTY PRESIDENT: A 12 hour break and two days' notice.
PN2044
MR PARRY: Yes.
PN2045
Do you follow that?---No, sorry. I've lost your question.
PN2046
It seems if we read G with I, that an employee can be required to change from one shift to another if he or she is given at least
a 12 hour break, but if you do give a 12 hour break, but not a two shift break, then you have to pay a penalty of $2.70?
---I'm saying to you that there's other provisions that also apply in relation to the change in the shifts. These are not the sole
provisions.
PN2047
Do you accept that what I've just put to you is a sort of fair reading of G and I?
---I don't know if I'd characterise it as fair.
PN2048
Are you saying I'm wrong in the way I've just characterised it?---No. I just said I wouldn't characterise it that your reading of it is fair.
PN2049
Where else do we go to find provisions that deal with this? You said the hours of work clause. Can we go to the hours of work clause? I think that's 18. Can you tell me within clause 18 whether there's some restriction or limitation on an employer requiring an employee to move from one shift to another?---That wasn't what I said.
PN2050
All right, so it's not in clause 18?---No. Your question to me didn't say where will limitations or restrictions apply. Your question to me was what would be the clauses that would be relevant in terms of any change or transfer of shift.
**** MICHELLE O'NEIL XXN MR PARRY
PN2051
All right, then, let's stay with your articulation of my question. What's relevant to change of shift in hours of work?---Well, it provides additional restrictions, for example, on the Monday to Friday work, the ordinary hours that apply in relation to shift workers, the number of shifts that they could work in accordance with this in clause 20, the hours of work within a day, so if there was in your hypothetical situation someone being asked to change from one shift to another, then the matters as to whether the shift met these other requirement or not, the shift they were being asked to change to wouldn't come into play, so shift doesn't operate in isolation. Sometimes workers are asked to change shift and the shift that they're being asked to change to doesn't operate in a manner that reflects these other clauses.
PN2052
Let's assume it's a shift that complies in all senses with the shift clause. It's within the definition, it's been worked by other employees and an employee is asked we want you on two days' notice to go from day shift to afternoon shift and I've taken you to the clauses in the shift provision that deals with that. Can you tell me what is in clause 18, hours of work, that prevents or impacts on that change?---If it was consistent with clause 18, it wouldn't.
PN2053
So if it was an existing shift that was being worked, nothing in clause 18 would prevent that occurring, would it?---In your hypothetical situation, no.
PN2054
Right, so that's the hours of work. Now, you said the Act, general clauses in the Act?---I think I said specifically the clauses that incorporated the ILO provisions in relation to family responsibilities.
PN2055
Which ones are they?---I don't have the numbers or the Act in front of me.
PN2056
Well, give me an idea of what sort of provisions you're thinking of and I'll see if I can find it?---I thought you'd be aware of them, Mr Parry, given your experience, but I don't have the numbers or the Act in front of me, but I am aware that it incorporates provisions in relation to family responsibilities.
PN2057
What incorporates provisions?---The Act.
PN2058
Does it incorporate them in your enterprise agreement?---It applies in relation to our enterprise agreement.
PN2059
By what mechanism?---By the operation of the Act. Can I give you an example to help you understand it?
**** MICHELLE O'NEIL XXN MR PARRY
PN2060
I think I need it?---What happens in practice is that when there is a requirement or a request from a company for someone to transfer shifts, then one of the things that is frequently relied upon by the union and has been relied upon in relation to discussions, in fact, are that similar arrangements with this company is whether the change or the transfer of shift would have a detrimental effect in relation to an employee's family responsibilities, so that is a relevant factor in determining whether it's a reasonable or appropriate thing for the worker to be required to change shifts.
PN2061
There is nothing explicit to that effect at all in your enterprise agreement, is there?
---The Act operates in conjunction with the enterprise agreement.
PN2062
So you think it's a fair and reasonable outcome to interpret the Act and your industrial instruments in light of the Workplace Relations Act?--- I don't think I have a choice about it, Mr Parry.
PN2063
You do it, you do interpret them in light of the provisions in the Act, don't you?
---That's right.
PN2064
You accept that - I'm sorry, I withdraw that. So you can't assist us with what particular provision - is it the old Act you're talking about or the new Act, amended Act?---My understanding is that it survives both versions.
PN2065
And could you just give me the sort of tenor of why you say you necessarily incorporate or bring in those provisions from ILO conventions into the industrial instruments that apply, just the tenor of the argument?---The tenor of the argument is there's been a number of precedent cases. I can remember one in relation to some nurses in Canberra that I think was significant in terms of drawing on the provisions of the family responsibility requirements in the Act, when there was requirements for those nurses to change shifts that impacted on their family responsibilities and others that I don't readily have in my mind, but the tenor of it is that if, for example, you have child care responsibilities, you're a single parent and the impact of transferring from a day shift to a night shift would mean that your children would be alone without care, then that's a relevant consideration.
PN2066
Those cases you refer to have been cases where there have been provisions inserted in the industrial instruments?---I couldn't say, Mr Parry.
PN2067
MR BORENSTEIN: Your Honour, it may save some time, since Ms O'Neil hasn't got references to particular provisions, if perhaps I indicate to my learned friend that he may be interested in clause 8 of the award on page 11.
**** MICHELLE O'NEIL XXN MR PARRY
PN2068
MR PARRY: I'm sure my learned friend will make submissions about these particular sorts of matters.
PN2069
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2070
MR PARRY: Ms O'Neil, those cases you refer to, do you accept that - - -
PN2071
MR BORENSTEIN: Well, your Honour, it's not a matter - I'm sorry, it's not a matter of making submissions, your Honour. I mean, Ms O'Neil is being cross-examined and being asked to identify provisions and she's having difficulty identifying them and the subsequent questions are all up in the air because no-one has any specific point of reference. Now, she's made reference to provisions in the legislation. How does this line of questioning assist the Commission when there's a particular provision which grounds the whole line of examination?
PN2072
THE SENIOR DEPUTY PRESIDENT: I think Mr Parry was seeking through the witness to have such provisions identified. That was the point of his cross-examination.
PN2073
MR BORENSTEIN: I understood that and the point of my standing up was that the witness was obviously in difficulty and so where does it take the whole matter for her being in difficulty, not having it at her fingertips, to then be asked all sorts of questions? How are they relevant, when at the end of the day one comes back to something that might be in the document and which directly answers the question which the witness just can't remember?
PN2074
THE SENIOR DEPUTY PRESIDENT: Yes. Well, the intervention has been made, so we can't do much about that.
PN2075
MR PARRY: Dealing with the evidence you've given about other cases that have been run, you don't know whether those have been cases where there have been particular provisions inserted in industrial instruments or not, do you?---No.
PN2076
No, and the provisions that deal with change of shifts in your instruments, the ones that explicitly deal with change of shift, I think we've agreed in clause 20 in the shift clause and we look to the hours clause to make sure the shifts are operating properly?---No, I didn't agree with that supposition.
PN2077
You don't agree with it?---I said there was a number of things that affected how the operation of that clause would work and I've explicitly drawn to your attention my understanding of the award and the Act in relation to family responsibilities.
**** MICHELLE O'NEIL XXN MR PARRY
PN2078
There is nothing that gives the option of asking for volunteers for transfer of shifts explicitly in your instruments?---There's nothing in the EBA in relation to - if it was on the same site. There is if it was a shift transfer in relation to another site.
PN2079
You've read the AWA. You've seen that Feltex in the AWA is placing an obligation on itself to ask for volunteers first to change
shifts or hours of work?
---Yes.
PN2080
That's a good thing?---I think it's always a good thing to ask for volunteers.
PN2081
Thank you, and the transfer of shift, if it is to be permanent involves two weeks' notice of the transfer of shift. That's a good thing, isn't it?---I wouldn't agree with your characterisation of a good thing. It would depend on the circumstances.
PN2082
It's more than the amounts that are prescribed in the shift clause in the award, isn't it?---In terms of the notice provision, but I would say that the requirement in the agreement, given that I don't agree with your hypothetical proposition in terms of no agreement needing to be made, then, no, I don't necessarily agree that two week's notice is a good thing comparative to having to have agreement.
PN2083
Greater periods of notice are generally better, aren't they?---A greater period of notice does not replace a better obligation in terms of agreement being required.
PN2084
If I could move on to overtime, you have a concern about the removal of a provision dealing with overtime from - I take it that the concern is the removal of the overtime provision from the 1994 award. Is that the concern?---Mr Parry, are you dealing with our document in terms of the comparative table? If you are, could you take me to the point that you're referring to?
PN2085
Well, I'm really, I suppose, dealing with your examination in chief where you said - you were asked about whether you had a concern about removal of protections and you gave an answer that there was a disadvantage to employees from the removal of provisions concerning reasonable overtime and so I suppose I'm really attempting to deal with where that concern comes from, as to the alteration to the overtime provisions?---It would assist me if you could take me to the numbering of the clauses you're asking me to comment on.
PN2086
Do you have your comparison sheet?---I do.
**** MICHELLE O'NEIL XXN MR PARRY
PN2087
It deals with overtime, page 24, I think - yes?---Thank you.
PN2088
I think I'm dealing here with your concern - do you have the AWA in front of you?---I've got it. Yes.
PN2089
You had a concern that 8.1 about the requirement to work additional overtime would somehow disadvantage employees?---I think if you look at clause 19 of the award.
PN2090
Yes, I have clause 19, 19G(1) are we referring to?---Yes.
PN2091
Your concern is somehow the removal of G(1) is going to disadvantage employees?---Yes, I think I spoke about this yesterday in terms of the requirements in relation to reasonableness that existed in the 2000 award.
PN2092
I think you gave an answer a short time ago that said, well, you have to read these instruments with the Workplace Relations Act, didn't you? Do you remember saying that?---I said I don't think I have a choice.
PN2093
Yes, but you were quite comfortable, I think, in the last discussions to look at the provisions in the Workplace Relations Act, weren't you?---I wouldn't characterise it as comfortable. I felt I didn't have a choice.
PN2094
You were quite happy to take what you could out of the Workplace Relations Act?---No. I wouldn't characterise it as being happy about it. I said I didn't have a choice.
PN2095
Have you looked at section 226(4) of the Workplace Relations Act with regard to overtime?---I don't have the Act in front of me.
PN2096
You can have my copy.
PN2097
THE SENIOR DEPUTY PRESIDENT: What provision are we looking at, Mr Parry?
PN2098
MR PARRY: 226 - well, it starts off with 226(1)(b) which speaks of:
PN2099
The employee must not be required or requested by an employer to work more than reasonable additional hours.
**** MICHELLE O'NEIL XXN MR PARRY
PN2100
And then there's a definition in (4) of reasonable hours and various factors that must be taken into account.
PN2101
THE SENIOR DEPUTY PRESIDENT: 226(4), yes.
PN2102
MR PARRY: Have you looked through that?
PN2103
THE SENIOR DEPUTY PRESIDENT: And those provisions are referred to in the AWA in 8.1, not exclusively, but - clause 8.1.
PN2104
MR PARRY: Don't you accept that when you read the AWA with the Act, you should have no concern about any change regarding the working of overtime and, indeed, the protections in the Act are greater than occur in your award?---Well, if you look at page 68 of the 2000 award which is the reference I made yesterday in terms of the overtime provision - - -
PN2105
Yes, so we go now to the 2000 award? Which clause?---37.1.1.
PN2106
Right?---And the difference I would say between the AWA and the provisions of the current agreement read with this award provision is what's specified in 37.1(b) which says:
PN2107
An employee may refuse to work overtime.
PN2108
So it's the difference between a requirement to work reasonable overtime and a right in the current instrument to refuse it.
PN2109
Well, wait a second. You're not taking to the current instrument here, you're referring to the 2000 award which isn't incorporated in the EBA?---These provisions would apply because they're more beneficial and if you look at the EBA, there's a specific clause that references that.
PN2110
Which clause is that?---3.1 makes it clear that the agreement is read in conjunction with it.
PN2111
Yes?---And there's nothing in the agreement that's inconsistent.
PN2112
Yes, but it doesn't incorporate the Textile Industry Award, does it?---Well, this applies. Unless the agreement incorporated something specifically within it that supplanted it, it applies and there's nothing in the agreement that does it.
