C2006/3262, Transcript of Proceedings [2006] AIRCTrans 1249 (29 November 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 16093-1

SENIOR DEPUTY PRESIDENT WATSON

C2006/3262

FELTEX AUSTRALIA PTY LTD
AND
TEXTILE, CLOTHING AND FOOTWEAR UNION OF AUSTRALIA
s.170LW pre-reform Act - Appl’n for settlement of dispute (certified agreement)
(C2006/3262)

MELBOURNE

8.39AM, FRIDAY, 10 NOVEMBER 2006

Continued from 3/11/2006

Hearing continuing

PN454

MR F PARRY: If your Honour pleases, I now appear with my learned friend
MR J SNAEDEN for the applicant.

PN455

MR H BORENSTEIN: If your Honour pleases, I now appear with
MR P ROZEN for the union.

PN456

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Yes, Mr Parry?

PN457

MR PARRY: If your Honour pleases, in accordance with the directions of the Commission made last week we have filed an outline of submissions and an affidavit unsworn of Susan Rechenberg-Dupe, a sworn affidavit of Peter Anderson, and an unsworn affidavit of Jennifer Anderson. Each of those are available for you today to answer any questions the Commission may have or any questions that might be put to them by the TCFUA. Your Honour, also there was discussion last Friday of commencement dates, and a table of commencement dates. Your Honour might recall a debate about a list of employees and commencement dates. We did provide a copy of that to the union, and that now appears as an attachment to Ms O'Neil's statement at number 34.

PN458

Your Honour, there was also advised to the Commission last week, Federal Court proceedings. There were proceedings before Marshall J on Wednesday. The upshot of those proceedings was that the substantive hearing was fixed for hearing before Jessup J in the week beginning 18 December 2006, and there have been directions made about defences and affidavits, which I don't think I need to concern your Honour with.

PN459

Your Honour might have noted from the affidavit filed by Susan Rechenberg-Dupe that there was attached to it a proposed AWA, and that was a document that is in respect of both Tottenham - there is one for Tottenham and one for Hallam, your Honour. Now, since that has been filed, on looking through that document there are some amendments. Those amendments are, firstly, spelling and format, and secondly, there are some other matters that were ambiguous or had unintended consequences, some of which were pointed out in the union's submissions we received yesterday. And I do indicate that the first time we've had any feedback from the union on the content of the proposed document was yesterday, and some of the observations were of assistance and have been taken on board by Godfrey Hirst.

PN460

And in light of that there is a further document which I propose to hand to the Commission, and I'll take the Commission through the amendments to that and explain the differences between that and the document filed on Friday. If your Honour pleases, there's two, one for Hallam and one for Tottenham-Braybrook.

PN461

MR BORENSTEIN: Your Honour, I wonder if we can have the benefit of seeing this document as well?

PN462

THE SENIOR DEPUTY PRESIDENT: I imagine so.

PN463

MR PARRY: I think that's a fair imagining.

EXHIBIT #F5 FELTEX CARPETS TOTTENHAM-BRAYBROOK AGREEMENT VERSION 3
EXHIBIT #F6 FELTEX CARPETS HALLAM AGREEMENT VERSION 3

PN464

MR PARRY: Now, your Honour, perhaps if I could - and we've put on the front page, your Honour will note, version 3, 10 November 2006. If I could take your Honour to the Tottenham exhibit F5, what we have done, and the first change appears, your Honour, on page 3. And your Honour will see in 7C next to Braybrook-Tottenham and national distribution centre (Brooklyn) - 7.4(c), I'm sorry, your Honour, on page 3. Now, there seems to have been some suggestion that employees might have been transferred to other NDCs that we're not aware of, but to make it clear that it's the Brooklyn NDC, that's a clarification matter and it's underlined. And each of the amendments I should point out are underlined, your Honour.

PN465

There is in paragraph 8.1 an amendment which is underlined which makes clear that employees will get two hours pay if they are subject to a last minute overtime call which is cancelled even if it cancelled before they start working. The next amendment is to 8.5, I think that's just a typing error which I won't take your Honour to. 9.1(c) and (d), the word shorter is redundant, has been taken out. 10.1, the word reasonably has been inserted there. There seems to have been some suggestion that the company might be able to pay other than by EFT, so reasonably has been inserted in there to address that.