**** MICHELLE O'NEIL XXN MR PARRY
PN2113
Yes, but there is something in the agreement that deals directly with the working of overtime. That's in the 1994 award. That's expressly incorporated?---As is this. This is referenced. The issue in terms of having the capacity to refuse to work overtime applies.
PN2114
Sorry, as I understand it, clause 3 expressly incorporates and makes it as part of the agreement the 1994 award, the agreement that incorporates that is to be read in conjunction with the Textile Industry Award as an inconsistency, the agreement which incorporates the 94 award prevails?---Yes. It's not an inconsistency.
PN2115
I see, so your view is there's not an inconsistency if two matters deal differently with the same matter?---It's not an inconsistency because this particular provision is not dealt with specifically in the 94 award provision.
PN2116
All right?---It's a different provision and it stands alone in the 2000 award.
PN2117
All right, so that's your concern, the difference between able to be required and an employer not being able to require and an employee being able to refuse? That's the one difference?---That's the fundamental difference.
PN2118
That's the one difference?---It's not the only difference, it's the fundamental difference.
PN2119
I see. Now, I think just to go back a step to the discussion we're having about change of shifts. I think my learned friend jumped up and was going to give you some help on this, but was it the provision that you wanted to draw in that which is in clause 8 about achieving the objects of the Industrial Relations Act by preventing and eliminating discrimination on various grounds that people can discriminate on the grounds of?---Clause 8 of what?
PN2120
The award, the 94 award.
PN2121
THE SENIOR DEPUTY PRESIDENT: Page 11, or page 11 on my copy, clause 8(b)?---Yes.
PN2122
MR PARRY: Right, so can we just deal with that quickly, then? If there was no such discrimination under that provision, then that wouldn't deal with or affect the operation of the transfer of shift provisions?---Are we back dealing with your hypothetical situation that I disagree with?
**** MICHELLE O'NEIL XXN MR PARRY
PN2123
Yes?---So in your hypothetical situation, that's correct.
PN2124
All right, and that deals I think on your argument with particularly taking into account family issues?---I don't understand your question.
PN2125
You've gone to or you've been taken to that provision about not being discriminatory on various grounds and I think you were referring to in your answer to me as to the import of that as to the conventions dealing with family and family-like responsibilities. That was your particular concern with regard to that?---I think it was an example.
PN2126
It was your particular concern, wasn't it?---I think it was an example.
PN2127
Have you seen a provision in the AWA that gives the option of making known personal and family responsibilities in the context of transferring shifts? Have you seen that?---Could you tell me the clause number?
PN2128
Yes, 7.4(c)(iii)?---I can see that, yes.
PN2129
That's a good thing, that that specific requirement is put in the context of a transfer of shift provision, isn't it?---Well, I think it's a much narrower requirement than currently applies.
PN2130
It's a good thing it's in there, isn't it?---Well, I don't think it's good that it's narrower than what they're currently entitled to, no.
PN2131
You don't think it's a good thing it's even referred to?---I don't think it's a good thing that it's narrower than what they're currently entitled to. It would limit their entitlements.
PN2132
I understand. Now, could I move on to annual leave and I understand the evidence you gave here was that there was some change based on the wording of the instruments to the Christmas shut-down and I think you particularly went to clause 14 of the AWA. Now, this concerns the position that you say that there's an obligation of 15 days to be taken, right, over Christmas?---14 of the AWA is allowances.
PN2133
I am sorry, the EBA?---I've got clause 14 of the EBA.
**** MICHELLE O'NEIL XXN MR PARRY
PN2134
When one puts the word may in an instrument, it usually indicates there's an option, doesn't it?---It depends on the context, if may appears in the sentence and the paragraph.
PN2135
Generally the word may gives an option, doesn't it?---It depends on the context of where it appears in the sentence and the paragraph.
PN2136
You've drafted many industrial instruments. Generally the word may means there's a discretion?---Unlike yourself, Mr Parry, I'm not a lawyer.
PN2137
No, but you've drafted a lot of industrial instruments?---I have a go at it occasionally.
PN2138
The word may usually suggests there's an option, doesn't it?---It depends on the context of the sentence and the paragraph it's in.
PN2139
It can raise that as a possibility?---Yes, it can.
PN2140
Probably not a good word to use if it does have a couple of different meanings and has to be reading a context. You agree with that?---It depends absolutely in the terminology and the context it's drafted. Sometimes it's a very useful clause.
PN2141
You see, reading 14(e), it makes the minimum of 14 days preceded by the obligation on the employer as it may be a minimum of a period of 14 days. Do you see that?---I wouldn't read it in that way, no.
PN2142
One construction of that is that there's an option?---I wouldn't agree with you on that, no.
PN2143
I see. The word may is ambiguous in that context?---I don't think it's ambiguous in this sentence or paragraph at all.
PN2144
Have you looked at the obligations in the AWA in clause 18.2 about the obligations for shut-downs?---Yes, I have.
PN2145
And in particular (a), the word shall appears there as an obligation on the employer and must. Do you see those?---I do.
PN2146
That's clear, isn't it?---Well, what's not clear is - - -
**** MICHELLE O'NEIL XXN MR PARRY
PN2147
No, no, before you go on - - -?---- - - the difference between December and January and Christmas.
PN2148
You accept that the use of those words makes the obligations on the employer clear, don't you?---I do.
PN2149
Thank you?---What's not clear is that in that clause - - -
PN2150
Which question are you answering here? I'm sorry, is there a question?---I'm just continuing to answer the first question which is that in that clause, the December and January period is what is prescribed, whereas the clause you were comparing it to explicitly talks about Christmas close-down, so it's inconceivable that there shall be a close-down that could happen in December or in January that didn't cover the Christmas period.
PN2151
It's common sense reading of it, isn't it?---What I just said?
PN2152
Yes, it's common sense reading of your industrial instrument?---No, no, common sense that the AWA could require that there would be a shut-down for a period of 14 days that did not cover the Christmas period.
PN2153
That's not a common sense construction, is it, in the context of the operations of Feltex, is it?---I think if it meant to say Christmas, it would say Christmas. It doesn't say Christmas. It says the December/January period.
PN2154
Now, the transfer between sites, at present under the EBA, transfers can be made between Hallam and other sites on the other side of Melbourne, can't they?---It's possible. It's never happened.
PN2155
So when you say it's never happened, do you think it's fair that in constructing these instruments we should consider the likelihood of an event happening?---I'm not really clear what you're asking me.
PN2156
You seemed enthusiastic to add in this but it's never happened. Do you see that?
---I didn't characterise myself as enthusiastic, Mr Parry, but maybe it seemed like that to you.
PN2157
You added it in. You see, I didn't ask you that. You added it in. You obviously saw that as important, whether something has happened or not?---I'm still not clear what you're asking me.
**** MICHELLE O'NEIL XXN MR PARRY
PN2158
You see that the likelihood of something happened - I'm sorry, I withdraw that. You think in looking at these instruments, we should adopt a common sense approach, looking at the likelihood of an event happening, don't you?---I didn't say that, no.
PN2159
All right, so why did you say it's never happened?---I thought you might like to know.
PN2160
Why did you think I might like to know that?---Because you're not familiar with the operations of the business and I am.
PN2161
So can we break this into two components? Number one, you accept the employer has got a right to do it, to transfer from Hallam to the other side of town?---No. It would absolutely depend on the circumstances. I conceded that the agreement provides that possibility. Given the distance involved, I would think that there would be a number of circumstances where there would be a question about the right to do it.
PN2162
The industrial instrument on its face makes clear, doesn't it, that an employee could be required to transfer from Hallam to the other side of town. Do you agree with that?---I'm not sure what you mean by on its face, because I think that some of the things we were discussing in your previous line of questioning would obviously immediately come into play as well. If the worker was to be in any way disadvantaged or any discrimination or any indirect discrimination that would apply through such a transfer, then I think that would have an effect about how it would apply and given the huge distances involved, I would expect that if there was a requirement to transfer somebody from Hallam to the western suburbs or vice versa, that there would be likely to be those sort of arguments about it.
PN2163
It's desirable that those sort of arguments be removed by taking that option out, isn't it?---Absolutely.
PN2164
And the AWA does that. That's a good thing, isn't it?---Instead, it opens up the opportunity of transferring Hallam employees to another company.
PN2165
No, no, if you can just deal with my question. It's a good thing, isn't it? It's a good thing?---It's a good thing - - -
PN2166
Thank you?---- - - that the obligation - - -
**** MICHELLE O'NEIL XXN MR PARRY
PN2167
I'm sorry, is this another question I didn't ask, is it?---No, this is just me answering your question.
PN2168
No, you're not answering questions?---I am answering the question.
PN2169
You're not here to make speeches. You can do that outside?---Mr Parry, I'm sorry if I'm not as succinct as you'd like me to be, but I'm answering your questions.
PN2170
No, you're not answering my question?---What I was going to say was that the basis of people being able to - - -
PN2171
Can I go on to transfer to other sites?---- - - requiring people to transfer to another company is I think not a good thing.
PN2172
It's never been arbitrated, never been to the Commission under the disputes procedure of transfer of sites?---I think you asked me this yesterday. I said I didn't know.
PN2173
You don't know? You were dealing with transfer between sites yesterday and I think you raised the issue - I'm instructed that Hallam employees have been transferred temporarily in the past?---I'm unaware of that.
PN2174
Presumably the people in the Commission here would know whether that was true or incorrect?---Which people?
PN2175
The people there?---I suspect that the people on your side of the room, they have a clear idea. We don't have anyone from Hallam present.
PN2176
All right, so we could assume that if I get instructions on that from my people, it's rather more likely to be - it's likely to be the case?---No. I would want to get some instructions myself. I'm not sure if I've got the people in the room who could provide that.
PN2177
Okay. Now, you raised some issue yesterday about transfers, about going back to the original position and I think this appears in clause 19. Yes, I'm sorry, it's in your certified agreement, clause 19. You raised a concern about an employee, if they had been transferred, this is (e), that if a similar position becomes available at the employee's original site, the employee will be given the opportunity to transfer back providing the skill requirements can be met and then where they return to their original workplace, they would be provided with a position held prior to the transfer, wherever possible. Do you see that?---Yes.
**** MICHELLE O'NEIL XXN MR PARRY
PN2178
You raised a concern yesterday that that had been removed?---Yes.
PN2179
Have you seen clause 7(c)(vi) of the Australian workplace agreement?---I don't have a 7(c)(vi).
PN2180
7.4(c)(vi), I'm sorry?---That seems to be a similar provision.
PN2181
Thank you. You deal then with redundancy. You raised yesterday the bad conduct of Capital Carpets and them making significant redundancies without - I withdraw that. The conduct of Capital Carpets as I understood your evidence yesterday was that they made significant redundancies without discussions with employees?---That's correct.
PN2182
I would take it that when they did that back in the early 90s that they were bound by the Textile Industry Award either 1994 or its predecessors?---They were bound by two things. They were bound by - in the Tottenham case, they were bound by the Pacific Carpets redundancy agreement that applied between 1992 and 1995 and they also were bound by the relevant awards of that time.
PN2183
And I'm assuming that either the 86 award I think it was or the 94 awards contained provisions that were the TCR provisions?---I don't know if they were the same as the TCR provisions. They had redundancy provisions.
PN2184
It's highly likely that the conduct of Capital Carpets at that time was simply in breach of the agreements and the awards, isn't it?---I'm not sure what you mean.
PN2185
Well, your evidence was that they announced significant redundancies without discussions with employees. Such conduct would be in breach of the TCR provisions, wouldn't it?---They would in terms of the current instruments. I assume they would be in terms of those instruments as well, yes.
PN2186
So we're here dealing with an employer that is really defying industrial instruments, aren't we?---Yes.
PN2187
Thank you. Now, the skill level review, schedule L, now, schedule L was originally placed in the award before 1994, wasn't it, to enable the classification for those under the pre-94 award to be moved into the 1994 award?---No, that wasn't its purpose. The translation procedure came about as a result of what was then characterised as the award restructuring exercise where there were skill based classification structures inserted into all awards and a long period of negotiation between the representatives of the industry and the union in terms of what was a fair and reasonable classification structure to insert into awards that I was part of.