PN466

11.4 is absences from work, and the clarification adds to the types of authorised leave for which payment will not be foregone, and it has added in paid maternity leave and carer's leave. It makes it clear, if it needed to be made clear I should point out, that there be no loss of pay for taking of authorised leave. Clause 12, there's a typographical change - I'm sorry, it's not 12, it's 13, on RDOs, just the word taken. 14.8, training allowance, again the changes are simply stylistic and make clear the intent of the document. 15.1, superannuation, and the provisions there make clear that payment will be made into ASF or such other fund as an employee might nominate.

PN467

There are changes to 15.2 which are stylistic. 16.7 makes clear that there's no entitlement to payment for absence coinciding with a public holiday. Whether that needs to be made clear or not, it seems obvious, but it makes clear that there's no entitlement to payment for holidays occurring within periods of unpaid leave of 10 or more days duration. There is an amendment to 17. I'm sorry, that's only in the Hallam one. There are amendments to 18.3(e) regarding sick leave, and there was an issue raised whether payment could be denied if a supervisor formed a view about the genuineness of the illness.

PN468

Now, the sick leave requirements within instruments interact with the fair pay standards, as your Honour would be aware, and there's requirements with regard to sick leave proof. So to ensure that there aren't issues with regard to that, those provisions referring to the role of the supervisor have been removed, and the effect should be that the statutory declaration would be satisfactory provided it explains why a medical certificate couldn't be obtained. Also, your Honour, the reference to the Feltex policy has been removed and replaced by subclause (e) which simply sets out the information that the statutory declaration should contain.

PN469

The next amendment, your Honour, is to 18.6, parental leave, and essentially the amendments make the parental leave provision conform to what is currently in the 2000 Textile Industry Award and, as I understand, also in the test case dealing with this matter. 18.10 has been amended. There seemed to be some suggestion that accident pay did not survive the termination of employment. That's been clarified by the amendments to 18.10. Yes, I won't press a minor typographical which I don't take your Honour to. Then there's 19.2 - I'm sorry, 20.2, payments upon redundancy. In (g) there's two changes there, your Honour. There's a typographical one in (a) on page 17 where the word first appeared, that was inconsistent with another part of the document. It should have been a second anniversary of the agreement. And the other amendment was to (g), making clear that a death between notice of termination and final date would not remove payment of benefits.

PN470

There is in 20.4 a procedure for redundancies, and there seems to have been some suggestion that a process which involves volunteers somehow reflects existing practice at Feltex, and to accommodate that there's amendments to enable a process whereby the calling of volunteers is permitted subject to other matters, subject to skills and so forth. And there is amendment to 20.5, which deals with employees who choose to leave within the notice period may apply for payment in lieu of the remainder of their notice which Feltex will consider in good faith. And there is also in 20.11 on page 19 redundancy disputes, which makes clear that an employee has an entitlement to representation through redundancy disputes and there is an obligation on the company to recognise that representation.

PN471

And clause 23 which dealt with variation of the agreement, has been removed. It's firstly the view of the purchaser is that the AWA is code compliant, and there is an argument that a provision which allows for variation or for amendment in respect of future negotiations might be prohibited content in any event. So that provision 23 has been deleted. Now, those are the amendments to that, the Tottenham AWA. The Hallam one is essentially similar, your Honour.

PN472

I think the only difference is in 17.1, which inserts a clause identical to the eight hour provisions concerning accrual calculations, making it equivalent to the Tottenham arrangements. So those are the forms of the proposed offers that Godfrey Hirst make to Feltex employees. Now, your Honour, that's all I propose saying in opening unless your Honour wants to hear something further. I would propose calling Susan Rechenberg-Dupe first, unless there's anything else your Honour wants to deal with?

PN473

THE SENIOR DEPUTY PRESIDENT: No. Mr Borenstein?

PN474

MR BORENSTEIN: Well, your Honour, we need some time to get some instructions about this. It's very difficult for us because it seems as though the application keeps being made in respect of a different offer of employment from time to time, and since we've got a new offer of employment this morning which differs from the one on which we've been working and from the one on which we were originally working, we need some time to consider what the effect of the changes are, particularly in terms of cross-examination of this first witness.

PN475

It's a real difficulty, your Honour, and it may be something that the Commission should give some consideration to, as to where one draws the line. I mean, if we cross-examine Ms Dupe and we find that she concedes various things, are we then going to be confronted at 12 o'clock with version 4, and then at 2 o'clock with version 5, depending on how the cross-examination goes or the submissions go? There has to be a line drawn, we would submit with respect, so that we know what we're dealing with and the Commission knows what it's dealing with.

PN476

This is just shifting sands, the Commission being asked to make a ruling on one thing and then another thing, and then another thing. There has to be a time at which these people commit themselves to something and stand or fall by it. Perhaps that's something we should give some consideration to. But we need some time to think about this document and how it affects the way we want to present our case, your Honour.

PN477

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Mr Parry?

PN478

MR PARRY: Well, this is really quite astounding. The first AWA was provided two weeks ago to the union with a covering letter saying anything you want to debate or know about or have concerns about, please tell us. We hear nothing. We then provide another version, we write letters to the union saying we're happy to talk, we're happy to go through the content. We then provide a document last Friday which we say on the record we're happy to talk about, we're happy to negotiate or discuss. If you've got any concerns you might have about this we will talk to you. Nothing.

PN479

Yesterday afternoon we receive some 30 pages of complaints, some which we've taken on board, others of which are totally spurious, and we'll deal with them this morning. But we've gone through the amendments that we've made. Your Honour will note the explanation of them. They're not detailed, and they address some of the concerns that have been raised by the union. So if there is to be an adjournment we are talking half an hour maximum or something like that, your Honour. It is really a bit rich to be seeking a further indulgence, number one, and being critical of us for trying our best to put something up that addresses the concern of the unions. If your Honour pleases.

PN480

THE SENIOR DEPUTY PRESIDENT: Yes. The union has prepared a table setting out the basis upon which it says the agreement offered is less favourable. That presumably is now affected by the changes accepted in effect you say by the company?

PN481

MR PARRY: In part, yes.

PN482

THE SENIOR DEPUTY PRESIDENT: They should have some opportunity to consider that, and for the purpose of cross-examination.

PN483

MR PARRY: Well, yes, your Honour. But firstly, they could have told us this two weeks ago. They choose tactically, they've made a deliberate choice to spring it on us yesterday afternoon, and then when we take on board some of the issues that they've raised they jump up and say, well, we need time. Now, as we said, we don't oppose a short adjournment. To suggest anything further than that we would strongly oppose, your Honour.

PN484

THE SENIOR DEPUTY PRESIDENT: Yes.

PN485

MR BORENSTEIN: Your Honour, we're not suggesting anything of the sort that I think Mr Parry is anticipating. We're happy to proceed today, but we need a little bit of time to think about this. And can I just correct the record, your Honour? I'm not aware that there's any obligation on us to assist our friends to formulate the offer that they want to put to the employees. We were in negotiations, it's they who started this proceeding, and it's they who formulated the AWA. We don't like the AWA, we don't want the AWA. We are not here to help them make an AWA. And so there is no criticism that can be properly directed to my client because it didn't sit down and help them formulate an AWA which we don't want anyhow.

PN486

They want the AWA, they want the tick from the Commission. They've got a high powered team of lawyers and HR people there, they should get it right. There's three times I think in the course of this matter that people from this company have said to the workers and to the union this document is no less favourable, and then all of a sudden there's another version which is perhaps more no less favourable, and now we're up to version number 3 and perhaps number 4 this afternoon. We simply want to put on the record that no criticism should be directed to the union because it hasn't helped the company formulate a document which the union doesn't want at all.

PN487

THE SENIOR DEPUTY PRESIDENT: How long did you envisage, Mr Borenstein?

PN488

MR BORENSTEIN: Your Honour, perhaps somewhere between 30 and 45 minutes. Perhaps we can let your Honour's associate know in that sort of timeframe.

PN489

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Well, I'll adjourn until 9.30, and my associate will check with you at that time.

PN490

MR BORENSTEIN: Thank you.

<SHORT ADJOURNMENT [9.02AM]
<RESUMED [9.57AM]

PN491

THE SENIOR DEPUTY PRESIDENT: Mr Parry, you propose to go to Ms Rechenberg-Dupe?

PN492

MR PARRY: If your Honour pleases, yes. In the normal course we would ask for an order for witnesses out, but I don't seek that today.

PN493

MR BORENSTEIN: I do, your Honour.