**** MICHELLE O'NEIL XXN MR PARRY
PN2188
You see, that translation procedure in schedule L was deleted from the 1994 award in December 1995, wasn't it?---I don't know.
PN2189
Well, perhaps to assist you on that, I think it's on page 167 of the award. The actual annexure B, schedule L translation procedure
appears on page 193?
---Sorry, Mr Parry, which award are you referring to?
PN2190
The 1994 one?---Which page?
PN2191
Well, on my document at page 167.
PN2192
THE SENIOR DEPUTY PRESIDENT: Do you have that, Ms O'Neil?---I do.
PN2193
MR PARRY: You've read that?---I'm not sure what you're asking me to read. I've got 167.
PN2194
Does it have the bit schedule L translation procedure deleted?---No, it's got schedule J deleted.
PN2195
So schedule J removes all the old classification structure, right?---Maybe I can help you. What happened is that - - -
PN2196
No, no, I'm just trying to work it out myself. The position is that the translation mechanism in schedule L still had and I'm not suggesting here it's not in the instrument, I should point out. It continued to have continuing effect at the operations of Feltex in moving people into the new classification structure. That's true, isn't it?---Yes.
PN2197
Right, and there's been a lot of work done in moving people onto the classification structure?---That's right.
PN2198
And some people have received back pay - I'm sorry, much of the work was done and people were moved on to the new structure under the 2001 EBA?---No, I think the substantial work in terms of the skill level translation happened under the 2004 EBA.
PN2199
Right, and that process of reclassifying people has been ongoing and the vast majority of people have been classified?---Well, it doesn't have an end point, because my understanding is that most businesses, including Feltex, like people to improve and increase their skills and so if you increase your skills, then you have an entitlement to a skill level classification review.
**** MICHELLE O'NEIL XXN MR PARRY
PN2200
There are some employees that still have been through the process, but are disputing the outcome?---That's right.
PN2201
And they're generally at Hallam?---No. Some of them are at the other sites as well.
PN2202
And the AWA and Godfrey Hirst have agreed to continue the process in respect of those employees that are in dispute?---That's a clause that I understand operates in terms of those who were in dispute prior to the receivership, but my point is that employees at any point can request a review of their skill base classification structure and have an entitlement to have that reviewed.
PN2203
That could go through the disputes procedure, couldn't it?---Not if there's not a clear procedure that applies, so the evidence that I gave yesterday went to the fact that schedule L provides a very detailed translation procedure that allows the involvement of a consultative committee and the union and extensive explanation to employees in assistance for them at every step in the process.
PN2204
A classification dispute could easily go through the disputes procedure in the AWA, couldn't it?---I don't think I'd agree with you easily.
PN2205
You don't agree with me?---Not the easily bit.
PN2206
THE SENIOR DEPUTY PRESIDENT: It's the normal process, isn't it? Most agreements have no translation process or other classification
process specifically set out that obviously any employee is entitled to dispute a classification?
---That's right. The difference is that with the - one of the reasons that the 1994 award has actually been incorporated and attached
to each of the certified agreements in the textile industry in Victoria is about the specific issue, so it was to do with concern
about what has been long periods of time where there hadn't been reclassification of employees where we'd earlier had an expectation
that it would have been done. It was one of the reasons why we've, both at Feltex, Godfrey Hirst and the other certified agreements
that operate in Victoria in the industry continue to apply the 94 award. That is one of the reasons.
PN2207
Are you saying there are employees other than those on the list which Godfrey Hirst will deal with who haven't as yet been translated
to the new structure?
---No. What I'm saying is that if it was the case that another group of employees sought further reclassification, the procedure
would apply.
**** MICHELLE O'NEIL XXN MR PARRY
PN2208
But isn't there a difference between translation to the new structure and then subsequent reclassification for a person having been translated?---Yes, the industry parties at the time that the translation procedure was inserted into the award contemplated that there would be at a different point an agreed national competency assessment arrangement. That industry agreement was never reached, so the ongoing operation of the translation procedure has continued in the industry because of the absence of any broader, as may apply in some other - for example, in the metals industry, you'd be familiar with following translation, there was then agreed competency assessment arrangements that operated on an industry level. That didn't happen in the textile industry and the ongoing operation of the translation procedure has continued as a result, so it hasn't been supplanted by an agreed competency assessment method.
PN2209
But not by force of the award, but by the parties taking into account similar processes and criteria?---By force of the 1994 attachment into the agreement and that procedure continuing to apply.
PN2210
Very well. Thank you.
PN2211
MR PARRY: If your Honour pleases.
PN2212
Outdoor workers, you gave an answer yesterday to my learned friend about - I think it was to the effect that outdoor workers really is a mechanism used in the clothing industry and is unusual in the textile industry, but in that context you said there had been previous arrangements with Godfrey Hirst regarding samples done outside the shop. You weren't suggesting there, were you, that you have any knowledge that Godfrey Hirst has ever had outdoor workers?---No, I wasn't saying that.
PN2213
You're never aware of Godfrey Hirst having outdoor workers, are you?---No. What I was aware of was Godfrey Hirst having their samples made outside the workplace. I think the terminology in the clause is factory or workshop.
PN2214
By people that were not their employees?---That's correct.
PN2215
Thank you, and with regard to facilities, you said that there had been issued with some employers in the industry about I think you said first aid, drinking water, hot water. That hasn't been the case at Godfrey Hirst?---Godfrey Hirst or Feltex?
**** MICHELLE O'NEIL XXN MR PARRY
PN2216
No, Godfrey Hirst, concerns about first aid facilities, drinking water, hot water?
---I think there's been concern at some Godfrey Hirst sites in relation to the heat aspects that are contained within that. Heat
is one of the issues that's contained within those facilities clauses. Could you take me to the number, Mr Parry?
PN2217
No, no. When did this occur? When?---As recently as last year, there was concerned on one of the Godfrey Hirst sites in relation to heat.
PN2218
How were they taken up by the union?---I'd have to talk to the organiser about the specific arrangements, but I'm aware of them.
PN2219
You don't know the specific arrangements?---No. I'm aware that the union has through its shop stewards and its organiser had a number of issues and disputes in relation to heat with Godfrey Hirst.
PN2220
I think yesterday in answer to some questions I think from my learned friend about - I think you mentioned the word model and the model that you have in the industry is incorporating the 1994 award, in an EBA and somehow reading that with the 2000 award. Is that the sort of model that you say operates or is sought to be operated by your union?---I think I said in Victoria.
PN2221
In Victoria, yes. Sorry, in Victoria, and the difficulty with that under the current Act is that you can't call up old awards into
workplace agreements now, can you?
---Well, this is interesting because given that the 94 award is fully incorporated into the majority of textile industry certified
union agreements that exist at the moment, it would be read I would say as a term of that agreement, as opposed to a previous award,
because it's fully incorporated, so in those circumstances it could apply as the immediately prevailing industrial instrument.
PN2222
So it's possible you could enter into a workplace agreement which incorporated the 1994 award?---Yes.
PN2223
Well, has your union entered into any workplace agreements at all after the amendments to the Workplace Relations Act?--- Agreements, yes.
PN2224
Workplace agreements, certified or lodge under the Act?---No.
PN2225
And I think your union has come to this case saying the AWA doesn't offer suitable alternative employment to preclude the payment of redundancy pay. That's your position in these proceedings?---That is our position.
**** MICHELLE O'NEIL XXN MR PARRY
PN2226
Is it the position that if the terms of the transmitted instruments applied, that would preclude the payment of redundancy pay?---Sorry, can you repeat the question?
PN2227
If the instruments transmitted - the Feltex agreement transmitted and the employees were offered employment on that basis, wouldn't the Feltex agreement as it stands, that would preclude the payment of redundancy pay?---I'd have to seek some advice about that.
PN2228
Don't you have a view one way or the other, your union?---I think I have - given the circumstances of what's happened here in the last few days, I'd want to seek some further advice about it.
PN2229
You see, Ms Rechenberg-Dupe gave evidence that you said to her the continuation of the existing agreement might trigger an entitlement to redundancy?---I didn't use those terms, no.
PN2230
Did you say anything to her that suggested that the transmission of the existing instruments might not be acceptable alternative employment
under the award?
---I think when we were asked to clarify that it was, I said I wasn't sure.
PN2231
So it may be your union's position is that the transmission of the existing instruments is not suitable alternative employment?---I wouldn't characterise that as our position, not at all.
PN2232
No, no, I'm not saying it is your position. I'm saying it may well be your position.
PN2233
MR BORENSTEIN: What does that question mean, your Honour?
PN2234
MR PARRY: Well, you are not ruling out as an option - - -?---It's not our position. What I said is that I would want to, given the circumstances of what's been discussed in this case in the last few days, seek some further advice about it.
PN2235
This is something you haven't taken advice on as to whether continuing the existing instruments would be acceptable alternative employment?---Mr Parry, I think I've answered it three times.
PN2236
Well, the answer is you have not taken any advice on that?---No, I said given the circumstances of what has happened in this Commission over the last few days, I would like to seek some advice about it.
**** MICHELLE O'NEIL XXN MR PARRY
PN2237
But this Commission has been about the AWAs. It hasn't been about this option?
---Well, I think this Commission has been about what constitutes acceptable alternative employment.
PN2238
Right, and your union does not have a position one way or the other as to whether the continuation on the existing instruments is acceptable alternative employment?---I think I've said four times now that given the circumstances of this Commission, I'd like to seek some further advice about it.
PN2239
And I'm suggesting to you as a hypothetical, it's quite possible your union might take the position - - -
PN2240
MR BORENSTEIN: Well, your Honour, how is she to answer a hypothetical question?
PN2241
MR PARRY: This is a legitimate hypothetical.
PN2242
MR BORENSTEIN: A legitimate hypothetical.
PN2243
THE SENIOR DEPUTY PRESIDENT: Go ahead, Mr Parry.
PN2244
MR BORENSTEIN: Well, your Honour, what probative value can it have for her to answer a hypothetical question? She's being asked what the position of the union is. She's given her answer and now he's saying, but if we created a different world, if we get in the Tardis and go to another universe, what would your answer be in the other universe? How can that possibly help your Honour?
PN2245
THE SENIOR DEPUTY PRESIDENT: Very well, I've heard the objection. Go ahead, Mr Parry.
PN2246
MR PARRY: The hypothetical is this. It may well be the position of your union that if offers of employment were made that assumed the transmission of the instruments, that your union would take the position that that is not acceptable alternative employment and would trigger an entitlement to redundancy?---We would seek advice.
PN2247
THE SENIOR DEPUTY PRESIDENT: You don't have a position at this point on that?---No, we don't have a position at this point and we would seek advice.
**** MICHELLE O'NEIL XXN MR PARRY
PN2248
MR PARRY: You have attached to your statement letters that were - I think it's MON23 and it was a document of 26 October 2006, Godfrey Hirst sent you a letter and it said at the bottom of the page:
PN2249
Please review the enclosed document carefully and I would appreciate your feedback as to the actual provisions which you believe are significantly reducing and changing the current terms and conditions of employment.
PN2250
You never provided any feedback in response to that until you delivered your critique last Thursday, did you?---No, I wouldn't agree that that's the characterisation of it because that document is very similar to documents that had previously been provided by Ms Dupe to the TCFUA and a document was provided that went in some detail to our concerns about it on 13 October.
PN2251
After you received this letter on 26 October, you gave no feedback at all, did you?---I was in contact, I think it's in the exhibits, I can find it, if you look at the letter from me to Mr Kim McKendrick on 25 October which is clearly outlining that the union sought to continue negotiations over a union collective agreement and that we were concerned that the proposal that had been put to us by Ms Dupe would result in a significant reduction and change in employees' current terms and conditions and having said that, we're always open to consider any other options raised and we've offered to meet with the board or board members to discuss where we're at and if you look at the last sentence of my letter to Mr McKendrick, it says that I hope I'm mistaken about this and we could move forward with the issue. For our part, the union would like to see the issue resolved quickly so our members have the security of their ongoing employment.