PN494

THE SENIOR DEPUTY PRESIDENT: You do?

PN495

MR PARRY: Well, if all witnesses are out of court, all witnesses are out of court.

PN496

MR BORENSTEIN: We seek an exemption in relation to Ms O'Neil, who is our instructor.

PN497

MR PARRY: That's nonsense. Only got one witness. Either all in or all out. You can't have it - there's plenty here instructing my learned friend, he doesn't need Ms O'Neil here.

PN498

THE SENIOR DEPUTY PRESIDENT: I think there's some Full Bench authority for instructors being able to be in the court.

PN499

MR PARRY: Yes, there is, and their instructor is there. And the court is full of employees.

PN500

MR BORENSTEIN: The people who are here are employees of the union. Ms O'Neil is the official of the union who gives instructions, your Honour.

PN501

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Well, I'll ask that Ms Anderson and Mr Anderson be excluded until they've given their evidence.

PN502

MR PARRY: If your Honour pleases, I call Susan Rechenberg-Dupe.

PN503

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

<SUSANE ANNE RECHENBERG-DUPE, SWORN [9.59AM]
<EXAMINATION-IN-CHIEF BY MR PARRY

PN504

MR PARRY: What's your full name and address Ms Rechenberg-Dupe?---Susan Anne Rechenberg-Dupe (address supplied).

PN505

And you are the company secretary of Godfrey Hirst?---That's correct.

PN506

And you hold other positions at Godfrey Hirst?---That's correct.

PN507

Such as?---Well, I'm officially their corporate solicitor, I'm also the person responsible for human resources within the group.

PN508

You've been involved in the preparation of an affidavit in these proceedings?
---That's correct.

PN509

Do you have a copy of that before you?---Yes, I do.

PN510

Are the contents of that true and correct?---They are.

PN511

I tender the affidavit and its contents, your Honour.

EXHIBIT #F7 AFFIDAVIT OF SUSAN RECHENBERG-DUPE WITH ATTACHMENTS

PN512

MR PARRY: Ms Rechenberg-Dupe, the attachment 1 is a deed of guarantee which is referred to in paragraph 4, and it says there an agreement was reached with the TCFUA on 13 October 2006. What form did that agreement take on
13 October 2006? How did you become aware that there was an agreement?
---Well, that was communicated between the union's solicitors and our solicitors at that stage.

PN513

Was the deed later signed by the union?---I believe so, yes.

PN514

If I could tender and hand to Ms Rechenberg-Dupe and provide to my learned friend a copy of that deed executed by the union.

EXHIBIT #F8 EXECUTED DEED

PN515

MR PARRY: Now, also attached to your affidavit, and it's an attachment to SRD3, it is a deed of confirmation of employee representation. It appears towards the end of SRD3. Do you have a copy of that?---Yes.

**** SUSANE ANNE RECHENBERG-DUPE XN MR PARRY
PN516

When is that deed proposed to be executed?---It's intended that if in fact these offers of employment are made to the employees it would be executed at that time.

PN517

And the deed only has a place for signature of Mr McKendrick and Mr Walsh. How can such a deed be in force?

PN518

MR BORENSTEIN: Well, your Honour, this is a legal question. This witness shouldn't be giving evidence about legal - - -

PN519

THE SENIOR DEPUTY PRESIDENT: Mr Parry?

PN520

MR PARRY: Well, she's a company secretary, she's a qualified lawyer.

PN521

MR BORENSTEIN: Well, she's giving expert evidence.

PN522

MR PARRY: Well, she's giving evidence about her view of the consequences of this.

PN523

THE SENIOR DEPUTY PRESIDENT: Yes, I'll allow the question?---It's similar to any form of guarantee or other similar document that a person can unilaterally give a deed in favour of others, and it will be enforceable by those other people if they're executed under seal.

PN524

MR PARRY: Now, there has been handed to the Commission today two Workplace Agreements version 3 dated 10 November, and they're exhibits F5 and F6. Do you have a copy of those before you?---I do.

PN525

And you've been involved in the preparation of those documents?---That is correct.

PN526

Now, yesterday did you receive a comparison prepared by the TCFUA?---That's correct.

PN527

And you've been through that comparison?---I have.

PN528

And have you prepared a comparison of Feltex 2004 agreements and the proposed AWA in response to that?---I have.