PN2252
That's the only feedback you can point to, isn't it?---No. There's another letter from myself to Mr McKendrick that urged him to contact me by phone, to have a direct discussion with me about it which he never did. I took the view that the negotiations that had involved Ms Dupe and Mr Hartigan had become - what's the correct characterisation of it? Those negotiations were being protracted and that were not looking likely to resolve the matter and that given that Mr McKendrick is the senior officer and owner of the business, that it was appropriate to try and engage him and the directors of the business, given the seriousness of the matter, in trying to resolve it with us, so I took the view that going to the most senior officer of the company and seeking his involvement was a way to resolve the matter.
**** MICHELLE O'NEIL XXN MR PARRY
PN2253
He wasn't a person you had been negotiating with at all, was he?---No, but
my - - -
PN2254
No. Thank you?---- - - experience in similar dealings with Godfrey Hirst - - -
PN2255
Perhaps if - - -?---- - - is that when there is something that becomes intractable, difficult to resolve, that the involvement of the owner of the business is often a circuit-breaker and a way of getting some co-operation.
PN2256
The second page of MON23 refers to becoming bargaining agents and negotiating in respect of the proposed AWAs. Have you taken any steps to become bargaining agents for any employees of Feltex?---You'd be aware that we actually consider it unlawful, the offering of the AWAs, Mr Parry, and we've got action in the Federal Court saying that we think it's an unlawful action that's being taken.
PN2257
I take it this is a no, this is a no?---We think the action is unlawful, then we would like to have that matter dealt with rather than start to engage with it.
PN2258
That's a no, you've taken no steps in that direction, have you?---Which direction?
PN2259
To get appointed as bargaining agents?---The steps we've taken is to take the matter to the Federal Court saying the offering of the - - -
PN2260
THE SENIOR DEPUTY PRESIDENT: Come back to the question. The question is have you taken any steps to act as bargaining agents for the employees in respect to the AWAs?---No.
PN2261
Thank you.
PN2262
MR PARRY: Have you got the EBA in front of you? I was curious about one thing?---The EBA?
PN2263
Yes, the EBA, and on page 19, there's this paid maternity leave policy, attachment D. Do you see that?---I do.
PN2264
Do you see the bottom of the page, it's got all other aspects of employee parental leave benefits are in accordance with the relevant company policy, award or legislation?---Yes.
**** MICHELLE O'NEIL XXN MR PARRY
PN2265
Have you seen the company policy with regard to parental leave benefits?---I don't know.
PN2266
You've never looked for it or know what's in it?---I said I can't recall if I've seen it or not.
PN2267
Are you aware whether it's changed or not?---No, I'm not aware.
PN2268
Thank you. I have nothing further, if your Honour pleases.
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Parry. Mr Borenstein.
<RE-EXAMINATION BY MR BORENSTEIN [11.10AM]
PN2270
MR BORENSTEIN: Just in relation to the correspondence with Mr McKendrick that you were asked about just recently, Ms O'Neil, you indicated that you had had some other correspondence with him and I just want to identify what that was. You said that you had written to him on 25 October. Could you have a look at attachment MON22 to your affidavit? Do you have that with you?---I do.
PN2271
I just want to know whether that's the correspondence that you were referring to?
---I was also referring to another piece of correspondence where it ended with a request for Mr McKendrick to contact me with my phone
number involved.
PN2272
You I think gave evidence that you responded to this letter of 26 October from Mr McKendrick. I wonder if you could have a look at MON26, please?---Yes.
PN2273
Is that the correspondence that you sent in response?---That's right.
PN2274
Your Honour, I have no other re-examination. May Ms O'Neil be excused.
THE SENIOR DEPUTY PRESIDENT: Very well. Thank you, Ms O'Neil. You may stand down. You're excused.
<THE WITNESS WITHDREW [11.12AM]
PN2276
THE SENIOR DEPUTY PRESIDENT: I was going to take a five minute break before submissions.
PN2277
MR PARRY: Your Honour, I am content with that, except yesterday - Ms O'Neil can leave the box, with your Honour's permission.
PN2278
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2279
MR PARRY: My learned friend, when Ms Anderson was in the box yesterday, said he had received instructions about particular - and he named two employees, a Mr Holt and said they had given him instructions that they hadn't signed contracts and we have documents which go to those employees and others that are in the Commission. Your Honour will recall my learned friend said there are others in the Commission, that he had taken instructions and I have a bundle here. Now, it has names and addresses on it, I've just noticed. I wanted to just hand up the bundle of documents and give them to my learned friend before the break, that was all.
PN2280
THE SENIOR DEPUTY PRESIDENT: Yes, very well. Each of those documents evidences a signature to a offer of employment?
PN2281
MR PARRY: Yes, but as I just noticed, they have Mr Redding's, Mr Gearer and some addresses that I don't - - -
PN2282
THE SENIOR DEPUTY PRESIDENT: We don't require those.
PN2283
MR PARRY: Don’t need as part of the document. Now, normally I would tender the document and I would prefer to do that, I think, but I'm happy to delete from that document the addresses of employees and anything else my learned friend wants deleted.
PN2284
MR BORENSTEIN: Well, your Honour, I don't mind my friend handing them up, but can we just have some time to get some instructions from the people that are here?
PN2285
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2286
MR PARRY: If your Honour pleases.
PN2287
THE SENIOR DEPUTY PRESIDENT: Very well. Did you have any further evidence? I should have asked you that first, Mr Borenstein.
PN2288
MR BORENSTEIN: Perhaps I'll wait and see what the instructions are about these letters and subject to that, no, I don't.
PN2289
THE SENIOR DEPUTY PRESIDENT: How long will you require to obtain instructions?
PN2290
MR BORENSTEIN: Well, your Honour was going to adjourn for five minutes. If the people are here, then we'll find out during that five minutes.
PN2291
THE SENIOR DEPUTY PRESIDENT: Very well. I will adjourn for five minutes.
<SHORT ADJOURNMENT [11.15AM]
<RESUMED [11.26AM]
PN2292
MR BORENSTEIN: Your Honour, we don't oppose the tender and we won't be calling any further evidence.
THE SENIOR DEPUTY PRESIDENT: Very well. Mr Parry, I will mark those documents. I will strike out on my copies the addresses of the relevant employees and the parties can do the same.
EXHIBIT #F15 BUNDLE OF DOCUMENTS, LIST OF EMPLOYEES' NAMES
PN2294
MR PARRY: I understand your Honour still holds the Commission and all the powers you held this morning.
PN2295
THE SENIOR DEPUTY PRESIDENT: Yes. Well, the statement of the High Court which is not intended to be a substitute for the reasons, indicates that by a five/two majority, the court rejected the challenge to the central features of the Act and also the various challenges to the particular provisions. In that circumstances, I don't have to offer you an ability to make submissions as to the impact, if any, of the decision on these proceedings.
MR PARRY: Your Honour, we have prepared a written outline of final submissions which comes to some 26 pages. What we have done is we have taken the original submissions that we files and added to them and attempted to predict some of the arguments and so I don't intend making extensive further oral submissions to your Honour about these various matters. Perhaps if I could hand up and distribute that document.
EXHIBIT #F16 WRITTEN SUBMISSIONS
PN2297
THE SENIOR DEPUTY PRESIDENT: In light of the nature of that document, there's obviously no reason to bring in the earlier outline into the proceedings.
PN2298
MR PARRY: Your Honour, what I will do for the assistance hopefully of yourself and my learned friend is to quickly run through it, to explain the structure of it and firstly, your Honour, the jurisdiction of the Commission essentially reproduces what we had in our original document. We set out the procedure from the agreement and we set out the procedure from the Capital Carpets agreement and we contend on that basis your Honour has power to deal with the dispute about redundancy and the entitlements under that procedure.
PN2299
We then describe from paragraph 8 onwards the nature of the dispute and that deals with a construction as to which particular part of all these instruments you come under. Now, ultimately we say not a lot turns on this, but our position is that when one goes to the Capital Carpets agreement and I took your Honour through this in opening, so I'm not going to, we contend that that Capital Carpets agreement is silent as to alternative employment in a transmission situation such as the present and accordingly, one turns to the Textile Industry Award and the Textile Industry Award specifically frozen in time as at 1998 which leads one to the alternative employment in the acceptable alternative employment test which we have set out in paragraph 25.
PN2300
Your Honour has been taken through that line of reasoning already. I don't repeat it. The TCFUA have advanced in their written document two arguments. One is that the Capital Carpets agreement does deal with the present position and that turns on the phrase - well, clause 5(a) which deals with an alternative position is available, offering a reduced rate of pay or materially different terms and conditions. Now, if that is a correct construction and that's the first one advanced by my learned friends, then unless the alternative position involves a reduced rate of pay or materially different terms and conditions, there isn't a redundancy and there's no entitlement for redundancy payments.
PN2301
Now, your Honour, we've gone to the Macquarie Dictionary. We've included in there a definition of materially and that's to an important degree considerably, so we say unless the conditions of employment in the AWA are different to an important degree or considerably, there's no entitlement and so ultimately we say a similar argument, we end up at much the same sort of place. The second argument seeks to somehow bring in the words of the 2000 award by I think using the phrase read in conjunction with.
PN2302
Now, that phrase, read in conjunction with, has been considered by the court, by Keely J. The quote is set out therein and we say that we are led back to the acceptable alternative employment test. In any event, we say the terms and conditions are substantially similar and no less favourable. That then brings us to acceptable alternative employment. It's been considered by Full Benches of this Commission on a few occasions.
PN2303
Exacts of those are set out herein, your Honour. Paragraph 42 makes clear that acceptable alternative employment is not necessarily identical employment and there we deal with some of the major incidents of employment, continuity of service, rates of pay, hours of work, fringe benefits, work load and speed, location, probationary periods and so forth and we recognise that each is decided on their own facts, but in paragraph 44 we do cite a couple of cases where people have either had to travel much greater distances, change from store workers to truck drivers or even been moved into rotating shifts and had rostered days off taken off them and it's still seen as acceptable alternative employment.
PN2304
Now, your Honour, then on page 11, the offers need to be obtained by Feltex. We say they have been obtained by their negotiations and the sale agreement, the AWA, then we turn to the fact that the offer is to be made on the basis of an AWA. In paragraph 48 we say that that's obviously an enforceable instrument. Paragraph 49 and 50 deal with three particular cases where an employee has been under an agreement or award under the Act and the alternative employment has been not under the certified instrument, but on a common law contract and the Commission has not found that moving industrial instruments has been a factor in that assessment.
PN2305
Your Honour, as is the way of the world, I'm going to hand to your Honour a folder which is the applicant's authorities. I also provide a copy of that to my learned friend. I think that contains every authority that is referred to in our submissions. Now, then, your Honour, we deal with the general content of the offers and these are what normally people would say are the significant terms of employment, that is what is important to people and firstly is job security.
PN2306
Well, job security, at Feltex there isn't any. The employer is broke and the offers are with a stable and major group in the industry. The union has suggested that it's a subsidiary of the parent company, the purchaser has negotiated a deed which involves a guarantee, so entitlements are protected and the union have signed off on that. The new terms and conditions are legally enforceable. They recognise prior service.
PN2307
Wages are the same rates they are now and, your Honour, in the brackets there I have placed the figure 70 per cent of the employees covered. Now, I recall evidence that - your Honour might recall this, of Ms Rechenberg-Dupe about employees being on over award payments, that is - - -
PN2308
THE SENIOR DEPUTY PRESIDENT: Over agreement payments.
PN2309
MR PARRY: Sorry. Your Honour is correct, yes. I'm falling back into old jargon. Your Honour asked her about that, about over agreement payments and I vaguely recall a figure of 70 per cent. Anyway, I am just putting a question mark and I do recall her naming a percentage, that is there's a significant number of people that receive not what's in the agreement, but they receive an amount above that and the offer maintains that over agreement rate firstly.
PN2310
Secondly, the Feltex agreement on one view will have a one per cent increase in the next year. There's an argument that there's an entitlement to an extra one per cent which I'll deal with shortly, but let's assume it, two per cent, that's the same increase that's provided for under the AWA. The AWA also has ongoing increases guaranteed for the next two and a half years. Hours of work, well, the hours of work are the same. Classifications, they're the same, they'll do their same work in their current classifications and location, there's no change.