**** SUSANE ANNE RECHENBERG-DUPE XN MR PARRY
PN529

If I could hand to the Commission and to my learned friends a document headed Comparison of Feltex 2004 agreements and proposed AWAs.

PN530

MR BORENSTEIN: Your Honour, is there any reason why we couldn't have got this when we got F5 and F6 so we could have got instructions at the same time?

PN531

THE SENIOR DEPUTY PRESIDENT: Mr Parry?

PN532

MR PARRY: Well, probably not. I'm going to take the witness through the document and she can explain it, and we can go through it sequentially, and obviously she can be cross-examined about it.

PN533

THE SENIOR DEPUTY PRESIDENT: Yes, very well, go ahead. If anything arises, Mr Borenstein, you can raise it.

PN534

MR BORENSTEIN: Perhaps Mr Parry could indicate whether we've got any more documents coming down the bar table in the course of the morning as well.

PN535

MR PARRY: Well, I think my learned friend is on pretty thin ice about late delivery.

EXHIBIT #F9 COMPARISON OF FELTEX AGREEMENT AND PROPOSED AWA BY MS RECHENBERG-DUPE

PN536

MR PARRY: Now, Ms Rechenberg-Dupe, if we take firstly the union comparison and then your document, the first part of the union document - - -

PN537

THE SENIOR DEPUTY PRESIDENT: Sorry, Mr Parry, I need to go to the attachment to the outline do I, the TCFUA?

PN538

MR PARRY: Sorry, your Honour. Does your Honour have a copy of the comparison that the union prepared? I assume it's been filed.

PN539

THE SENIOR DEPUTY PRESIDENT: I do.

PN540

MR BORENSTEIN: It's attached to the outline.

PN541

THE SENIOR DEPUTY PRESIDENT: Attached to the outline, yes, which I can't immediately find. Just bear with me one moment. Does anyone have a spare copy of that document? It was filed, I did go through it. Yes, thank you for that.

**** SUSANE ANNE RECHENBERG-DUPE XN MR PARRY
PN542

MR PARRY: Ms Rechenberg-Dupe, the first dot point in the right hand side deals with the contract of employment provision in the AWA. The first dot point, it says that it identifies the position of the employee but this is expressly only at the start of the agreement. It says other provisions allow the employer to change the classification, location, shift of the worker which the EBA does not provide. Now, turn to your document. How do you deal with that?---Well, the EBA specifically provides for changing all of those things. It specifically provides the changes in classification, it provides for people most certainly being able to go up classifications, that's why there's a classification structure and minimum wages link to it. It clearly provides for moving of location and specifically provides for things like transfers between sites, and both the Textile Industry Award and the EBA refer to the transfers of shifts of workers.

PN543

And in your document the brackets indicate on what you base that?---That's correct.

PN544

Right. And the second dot point in the union document refers to the AWA binding an employee to any policies and procedures of Feltex and GHA applying that Feltex formulated, other provisions in the AWA make it clear that policies and procedures may change at the employer's discretion. Now, to deal with policies and procedures, your Honour perhaps might turn to Ms O'Neil's statement or affidavit and attachment MON24.

PN545

THE SENIOR DEPUTY PRESIDENT: Yes, I have that. That's the letter to Mr Anderson from Ms O'Neil?

PN546

MR PARRY: Yes. I've just handed a copy of that document to Ms Rechenberg-Dupe.

PN547

Now, this was a document sent to the receiver. Did you become aware of it on that day or soon thereafter?---I did.

PN548

And how did you become aware of that document?---The receiver forwarded a copy of that through to me.

PN549

And it requested that various policies and procedures by Godfrey Hirst be forwarded urgently to Ms O'Neil?---That's correct.

PN550

And did you attend to forwarding the GHA policies and procedures requested?
---That is correct.

**** SUSANE ANNE RECHENBERG-DUPE XN MR PARRY
PN551

And if I could hand to you marked on the outside Godfrey Hirst HR Policies. Now, does that folder contain the policies forwarded to the union that day?---So I believe. I haven't been through every single one individually, but it looks like what we forwarded through to them on that day.

PN552

And in the front of the document - I'm sorry, the front of the folder there's a number of fax sheets which have as attachments to them references to various policies that indicate that the documents were forwarded progressively throughout 27 October?---Yes.