PN2311
Now, we have attempted to in the next part pre-empt some of the critiques, firstly the placing of obligations in AWAs rather than leaving them in contracts, the reference to policies, the future of the current arrangements absent an AWA, changes to right of entry and union involvement, the effect of the code and various differences between the AWA and the current arrangements. Now, firstly, when one places obligations and entitlements in AWAs, there's advantages and disadvantages.
PN2312
People can enforce them or there can be penalties. That's not new in the world of employment law or industrial law. Now the Feltex agreement has a number of obligations on members which, if they breached, they could be penalised for. Some are expressed badly, but some talk about and we've set one out in paragraph 55 and clearly a breach of that could expose a penalty. Now, that's a highly hypothetical, strained argument and it is a meaningless argument when one compares it with the current arrangements, that is where their employment is set out in a contract of employment with this enterprise agreement overlaid or sitting alongside and your Honour's familiarity with industrial law and employment law would recognise that there are any number of authorities as to what goes into contracts of employment and not uncommonly, policies are treated as having to be complied with under contract of employment.
PN2313
All the policies of Feltex were requested by the union and provided on the day they were requested. The policies of Godfrey Hirst were requested by the union and provided on the day they were requested, some two weeks ago and there's been no issues taken up about the contents of those policies or unfairness that arises out of them or, indeed, an argument that they shouldn't have policies at all. Now, under an employment contract, if you breach it, there can be damages actions by the employer, but this hypothetical world that somehow gets raised really doesn't assist in this assessment, in our submission.
PN2314
The creation of an AWA doesn't change this position for the worse in any real, material or substantial sense and in a curious way, entering into an AWA which encompasses all the terms and conditions of employment on one view can protect an employee from the sort of damages actions for breach thereof and your Honour might note section 413, so, indeed, the creation of this instrument may well be a significant protection for these employees from their existing position.
PN2315
Now, the next heading, your Honour, deals with the potential invalidity of the Feltex agreement. Now, we make this submission because it shouldn't be assumed that the Feltex agreement is guaranteed to survive for a year. Your Honour might have noted from the Feltex agreement - I am sorry, your Honour, this arises directly out of clause 7.5.
PN2316
THE SENIOR DEPUTY PRESIDENT: Of the Feltex agreement.
PN2317
MR PARRY: I am sorry, 7.5 of the agreement and it says:
PN2318
Over the period of this agreement, the quantum percentage paid to all TCFUA members across the site will at least equal the quantum percentage paid to AMWU and ETU members at the site.
PN2319
And then it refers to this adjustment to reflect the total quantum made to members of those unions over the period of the agreement. Now, this is an agreement that is binding on Feltex in respect of its employees and on the TCFUA and members thereof. Now, the clause manifestly on its face provides a benefit for TCFUA members, but doesn't provide to non-members. Now, that's the clear words of it. Your Honour might recall a decision of Marshall J where he held that the refusal of a wage claim based on union membership contravenes section 298K.
PN2320
On its face, such a provision, clause 7.5, would be objectionable under the Act as it stood when this agreement was certified and on that basis, a court could rule there is no valid certified agreement or the Commission could revoke the certification. Now, we're not here making that application as the receiver, but we're here saying that there's a vulnerability that attaches to this agreement that makes a valid and proper workplace agreement a more preferable alternative and we do make the observation and in respect of the extra one per cent that is to arise under this clause that clause 7.5 and 7.6 are void in any event under section 298Y of the Act as it stood when the agreement was certified and that provides that a provision is void to the extent that it requires or permits or has the effect of requiring or permitting any conduct that would contravene this part.
PN2321
Our argument is that a wage increase to go to union members is a contravention on its face and accordingly clause 7.5 would appear to be void, so the AWA has advantages over that position. The next item concerns the reference to policies and your Honour might recall the cross-examination of Ms Dupe about policies and the written material of the union raises this issue about whether a reference to abiding by policies in an AWA makes the document somehow doubtful with regard to enforceability.
PN2322
We say that that would be a most remarkable outcome, given that a clause in virtually the same terms was held to be legitimately part of a contract in a case considered by the Full Federal Court and it was held to have the effect of doing two things, incorporating the policies in the employment contract of the employee and implying mutuality and your Honour might recall the decision of Weinberg J at first instance which followed that course which wasn't overturned on appeal.
PN2323
So as to the validity argument, there is no parallel with the FSU v Commonwealth Bank case. There the clause that affected the validity essentially said the parties can make instruments in the future which prevail over the terms of the certified agreement and that's in paragraph 70 of that. That's not the case here, so we submit that the complete terms of the AWA are ascertainable and in effect deal with the real world, that is employers have policies and they're required to have policies.
PN2324
All employers have policies and they have policies on occupational health and safety, equal opportunity matters and they have effect and if you don't have policies, sometimes you're in contravention of the law, so it's unremarkable that the employer will have policies and that the employees are expected to comply with them. The second argument raised in the written material by the TCFUA concerns what happens on termination of the AWA.
PN2325
Well, that argument placed in the written material presupposes termination which involves an active step by the employer. What happens absent termination is that at the end of two and a half years, the AWA continues on. That is in contrast with the Feltex agreement, your Honour, which will cease in a year to be a source of any obligation on the employer and at that time, the AFPCS is applied and the 2000 award less prohibited content, less objectionable content and subject to the further rationalisation and simplification processes and that will occur without any action by the employer, so the agreement obligations that here much has been made of have a maximum life of one year.
PN2326
The next argument the union raise is right of entry and we simply note there's a deed, your Honour has seen that. Right of entry has been held not to be a term and condition of employment in any event. The removal of references to union agreement being required, in each relevant case in our submission, the agreement of the employee is required and the employee, him or herself, doesn't lose any particular rights.
PN2327
Your Honour, if I could go on on page 17 to objectionable content. It is the fact now that large parts of the Feltex agreement are void and that arises from the operation of section 810 and 811 of the current Act which refers to objectionable provisions which firstly has provisions that require or permit conduct contravening this part are disregarded and, (b) a provision that directly or indirectly requires a person to encourage another to become a member of an industrial association or discourages from becoming a member, (c) a provision that indicates support for persons being members and so forth.
PN2328
Now, they're not words of necessarily simple application and one could debate their effect and operation, but we would say that there are serious arguments that they could impact on large parts of the Feltex agreement, we've set out those provisions and large parts of appendix A being the 1994 award. Now, it may well be the position that large slabs of this agreement are now void and not in accordance with the Act and we've set out a list. I won't run through that.
PN2329
Now, then you have the next concept which is going to impact on the current employment arrangements of prohibited content and prohibited content, there's a range of matters. At the end of the year, as we say, the Feltex agreement disappears, leaving the 2000 award and the AFPCs under schedule 6 - there's a number of sections of the Act, section 20 in schedule 6 which I won't take your Honour to, but clearly there's a number of sections that will be affected.
PN2330
The next heading is legal framework. We simply say that we construe our offers in the context of the laws of the land. That appears consistent with the views of the union as given by Ms O'Neil today. The code of practice is then dealt with and in 85A we deal with the prospects of agreeing with the union about replacing it with a co-compliant agreement. That appears an unlikely prospect and we would respectfully disagree that you could call up the content of the 1994 award via calling up the pre-amendment certified agreement.
PN2331
Importantly, paragraph 85, your Honour, B, deals with the importance of this work to Feltex in the future and that's transcript page 695 where - paragraph 695 where Ms Rechenberg-Dupe said in answer to cross-examination from my learned friend and this is in respect of tendering on government work:
PN2332
It's an area where Feltex has recently been quiet because of uncertainty over its future. Its commercial business has been curtailed somewhat, but we definitely plan to go and quote very heavily.
PN2333
And she also said on paragraph 697:
PN2334
We want to achieve compliance because this sort of work is an essential part of carpet manufacturers' business. It would be precluded from that and it would severely disadvantage a company.
PN2335
So our position is that co-compliance for the future job security of these employees may well become very important. We then deal with the various current changes and we've taken these from the issues raised in evidence. We do say that the current instruments are hard to follow and that's fairly manifest from the debates I was having with Ms O'Neil about various obligations. We agree with her that things need to be interpreted in a common sense way without, with respect, silly hypotheticals or strained constructions of documents.
PN2336
We submit she's correct and she applies common sense and looking at the way things have operated before. Over the page, we have ancillary skills classification. To make it clear, we would certainly see that one could use the disputes procedure for debates about classifications. We've dealt with jury service, casuals, change of shift, transfer between sites. I'm not going to take your Honour through the written material and ultimately the orders or determinations that we seek are set out on page 128 - I'm sorry, paragraph 128.
PN2337
As we say in paragraph 129, your Honour, and Ms O'Neil made much in her statement of wanting to avoid redundancy because it's a bad thing for people. Respectfully we agree. We want to, we being the receiver, wants to avoid putting people into a redundant situation. The purchaser, Godfrey Hirst, wants to avoid that. It wants to offer employment to these people. It wants the business operating. So we respectfully agree with Ms O’Neil about the need to avoid redundancy and the consequences if that occur. The alternative appointment being offered would have that outcome, that these employees would not be redundant. Unless there’s anything I can assist your Honour further with that’s - I’m simply commenting on what’s in this document.
PN2338
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Parry.
PN2339
MR PARRY: If your Honour pleases.
PN2340
THE SENIOR DEPUTY PRESIDENT: Mr Borenstein.
PN2341
MR BORENSTEIN: Your Honour, we have taken a similar course to that which Mr Parry has taken in terms of an outline of submissions and we have effectively built on the original outline that we filed initially. And could I hand up - - -
THE SENIOR DEPUTY PRESIDENT: Yes.
EXHIBIT #TCFUA9 OUTLINE OF SUBMISSIONS OF THE RESPONDENT TOGETHER WITH TABLE
PN2343
MR BORENSTEIN: Your Honour, there’s a reference in the document to a calculation in a table about sick leave and I should tender that up at the same time.
PN2344
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2345
MR BORENSTEIN: That’s to be treated as part of the submissions.
PN2346
THE SENIOR DEPUTY PRESIDENT: Very well. The table headed Sick Leave Accrual Example will form part of TCFUA9.
PN2347
MR BORENSTEIN: Going then to our document your Honour will see that we don’t take any issue with the jurisdictional basis asserted for the present application. We seek to make the point that the Capital Carpets agreement does govern the entitlement to redundancy of the workers at Feltex. We have set out at paragraph 6 of our outline the references to clause 2(a) and clause 5(a) of that agreement and clearly clause 5(a) requires interpretation. We have made reference in paragraph 7 to the evidence which is contained in Ms O’Neil’s affidavit which attests to the context in which the agreement arose and it’s our respectful submission that the context in which the agreement arose, the industrial context out of which it arose, is a permissible and relevant factual matter which the Commission can take into account in construing the document.
PN2348
We have set out for your Honour an extract from the Full Bench decision in ASU v Australian Tax Office. We have copies of that here, your Honour, but we have set out the extract at paragraphs 55 and 56 and your Honour will see that the Full Bench adopted the guidance which was provided by Madgwick J in Kucks v CSR and your Honour will see that his Honour states that one does not take a narrow or pedantic approach to the interpretation of an Award, but the search is for the meaning intended by the framers of the document bearing in mind that such framers were likely to be of a practical bend of mind and so on. And then half way through that paragraph:
PN2349
It is justifiable to read the Award to give effect to its evident purposes, having regard to such context -
PN2350
Perhaps I should go back:
PN2351
The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been ...(reads)... been written into the Award. Deciding that an existing Award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an Award.
PN2352
And so on. And then the Full Bench goes on to say that the approach was endorsed by the Full Court and by two judges of the High Court and then in paragraph 57:
PN2353
The industrial context in which an agreement is negotiated is relevant to determining the mutual intention of the parties to the agreement.
PN2354
And that’s the passage from the Full Bench, your Honour. And it’s on that basis that we say, your Honour, that the evidence of Ms O’Neil as to the circumstances at Capital Carpets which gave rise to the negotiation of this agreement and the purpose or object of the agreement are relevant and in that respect we say that it leads one to give clause 5(a) a meaning which is consistent with that and which is also consistent with the plain words of the clause which simply say that:
PN2355
Where an employee is being notified of his or her impending retrenchment and an alternative position is available offering a reduced rate of pay or materially different conditions of employment the employee involved shall have the choice of accepting transfer into such alternative position or opting for a redundancy in lieu.
PN2356
So we say the words are sufficiently clear themselves, but when you add into it the context then we come to a position where that is a clause which would apply in the present circumstances. Now, true it is as is stated in Mr Parry’s outline of submissions that we have to demonstrate that there are material differences in the conditions and we accept that burden, but we say that once that is established then the taking or not taking up of the redundancy is a matter of choice for the employee and it’s not dependent on a determination of whether there is an acceptable alternative employment offer. We have set out that submission in paragraphs 8 and 9.
PN2357
If the Commission is not minded to accept that submission - and that’s our primary position - but if the Commission is not minded to accept that position then it’s submitted in paragraph 10 of the outline that we then have to go to clause 3.4 of the enterprise agreement which incorporates the ’94 Award as it stood on 30 June 1998 and further that the EBA is to be read in conjunction with the 2000 Award. Now, clause 48(e) of the ’94 Award uses the phrase acceptable alternative employment and clause 22.7 of the 2000 Award gives an employer a dispensation from the obligation to pay where the employee has rejected an offer of employment with the transmittee in which terms and conditions of employment are substantially similar to and no less favourable considered overall than the terms and conditions applicable at the time of ceasing employment with the transmittee.
PN2358
Now, the reconciliation between the clause in the 1994 Award and the clause as it’s framed in the 2000 Award may be found through reference to the supplementary decision in the redundancy case in 2004. A clause in the form of clause 22.7 was introduced in that decision and we hand up a copy of the decision and we draw attention to page 70 clause R7 and in particular R7.1 paragraph (b) and you will see that the first dot point there contains the same clause. Now, prior to that the transmission clause was as it stands and you will see this on page 69 in clause R5 of the decision.
PN2359
You will see that R5.1 sets out an exclusion by reference to the refusal of acceptable or the obtaining of acceptable alternative employment, but then goes on at 5.2 to exclude that from a transmission situation. Now, what we say, your Honour, is that R7 was introduced - and the transcript of the hearing makes this out - R7 was introduced for the purpose of giving certainty to the principles which were annunciate in the 1984 decision which is the decision where the form of words in the ’94 Award came from. And so we have a copy of the transcript.
PN2360
THE SENIOR DEPUTY PRESIDENT: So do I, Mr Borenstein.
PN2361
MR BORENSTEIN: I beg your pardon?
PN2362
THE SENIOR DEPUTY PRESIDENT: So do I, Mr Borenstein.
PN2363
MR BORENSTEIN: No doubt, but perhaps we can keep this one with this file. And we simply direct the Commission’s attention to page 8 paragraph PN8284 which explains how R7 came into existence.
PN2364
THE SENIOR DEPUTY PRESIDENT: I'll treat that in the same way as authorities. I won’t mark it.
PN2365
MR BORENSTEIN: Yes, of course. So the up shot of all of that, your Honour, is the test which is set out in the ’94 Award which is the acceptable alternative employment in our respectful submission needs to be read in conjunction with the clause in the 2000 Award and that the clause in the 2000 Award should be seen as explanatory of the intent of the clause in the ’94 Award so that it picks up the concepts of the terms and conditions being substantially similar and no less favourable considered overall. Now, that may be where we end up in any event, but that’s the path we submit that one takes.
PN2366
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2367
MR BORENSTEIN: We also accept that once you’ve established what the relevant test is that the application of the test is to be done objectively and I think that’s a matter common to the parties.
PN2368
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2369
MR BORENSTEIN: And we also accept that the matters that the various cases have identified that are referred to in the outline that Mr Parry handed up are matters that are relevant, but we say they are not necessarily exhaustive of the matters that the Commission would take into account. Our position is that the matters that we have identified in the table, which is exhibit TCFUA which is the comparison table, make out that the offer of employment is not an acceptable offer of employment as we use that phrase and we then proceed to set out a survey of the various matters that we submit make the offer of employment significantly inferior to the conditions which the employees enjoy in their current employment.
PN2370
And it may be, your Honour, that the way in which the case has emerged that your Honour wouldn’t necessarily confine the comparison to simply the entitlements or what’s prescribed in the EBA, but in the employment generally so far as that’s evident from the evidence. There are a number of categories that these deficiencies or inferiorities which we seek to draw attention to. The first of them which is in paragraph 20(a) is the point that, as we raised with Ms Dupe in her evidence, there are a considerable number of provisions in the AWA which expose the employees which impose obligations as obligations of the industrial instrument on the employees and thereby expose them to potential penalties under part 14 of the Act.
PN2371
Now, that is a quantum shift from the position which obtains under the current employment. There is nothing in the EBA which does anything like that in relation to these matters and there is nothing in the contract of employment which does anything like that. There’s some discussion in the applicant’s outline about the fact that there are existing policies at Feltex and so there are, but it’s a quantum change to convert something that is, we would say, in substance equivalent to the issue of reasonable instructions by an employer or directions by an employer to an employee under a contract of employment to making them a matter that can be the subject of a penalty proceeding.
PN2372
The legal position of the individual involved is a world apart in respect of being exposed to a penalty. We have listed starting at page 7 a series of these matters that we have identified. The first of them is the policies and apart from just making the policies now compliance with the policies, a matter where a penalty is potentially available, we also draw attention to that these policies can be unilaterally change so that you sign up and you might think that they’re the policies in the folder which was tendered, but there is nothing in the EBA that prevents the company in a week or a month or three months time from issuing new policies or other policies.
PN2373
Indeed there is a clause in the EBA which says that a reference to any instrument includes any updating of it or - I think it’s in clause 2, I'll just direct your Honour’s attention to it. Yes, it’s in clause 2 of the AWA which says:
PN2374
A reference to this agreement, company policy or to any other deed, agreement, document or instrument includes respectively this agreement, company policy or such other deed, agreement, document, et cetera, as amended, notated, supplemented, varied or replaced from time to time except to the extent prohibited by this agreement.
PN2375
And these are company policies which can be generated unilaterally without reference to anybody, any employee or union or anyone else and they carry with them the implication that if you breach them there’s a penalty.
PN2376
THE SENIOR DEPUTY PRESIDENT: But that’s the issue. They can’t diminish the terms of the agreement.
PN2377
MR BORENSTEIN: Well, where does it say that, your Honour? It doesn’t say that at all.
PN2378
THE SENIOR DEPUTY PRESIDENT: I think in what you just read, the
final - - -
PN2379
MR BORENSTEIN: No. Not at all, your Honour. It doesn’t say that at all. It says:
PN2380
Except to the extent prohibited.
PN2381
They can’t be varied, replaced, et cetera, et cetera, except to the extent prohibited by the agreement. There’s no prohibition in the agreement to any of that. And this is the point, this is the second point that we want to make about the policies under the contract of employment. It’s precisely the difference. But under the contract of employment, of course, as a matter of law they can’t detract from the provisions of the statutory instrument, but there is no restriction in this document on them doing that. Indeed they seem to be incorporated by reference as part of the agreement.
PN2382
The other deficiency in this aspect is that where you have a company policy under the contract of employment, such as came up in the McCormick v Riverwood case which Mr Parry referred to, that was a case where the employee sought to enforce the policy against the company and the court held it could be done. But there is nothing in this instrument, in this AWA, which gives a commensurate ability for the employee to require the employer as a condition of the AWA to comply with its own policies. So you have a one sided obligation created. You have an obligation on the employee under the AWA under threat of a penalty to comply with the policy, but there’s no commensurate obligation on the employer to comply with the policy.
PN2383
THE SENIOR DEPUTY PRESIDENT: Going back for a moment to the potential for policies to diminish AWA terms and conditions, they couldn’t do that, could they, where there is a specific matter dealt with in the agreement providing, for example, wages? You couldn’t have a policy of wages, for example, because there is a specific wages provision within the agreement.
PN2384
MR BORENSTEIN: Your Honour is saying that they couldn’t have a policy which said that you won’t pay wages or you’ll pay different wages or something of that sort
PN2385
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2386
MR BORENSTEIN: You would imagine not. It would certainly be open to considerable challenge if they did something that was expressly provided, but there are a lot of things in this agreement that are left unsaid and obviously the policies are designed to cover a lot of activity that takes place in a workplace. I mean, we’ve got a folder of 40 odd policies dealing with all sorts of things. Our primary concern is that these are matters that are normally dealt with as a matter of procedure under the contract of employment or instruction by the employer under the contract of employment.
PN2387
It is, we would say, a rarity to put the employee in a position where for non compliance they can potentially - I’m not saying it would happen every day, but the potential is there for them to be exposed to a penalty and that’s the gravemente or the complaint about these items. Take, for example, the next item that we refer to on page 7 which is the time recording. People are supposed to clock in and they clock off and everybody knows that under your contract of employment it’s required that you do that in order for your time to be calculated. But this agreement takes it to another level. This agreement says that it mandates in the agreement itself that you must do that.
PN2388
And so again instead of having a situation where one of the employees might fail to clock in properly on this occasion or that occasion and there will be some sort of contractual disciplinary process applied to the person, here they’re immediately under threat of court proceedings. Now, again it may not be that it would be taken on every occasion, but why is it put into the agreement when in all other circumstances it’s normally just treated as an aspect of the employment relationship under the contract of employment? It’s a change from the position which obtains now to the position which it obtain afterwards and that’s the critical thing. And the fact that there’s a penalty makes it a significant change.
PN2389
Again you go to clause 24(a) of the AWA which deals with health and safety matters and we have set out on page 7 the obligations which in paragraphs (iii) and (iv) which obtain under the state legislation the Occupational Health and Safety Act and as we say Ms Dupe sought to justify this by saying well it doesn’t really matter because it’s all covered by occupational health and safety anyhow. But it does matter because it creates a new liability on these employees. They have an obligation as we have set out in the sections from the OH&S Act and that’s there. What is the necessity and that’s what applies to them now. Under the AWA not only do they have the existing obligations, but now they have new obligations with new penalties attached under the proposed AWA.
PN2390
For example in paragraph (iv) on page 8 we have set out the relevant comparator from the Occupational Health and Safety Act to clause 24(c) and we draw attention to the fact that under the section in the Act the employee is liable for intentional or reckless misuse of anything provided in the workplace. So that’s the level of liability which the Occupational Health and Safety Act says. But under the EBA there is no reference to intentional or reckless, it’s any misuse of things provided in the workplace that expose to the penalty. So it’s a significant deterioration in the position of these people.
PN2391
Again we have mentioned 24(d) which is the reporting obligations in terms of matters that arise in the workplace. Clause 25(b) the confidentiality, the clause about confidentiality which Ms Dupe suggested was a reflection of the common law obligations. We have got an extract for your Honour of the relevant parts of the text.
THE SENIOR DEPUTY PRESIDENT: Yes.
EXHIBIT #TCFUA10 EXTRACT FROM MACKEN, MCCARRY & SAPPIDEEN’S LAW OF EMPLOYMENT
PN2393
MR BORENSTEIN: Yes. Your Honour will see that there are categories discussed there by reference to the Court of Appeal’s decision in ...... There are types of confidential information which are treated in one way and there are other types which are treated in another way and some are able to be used by the employee and some are not. It’s to be contrasted with the terminology in clause 25(b) which is generalised in the absolute and is also open to construction. But the critical point is that whereas previously there may have been a contractual remedy now all of a sudden there is a statutory penalty which applies again. Same thing with clause 25, the use of company vehicles and same thing with the use of tools.
PN2394
Now, having imposed all of those obligations on the employees you might think that someone who was trying to prepare a balanced employment instrument might have done something about obligations on the employer, but clause 33 of the 1994 Award has been removed and that’s the clause which deals with the provision of various facilities about which Ms O’Neil gave some evidence yesterday. It’s of interest to note, your Honour, that the Godfrey Hirst enterprise agreement, which are in evidence and your Honour will find them at exhibit MON12 of Ms O’Neil’s affidavit and MON13, both incorporate the terms of the ’94 Award in the same way a the current EBA so that in the other Godfrey Hirst establishments clause 33 would still apply whereas on this occasion in relation to this particular operation it’s seen fit by the AWA to remove those obligations.