PN553

I tender both - and I'm sure it can be done as a bundle - the affidavits - I'm sorry, the policies that are contained therein, and also the fax emails demonstrating they were so sent.

PN554

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

EXHIBIT #F10 GODFREY HIRST POLICIES AND EMAIL AND FACSIMILE DOCUMENTS

PN555

MR PARRY: Now, Ms Rechenberg-Dupe, you still have that letter I handed to you that the TCFUA had sent dated 27 October 2006?---Yes.

PN556

And on the second page it says in the second paragraph:

PN557

We cannot provide a response regarding the AWAs until we have reviewed all these documents.

PN558

Do you see that?---Yes.

PN559

Did you ever get a response regarding these documents?---No.

PN560

And I think it's in Ms O'Neil's attachments, MON27. Perhaps I can hand a copy to Ms Rechenberg-Dupe. Does your Honour have MON27?

PN561

THE SENIOR DEPUTY PRESIDENT: I do, thank you.

PN562

MR PARRY: Do you have a copy of that, Ms Rechenberg-Dupe?---Yes, I do.

PN563

And the top part of that deals with something sent on 27 October. Below that is an email that you apparently sent 27 October 2006, 5.34. It refers to the documentation forwarded and refers to those policies, and it says:

**** SUSANE ANNE RECHENBERG-DUPE XN MR PARRY
PN564

Most of these policies have been tabled for consideration and feedback by employees and the union at the Godfrey Hirst central consultative committee.

PN565

On what do you base that part of the email, where does that come from?---Well, basically all our OH&S policies are usually reviewed on a bi-annual basis. At the central consultative committee we have OH&S reports that announce those that are subject to review. We invite feedback from the employees, we say that if they wish copies of these policies we can make them available to them at times they are actually tabled, and the union is usually present or they're invited to the CCC meetings, they usually are attending them. They get forwarded minutes of those meetings.

PN566

MR BORENSTEIN: Well, your Honour, I object to this answer. The witness was asked on what basis she said that they had been considered by the consultative committee. She's now giving evidence about what usually happens rather than what did happen, and in my respectful submission that's not an answer to the question and it's not probative of the matter that my friend is seeking to prove.

PN567

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I'll allow that question and answer. I think it's a matter of submission as to what I make of it.

PN568

MR PARRY: If your Honour pleases.

PN569

In that email it also says:

PN570

Should you have any queries or wish to meet over the weekend to discuss either of the draft offers or the other documentation forwarded today please feel free to contact me.

PN571

And you give numbers, telephone numbers. Were there queries or discussions of that documentation that had been forwarded taken up over that weekend?---No, they weren't.

PN572

Or thereafter?---No.

PN573

Now, if I could take you back to the letter to the receiver. It asked for not only Godfrey Hirst policies but it also asked for Feltex policies. Now, are you aware or not of whether Feltex had policies as to the operation of the various plants that you were purchasing?---I was aware it did have policies in place.

**** SUSANE ANNE RECHENBERG-DUPE XN MR PARRY
PN574

Were you aware of whether or not the receiver forwarded policies to the union in response to that request?---I believe the receiver did forward policies.

PN575

Your Honour, there will be evidence given that the policies were so forwarded, and to expedite this matter I propose tendering the documents that were forwarded to the union evidencing the policies that were in existence at the Feltex plants, and I have a folder of those.

PN576

THE SENIOR DEPUTY PRESIDENT: Yes. Is there any objection to that course, Mr Borenstein?

PN577

MR BORENSTEIN: No, your Honour.

PN578

THE SENIOR DEPUTY PRESIDENT: Very well.

EXHIBIT #F11 FELTEX POLICIES

PN579

MR PARRY: Yes, I'll make sure that my learned friend has a spare copy. Now, your Honour, the bundle that I've handed up - - -

PN580

THE SENIOR DEPUTY PRESIDENT: That again includes email, facsimile information?

PN581

MR PARRY: It does.

PN582

THE SENIOR DEPUTY PRESIDENT: That will be included as part of the exhibit.