PN2395
We then make reference to the issues which we raised in relation to clause 24(b) of the AWA in relation to the safety training and protective equipment. Clause 25(c) concerning suspension of an employee while an investigation takes place is particularly objected to, your Honour, because of the prospective operation of the acknowledgement. In other words the employee is asked to acknowledge in advance in a vacuum that any suspension in respect of any investigation will be accepted and agreed to. That we would say, your Honour, is a particularly onerous and unreasonable obligation to impose. It may well be that in certain circumstances a suspension is justified, but to ask somebody to accept in advance that whatever the circumstance they accept that they can be suspended in our respectful submission is unfair.
PN2396
The next category of matters that we draw attention to is under paragraph (e) which are the various provisions of the EBA under which the union is given a role and where the role of the union is taken away and I don’t propose to take your Honour through those matters, but simply to ask your Honour to note them as your Honour prepares your decision and they run through to page 14. Now, the point of significance for the employees in this particular respect is as explained by Ms O’Neil in her evidence yesterday. There is a value to the employees of having the union mandated as a participant in these various processes, processes which operate for the ultimate benefit of the employees and processes in which the union an bring to bear its experience and knowledge of the industry not just in this particular workplace but more generally and it also serves to give some protection.
PN2397
Protection is probably too high a word, but some cushioning to the employees who have grievances and who feel reluctant to raise them one out and be identified as the person who is making the complaint. And your Honour will have over the years have come across these sort of situations where things happen and people say why didn’t anybody make a complaint and it’s apparent the employees are reluctant, and particularly the more precarious the place of employment is, are reluctant to be the one who puts their hand up or puts their head up to make a complaint or raise an issue and historically the union has given the ability for those things to be ventilated without people having to take that step and feel as though someone may seek some retribution, whether that’s a justified thought or not.
PN2398
But historically that’s been pointed to as an aspect of the union’s involvement in the industrial relations scene and we say it’s just as important now as it ever was, perhaps more so. But that’s the reason. They are the reasons why the removal of the union from these various functions under the enterprise agreement are matters of significance to the employees in terms of comparing what they have now with what they will have under the new order.
PN2399
THE SENIOR DEPUTY PRESIDENT: You say in your written submissions,
Mr Borenstein, is not to the point that such union involvement is precluded now by the Act. That raises a general issue raised by
Mr Parry as to the fate of the employees’ entitlements if the current instruments were simply transmitted with what would happen
to them within 12 months time and whether that is a relevant consideration.
PN2400
MR BORENSTEIN: Your Honour, the position that in one sense it’s speculative, but speculative within a particular framework. One aspect of the framework is that this enterprise agreement is due to expire in August of next year, but it would continue on in the normal way beyond its nominal expiry date until 12 months when the Act says that it comes to an end. Now, the material that your Honour has before you in the affidavits and the correspondence and so on indicate that in August of next year t the same time as this agreement expires the agreements at some of the other Godfrey Hirst sites also expire. They are also agreements with the same organisation.
PN2401
The period of three months between August and the end of the 12 month period is a period during which the employees would be able to engage in collective bargaining if they so wished. They would be able to exercise the various rights that they have under the Act in aid of that collective bargaining and it’s not beyond the realms of possibility that in those circumstances they might achieve a collective agreement which - - -
PN2402
THE SENIOR DEPUTY PRESIDENT: Well, it couldn’t address certain matters such as prohibited matters.
PN2403
MR BORENSTEIN: That's right.
PN2404
THE SENIOR DEPUTY PRESIDENT: The mention of the union.
PN2405
MR BORENSTEIN: That's right.
PN2406
THE SENIOR DEPUTY PRESIDENT: The High Court gives your clients no comfort in respect of that, has it?
PN2407
MR BORENSTEIN: Yes. That's correct, your Honour. The position that they have is that at least over the period of the next 12 months with the assistance of the union which they won’t have under the AWA at the end of the instrument they will have the assistance of the union to negotiate a new EBA and these are matters which they will not have under the AWA. When this EBA ceases, if it terminates and there’s no replacement, there is the added difference which is that the conditions that they go back to are broader than the conditions which they would come to when the AWAs are finally terminated. The basic conditions that one reverts to on the termination of the AWA are narrower than those which are available on the termination or expiration of the pre reform enterprise agreement and we’ve referred to that in the outline and your Honour will have the reference there.
PN2408
So really the position which your Honour, there are various stages that your Honour can look at it in. The first one is that as at if these AWAs come into operation on 1 December as at 2 December in terms of having the assistance of the union the position is immediately inferior and it continues to be inferior for at least 12 months. Now, we don’t know what’s going to happen at the end of 12 months, but at least for that period of time the immediate offer is inferior to the immediate existing position. Your Honour has seen in the materials references to common law agreements. There’s not been agreement on them, but your Honour is probably aware from your experience that there is some currency in negotiations between employers and unions to make use of common law agreements to facilitate some of the matters which are now prohibited content under the legislation.
PN2409
One can only speculate as to what the outcome of the negotiations at the end of the EBA will be. One can’t totally exclude it, on the other hand one can’t take it for granted. So in our respectful submission the best that the Commission can do is to say well they presently under their current agreement have the assistance of the union and this range of matters which are of significance to them. The immediate position thereafter is going to be that they don’t have the assistance of the union if they accept the AWA and that that position will continue for at least three years and maybe longer and at the end of the AWA term it’s questionable whether there will be any facility to have any sort of collective bargaining.
PN2410
I say that because as your Honour would be aware the employer can terminate an AWA on notice after the nominal expiry period. There’s no obligation on the employer to terminate everybody’s AWA at the same time and so an employer that may seek to avoid a collective negotiation of a new collective agreement may take the view that if they terminate the employment of the AWAs in a staggered way they break up the workforce and preclude that sort of bargaining taking place. That can’t be done at the end of the expiration of the EBA. And so again there’s a diminution in the position of the employees who are presently employed and so we say it’s another facet of the loss of the union’s assistance through the offering of the AWAs.
PN2411
The deed of confirmation of employee representation we deal with in paragraph (f). We make the points there and I don’t repeat them. I simply draw attention to the fact that if the company as it has said here it is going to do proposes to take government work then that deed will fall away immediately that happens.
PN2412
THE SENIOR DEPUTY PRESIDENT: Well, I’m not sure that was the evidence of Ms Dupe. Her evidence was it was uncertain as to whether the provision of carpets would in fact be caught by the national code of practice.
PN2413
MR BORENSTEIN: Yes. I think that as Mr Parry read out from the transcript I think that she said she was certainly keen to get government work.
PN2414
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2415
MR BORENSTEIN: And our submission simply is that if it is caught then that deed will fall away immediately.
PN2416
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2417
MR BORENSTEIN: At paragraph (g) we deal with the wage increase issue and that’s been ventilated and I don’t take any time to stop there, your Honour. Clause (h), your Honour, is a matter which we do stop to emphasise. This was explained to your Honour yesterday by Ms O’Neil. Your Honour, this is the issue about disclosure of financial information and Ms O’Neil’s explanation speaks for itself regarding its importance. Clause (i) deals with this question of the accumulation of sick leave and this calls up this document, this example, which we have provided to your Honour. The example seeks to illustrate how one can accrue sick leave during a period of up to 12 years and continue to accrue sick leave beyond the 12 years and to use up the sick leave that was accrued prior to the 12 years but within the terms that are permitted under the agreement and still be left with a significant number of days at the end.
PN2418
And it’s that kind of calculation which we rely upon to illustrate the detriment which is caused by the removal in clause 22(c) of the AWA of the entitlement to the accrued sick leave. In paragraph (j) we draw attention to the ability to cash out both annual leave and long service leave and we make our submissions about that there. Clause (k) deals with the failure of the AWA to make provision for the terms and conditions for part time employment. Now, we have given your Honour a reference to the clause in the EBA and the Award which do regulate those conditions of employment. Ms Dupe did give evidence to say that it wasn’t intended to employ part time employees under the AWAs, but our problem with that s that there are two issues.
PN2419
Firstly the AWA itself in clause 18(6)(c) provides for people who are employed under the AWAs to be able to come back on a part time basis after parental leave and Ms Dupe’s evidence about that was that would be done under a separate agreement though we don’t know what terms would apply to that whereas under the present terms of the employment those terms and conditions are set out. So what people are trading is is the known for the unknown. Secondly the failure to prescribe conditions for part time employment doesn’t simply go to the question of what conditions will apply to the people who are transmitting across.
PN2420
It goes to the protection of their security of employment in that it makes certain the terms upon which any part time employees who would be doing work which perhaps might otherwise be done by the full time employees, the terms on which those part time employees must be employed. And anyone with any sort of industrial experience would understand the significance in terms of job security that arises out of that sort of prescription. It’s the same sort of reasoning that was used by the High Court in the old Metal Trades case and the Dunlop Rubber case to explain why a union could seek an Award which covered the conditions of employment of persons other than its own members and the reasoning being that if you didn’t cover everybody in a workplace other people could undermine the position of the union members whose conditions were fixed.
PN2421
It’s the same sort of reasoning and it’s for that reason that it’s a significant matter to those people who are full time employees and who may have concern that at some point down the track in conditions which we can’t immediately foresee part time employees or casual employees who are also not provided for in the AWA might be used in some way to diminish the security of employment or the extent of work that is available to the full time employees. In paragraph (l) we have dealt with the question of annual leave and we have set that out fully there, your Honour. Paragraph (m) deals with transfers within departments and between departments and again we have made the submission fully there and I don’t stop to read it.
PN2422
We have also in paragraph (m) drawn attention to three matters dealing with the Hallam employees and again if your Honour will allow me in view of the time I won’t stop to read that either. Then at paragraph 21 we come to a section of the outline which identifies several ways in which the employees will be disadvantaged by the change of industrial instrument and in the first part of that we draw attention to what I was saying a moment ago about what one is left with at the end of the AWA as compared to the end of the EBA. We draw attention also to paragraph (d) which impacts on the ability of the union immediately to service the employees, for example, by right of entry rights which are restricted where there’s no enterprise agreement applicable.
PN2423
Paragraph 22 is a revisiting of the policies issue and paragraph 23 I’ve already addressed in the course of our discussions about those policies, your Honour. A couple of short matters that we want to make that aren’t in the outline but which arise out of the cross examination of Ms O’Neil this morning, just three of those matters. The first one is Ms O’Neil, made reference to in relation to the shift changes, made reference to the ILO conventions being somehow adopted by the legislation. Your Honour, she was taken belatedly to clause 8(b) of the ’94 Award at page 11 which makes reference to the objects of the earlier legislation, section 3(g).
PN2424
Section 3(n) of the current legislation picks up those same objects and schedule 5 sets out the convention, your Honour, and so we give your Honour those references. Ms O’Neil was then cross examined in relation to the annual leave and she was taken to the use of the word may at paragraph 14 of the enterprise agreement and it was suggested to her that may must mean that it’s not mandatory that 15 consecutive days have to be given. Ms O’Neil didn’t agree with that and rightly so because once again when one reads clause 14 in context and having regard to what Ms O’Neil said yesterday about how it came about one sees what the word may is really intended to do.
PN2425
The position that applied before this was the position in the ’94 Award at clause 30(a) on page 121 where the Award specified that there be 28 days of leave taken in a block. The 2000 Award then moved forward from that at clause 41.3.1 which your Honour will find at page 77 and again the periods in question were longer. And when you understand that then you read clause 14(b). What clause 14(b) is doing is to permit notwithstanding what the longer periods that are in the Award is to permit. A close down for a minimum period of 15 consecutive days. And so when you look at the history of the clause what you’re getting is a dispensation to the employer by saying the Award says so many days, but you may do 15 which is less as a minimum.