PN583

MR PARRY: And your Honour will note that these were all - that all the documents were forwarded to the union, but subject to this, your Honour. This is - and your Honour might go to the first page. Your Honour might note there is various policies dealing with various matters. In tab 14 there is an employee information booklet where it requires the signature of employees, and your Honour will be familiar with those matters, but there is also contained in this folder not forwarded to the union number 42. If I could take your Honour to tab 42, and there will be separate evidence that this was the practice followed. Your Honour will see in tab 42 the employment offers that were the - and the evidence will be - the practice at Feltex. And your Honour will note the existence of various provisions regarding equal opportunity, protective clothing, confidentiality and so forth.

**** SUSANE ANNE RECHENBERG-DUPE XN MR PARRY
PN584

Now, Ms Rechenberg-Dupe, the policies that are before the Commission, you're aware they were provided to the union. Did you receive any questions from the union about the content of those policies?---No, I didn't. Only this question that was contained in this email that asked me about whether they'd apply to any future, and I responded to that email on 28 October in writing.

PN585

What was your response?---I don't have a copy of my actual response here, but I basically did indicate that the current Feltex Australia policies wouldn't be continuing to apply to future - in the future to Feltex Carpets when it actually took over the employment of the employees.

PN586

Yes, all right. Now, to return to the comparisons, your comparison, and in the first box in your comparison you say:

PN587

Implied condition of existing employment, that employees comply with policies and procedures of employer.

PN588

That's your response to the issue raised by Ms O'Neil?---That's correct.

PN589

The next item is time recording, and their argument is that the EBA requires employees to be responsible for recording work commencement and ceasing times, and the EBA doesn't contain this obligation. Do you have any understanding of the current practice at Feltex operations?---Currently these employees are clocking on and off, and I believe that's no change to current practice. I'd also note the requirements of the Workplace Relations Act which actually require recording of the start and finish times of these employees.

PN590

The next item in the comparison is variation of agreement. Now, the AWA handed up today deletes the provision of that variation?---That's correct.

PN591

And you express a view there that the AWA complies with the national code of practice?---That's correct.

PN592

20, the next item is the provision about OHS, and the union say that the obligations imposed by the AWA that don't exist in the EBA. What do you say to that?---I would say that the majority of those obligations there are actual legal obligation under the OH&S Act, and to that degree we're not imposing any additional obligations on the employees than that they already are at law.

PN593

Now, the next item on the second page, it then deals with policies and procedures. Do you make the same observations that you make above with regard to that?
---That's correct.

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PN594

The next one concerns confidentiality. When you refer to common law obligations what are you referring there?---Well, they're using terminology out of their own, but I believe that that is what would already be implied and to their terms and conditions of employment. I also note that I've also since then seen the letter of offer that Feltex has been providing to its employees that has quite a stringent confidentiality clause in that too.

PN595

Yes. Now, the next item is suspension of employment. The AWA allows for suspension of employment on pay. What belief do you have about that?---I also note the suspension is for a reasonable period of time, and we believe this provision is reasonable within the existing rights. We'd note that often when this is utilised in fact they're issues like EO issues where it is essential if you're going to have a fair investigation that the employee not be present on site.

PN596

Now, the next item concerns the proof of birth, and the AWA allows Feltex to demand proof of birth date, entry permit and capacity to work in Australia. As that doesn't appear in the EBA, why do you seek that in the AWA?---We believe there are offences are far as hiring illegal aliens, and we believe it's reasonable in fact to be requiring that proof if we've got problems.

PN597

The next item deals with the operation of company vehicles in the AWA, and it refers to the responsibility of a driver for any infringements. Why do you say that's a necessary provision?---Well, we believe there's a legal obligation to comply with road laws, and we'd note that traffic infringements are generally the obligation of the driver in any case, so we don't think that's imposing any additional obligation not already there.

PN598

The next one is company tools and property. That is a provision that makes employees responsible for appropriate use of all tools. The union say that the EBA contains no similar provision. Why do you say that's an appropriate provision?---Well, I think part of it is that it remains our property, which I think would currently be the legal situation, and the fact that we expect them to care for them and use them appropriately I think would be currently an implied obligation and not in excess of their current obligations.

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PN599

The next item deals with smoke free workplace. It says, the union says the AWA purports to make the entire site smoke free, and it says the EBA does not have this provision. And what do you say to that?---Well, in fact the actual - they re-read the actual covenant. It talks about restrictions on smoking apply in all work areas. It's not making the site entirely smoke free. This is an OH&S requirement, that you're not allowed to have smoking within work areas, and I believe the current Feltex policies reflect what is also the Godfrey Hirst policy, which is having designated smoking areas in which people can actually smoke, and those areas must satisfy WorkCover requirements, ie, have got to be open and not enclosed, and those sorts of requirements.