PN2426
So your Honour, it’s correct the interpretation Ms O’Neil maintained is the correct one. Then finally, your Honour, in relation to the skill level classifications there was some questioning about schedule L at page 193 of the Award. I’m not sure whether Mr Parry withdrew the submission or not, but schedule L, your Honour will see on page 193, was actually introduced into the Award on 1 December 1995 by the same instrument that repealed schedule J at the page which Mr Parry went to. But the point we want to make about it is that although t may be that in the absence of schedule L an employee might be able to raise a grievance about a classification problem through the grievance procedure the detailed processes of schedule L must be seen as being more beneficial than simply going to a grievance procedure.
PN2427
They would offer, in our respectful submission, a structured process which would advantage the employee to a greater degree than simply
attending for a grievance procedure and having an all out fight with an employer without any structure to the way in which the classification
is or isn’t accepted by the employer. Schedule L provides a structure which the employer must comply with and to that extent
it advantages the employees. Then finally, your Honour, we wish to draw attention to the evidence of Ms O’Neil in her affidavit
which was not contradicted by
Ms Dupe or any of the other witnesses, though Mr Parry belatedly and we would say unsuccessfully sought to challenge some of it.
PN2428
We draw your attention to paragraphs 29 to 59 which deals with the negotiations which occurred and the discussions which occurred between her and representatives of Godfrey Hirst in terms of what Godfrey Hirst would do with the employees from Feltex. We draw particular attention to paragraph 36 where in discussions with Ms Dupe in September it was Ms O’Neil reports that Ms Dupe indicated that Godfrey Hirst wanted to get the new Feltex employees into the Godfrey Hirst structure and at paragraph 38 of that the difference in agreement rates are paid between the two sites, that is between Feltex and Godfrey Hirst sites, was between 10 and 14 per cent.
PN2429
Then at paragraph 45 there is a report of a discussion with Ms Dupe where she indicated that what Godfrey Hirst was concerned about was what would happen in terms of conditions and wages at the end of the EBA coinciding with the ending of the EBAs at Godfrey Hirst sites and at paragraph 46 Ms Dupe is reported as saying that the message to the current Feltex employees was that Godfrey Hirst would Honour existing obligations but the gravy train was over, she wanted the Godfrey Hirst business model to apply to Feltex. Now, at the bottom of page 17 at paragraph 60 there’s also a passage which Ms Dupe says that Godfrey Hirst wanted changes to the current terms and conditions of employment.
PN2430
Ms O’Neil tried to clarify what those were. Ms Dupe said that these changes included a new classification structure, provisions relating to transfer of shifts and sites, capping of redundancy, grandfathering of redundancy and paid maternity leave, provisions relating to RDOs and so on. The point we want to make out of all of that, your Honour, is that number one it was never contradicted, never said it was wrong and that if your Honour is left in any doubt as to whether or not the AWA is intended to diminish the conditions that the Feltex employees presently enjoy then this material indicates what the real intent of the AWA is and to the extent that there is any doubt as to how particular provisions of the AWA might apply in practice then we would ask your Honour to bear in mind the statements that were made by Ms Dupe to Ms O’Neil and which are recorded in the affidavit which suggests that the direction in which Godfrey Hirst wishes to take the conditions of these employees is down rather than up.
PN2431
And for all of those reasons, your Honour, we would submit that on whatever test you apply, what conditions that are being offered to the employees under the AWA, are far inferior to those conditions which they enjoy in their present employment with Feltex and the application should be rejected.
PN2432
THE SENIOR DEPUTY PRESIDENT: Do you have any response to the reliance by Mr Parry on job security as a criteria?
PN2433
MR BORENSTEIN: Yes, your Honour.
PN2434
THE SENIOR DEPUTY PRESIDENT: I mean, a submission made in that respect the proposition is the only benefit the employees would enjoy would be to access the redundancy provisions of the Feltex agreement and no other provisions would be relevant.
PN2435
MR BORENSTEIN: Your Honour, we submit that it’s entirely wrong to say that you should bring into account the financial position of the transmittor in terms of the comparison. The whole point of the exercise is to compare the circumstances in terms of hypothesis that the current employment would continue and the old employment - I’m sorry, that the current employment would continue under the conditions which attain. You’re comparing what they have now with what they have on a transmission. It would undermine the nature of the process if you brought into consideration the financial positions of the transmittor and the transmittee. What you’re asked to compare are the offers of employment, the conditions and the offers of employment.
PN2436
Nobody has canvassed what the financial position of Godfrey Hirst is. This is not a matter that was outlined in the original outline of submissions that was made at the beginning of the case and had it been raised as an issue then Godfrey Hirst would have had to come along and say well actually this is our financial position and then the Commission would then have to compare, whether even though Godfrey Hirst operating today, whether in 12 months time it would still be operating.
PN2437
THE SENIOR DEPUTY PRESIDENT: But isn’t the issue raised by Mr Parry one of the agreement, the sale agreement being negated in the event of payment of redundancy payments?
PN2438
MR BORENSTEIN: Your Honour, the issue is that these people have substantial entitlements to redundancy. They have been offered employment with another employer and the application here is to deprive them of their choice to choose between taking their redundancy as it is now and the choice to go to the new employer. Now, assume for a minute that Godfrey Hirst says well, we’re not going ahead with the purchase. It would mean that their existing entitlements to redundancy would remain alive and would have to be met.
PN2439
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2440
MR BORENSTEIN: From their point of view the only question is that the purchaser wishes to deprive them of that choice by making this application and by making these offers. Now, so far as the purchase falling through or not falling through, that’s a matter for Godfrey Hirst. If your Honour finds that the conditions of employment are not acceptable there’s no evidence that Godfrey Hirst would withdraw from the sale. Ms Dupe didn’t say it, Mr Anderson didn’t say it. It may be that they would come back and make some other offer of employment, I don’t know. But your Honour ought not to proceed on an assumption about whether the sale will or won’t proceed unless there’s at least somebody from the company to say well this is what’s going to happen if.
PN2441
I also have been directed to a passage at paragraph 35 of Ms O’Neil’s affidavit in which she discussed with Ms Dupe the future of the employees there and on the last sentence of that paragraph, this is on page 10 of Ms O’Neil’s affidavit, it said:
PN2442
I pressed Ms Dupe about this issue and said that I’d be amazed if there was not a significant rationalisation of businesses between Godfrey Hirst and Feltex Australia at some point in the future resulting in redundancies. Dupe said that some job losses were likely but indicated Godfrey Hirst would be unlikely to do anything for at least six months.
PN2443
So the question of security of employment into the future is really an open question no matter what happens. But in terms of saying that the sale will fall through we say your Honour should not act on that. Your Honour, just one last matter.
PN2444
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2445
MR BORENSTEIN: The written submission makes some assertions about the validity of the current enterprise agreement under the freedom of association provision. We have not had prior notice of that submission but we say this, that the list of submissions which are set out or objection to the content which is set out in paragraph 7 we would say is not in an obvious way, certainly not all of it in an obvious way, objectionable content insofar as it produces a contravention or said that it may produce a contravention of what’s now part 16 of what use to be part 10(a) of the Act.
PN2446
The highest, in our respectful submission, that it goes is clauses 7.5 or 7.6 and because we did not have prior notice of this point we have not been able to get any evidence as to the way in which Feltex actually applies these provisions and indeed Ms Anderson who might have thought to be in the best position to give evidence about that wasn’t asked about them, wasn’t asked whether in fact union members are discriminated against, or not against but are discriminated against favourably.
PN2447
THE SENIOR DEPUTY PRESIDENT: Does it matter how they’re applied?
PN2448
MR BORENSTEIN: No, but - - -
PN2449
THE SENIOR DEPUTY PRESIDENT: Or rather the terms of the provision?
PN2450
MR BORENSTEIN: No. That's right, your Honour. But the point that I was going to make was that the clauses may have been interpreted by the parties to the instrument as being clauses which although they are framed in the way in which they are, are intended to apply to the employees who either are or are eligible to be members of the union which would mean the people who work in the factory and who are covered by the EBA. Now, I don’t know whether that’s right or not, your Honour, because this is a point that’s raised at the end of the case and without any prior notice so we weren’t in a position to explore it.
PN2451
But whatever the position of clause 7.5 we say that the other clauses certainly don’t obviously jump out as being clauses where there’s a discrimination of the kind which part 16 prohibits. The final point that I wanted to make but I was distracted, but the final point I wanted to make was - no, that’s all right, your Honour. I don’t need to make that point. So as I say, your Honour, they’re our submissions and we would ask your Honour to dismiss the application.
PN2452
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Parry?
PN2453
MR PARRY: Only briefly, your Honour.
PN2454
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN2455
MR PARRY: Just quickly dealing with on page 7 of the union’s submissions the argument about policies. The proposition about abiding by policies is dealt with in the Riverwood case and it was held to create reciprocal obligation and that’s in paragraph 106. Secondly with regard to workplace safety at present the employees at Feltex are subject to the requirements of the booklet which is provided to them and at page 9 it provides in respect of OH&S policy all employees are engaged on the understanding that they comply with the following rules and regulations and there is also a comprehensive occupational health and safety rehabilitation policy in tab 15 which sets out essentially the same obligations as are contained in the AWA.
PN2456
On page 8 there is with regard to safety protective equipment in the contracts of employment, for example, handed up today, F15, clause 12 provides essentially the same obligation about proper use and wearing of protective clothing and equipment. Confidentiality is referred to on page 9. Contracts of employment of Feltex employees have the most onerous and remarkable confidentiality provision which not only applies during the currency of the employment but thereafter and much more onerous than is contained in the AWA. As to company vehicles there are policies that are in tab 11 of the booklet which are much more onerous than those contained in the AWA and place much greater obligations on employees.
PN2457
So this deals with various observations about training and so forth. And just one other matter, your Honour. The AWA has a date in it of 31 May 2009. When that date is reached it can only be terminated on 90 days notice. So to deal with the time when the AWA is terminated is really dealing with 1 September 2009. Secondly at that time and as far in the future as possible to get it is said in the union’s submissions in paragraph 21(b) the union, the employees, will revert to an unknown classification structure. We disagree with that. We believe that when the Act is read the AFPC preserve the previous classification structure. So we disagree.
PN2458
THE SENIOR DEPUTY PRESIDENT: I’m sorry? The AFC preserves the previous classification structure?
PN2459
MR PARRY: From the 2000 Award. Now, my learned friend has given me a note as to how this works through.
PN2460
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2461
MR PARRY: And it starts with subdivision (i) division (ii) section 208 - I’m sorry. Section 208 deals with deriving preserved APCSs from pre reform wage instruments and, your Honour, our understanding of this is that the rates and classifications derived from the pre reform wage instrument which would be the 2000 Award.
PN2462
THE SENIOR DEPUTY PRESIDENT: Yes, but as to how one finds out what rates attach to that, that remains a mystery to the community generally.
PN2463
MR PARRY: Well, I certainly can’t answer that standing here, your Honour.
PN2464
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2465
MR PARRY: That’s something that really we’re dealing with in 2009.
PN2466
THE SENIOR DEPUTY PRESIDENT: Someone might have the answer.
PN2467
MR PARRY: Somebody might have the answer by then, your Honour. If your Honour pleases.
PN2468
THE SENIOR DEPUTY PRESIDENT: Yes, very well. Thank you. Well, I'll reserve my decision and adjourn now. I'll publish a decision at the earliest possible time. The only thing that remains to be said is that everyone understands everyone’s position now. There still remains now no impediment yet to the parties discussing these matters further and they’re invited to do so if they wish otherwise I will deliver a decision at the earliest possible time. I will now adjourn.
<ADJOURNED ACCORDINGLY [1.06PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
MICHELLE O'NEIL, RECALLED AND RE-AFFIRMED PN1981
CROSS-EXAMINATION BY MR PARRY, CONTINUING PN1981
RE-EXAMINATION BY MR BORENSTEIN PN2269
THE WITNESS WITHDREW PN2275
EXHIBIT #F15 BUNDLE OF DOCUMENTS, LIST OF EMPLOYEES' NAMES PN2293
EXHIBIT #F16 WRITTEN SUBMISSIONS PN2296
EXHIBIT #TCFUA9 OUTLINE OF SUBMISSIONS OF THE RESPONDENT TOGETHER WITH TABLE PN2342
EXHIBIT #TCFUA10 EXTRACT FROM MACKEN, MCCARRY & SAPPIDEEN’S LAW OF EMPLOYMENT PN2392
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