PN600

THE SENIOR DEPUTY PRESIDENT: Well, what does upon the site generally in clause 26H mean?---Pardon?

PN601

Restrictions on smoking apply upon the site generally, that's in clause 26H of the version 3, Tottenham-Braybrook agreement?---Yes, I've got that here. Well, what they're saying is that you've got designated smoking areas, you're not allowed to smoke in any work areas at all because that's illegal under the WorkCover legislation, and even when you're outside the actual work areas but inside the factories there's still only certain areas in which you can smoke. But you just can't walk anywhere that's outside a work area and smoke either. There are proper designated areas in which smoking is permitted.

PN602

But doesn't upon the site generally suggest no smoking upon the site at all?---No. Saying restrictions on smoking, not that it's banned, and the restrictions on them that you've got to smoke within the designated areas.

PN603

Well, employee agrees to abide by these restrictions being - I see. So the reference there is to the restrictions on smoking which precede reference to work areas and sites?---That's correct.

PN604

Yes, very well?---We're not saying it's banned.

PN605

MR PARRY: The next item in the union document refers to preventative maintenance, and it says - - -

PN606

MR BORENSTEIN: Your Honour, we don't press that.

PN607

MR PARRY: Now, over the page on page 3 of the union document it refers to the contract of employment and it refers to the AWA eliminating the operation of the TIA 94 and TIA 2000, and it then says it expressly excludes or modifies all or part of protected award conditions including. And what do you say to that?
---Well, I'd have to say having gone through the rest of this document I don't believe that they really substantiate the allegation that's excluding or modifying all those particular items that they refer to there. We have sought in this document to reflect those as clearly as we can.

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PN608

And the next item refers to parties bound, and that refers to the EBA and being collectively negotiated and applied collectively. It also refers to the rights of an employee to be represented under the AWA. Now, what do you say to the development of the AWA that's already before the Commission?---Well, we have based that AWA largely upon the existing collective agreement and the awards, and to that degree we believe that it hasn't just been something that we've plucked out of the air. In fact we believe it is largely based on what was originally collective in negotiated agreement, and insofar as the representation rights this document specifically provides four rights of representation, of which you've got examples there about the consultation clauses, the dispute resolution clauses. So we have provided for employees to have the opportunity for representation clearly within it.

PN609

The next item, introduction, deals with statements of mutual intention that appear within the EBA, and the reference that there is no obligation in the AWA generally to open communication between the parties or for the prompt resolution of disputes. What do you say to that?---Well, I would note that clause - I think it's clause 21 in there, has clear consultation obligations insofar as if there's anything of significant change or anything that might be redundancy type situation. There's also clearly a dispute resolution clause within this agreement, so I do believe that has been addressed within it.

PN610

And the dispute resolution clause allows for arbitration by the Australian Industrial Relations Commission?---That is correct.

PN611

The next item deals with period of operation on page 4. There's reference there to commitments to collectively negotiate into the future. There's also reference to the EBA remaining in operation after its nominal expiry date until another agreement is negotiated. You refer to the EBA terminating 12 months from the transmission of business. Is that something you take from the Workplace Relations Act?---I believe that is the case, yes.

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PN612

Right. The next item deals with wage increases, and the union here have put in some figures and some percentages about the increases over a particular period of time. What do you say to their calculations and their presentation of this material?---I think it's quite misleading in that it fails to take into account that as of 1 September, which is only two months ago, these employees received a four per cent pay increase. And so when you start giving them two per cent in June, in fact that four per cent has gone - they're actually getting another pay increase within the first 12 months from their pay increase. So in fact if you sort of take into account the pay increase that's just gone on 1 September, in fact over the next just under three years you're looking at an average of 4.63 per cent. So in fact we think it's very misleading in the way that they've tried to just forget about the fact that they've only just - they're only just two months out of a pay increase at the moment, which is quite a sizable pay increase.

PN613

Now, the third dot point deals with the AWA making the wage increase being inclusive of allowances and penalties, and the EBA rates being exclusive, and there seems to be some suggestion there that there's some impact arising from this. What do you say to that?---Well, I'm unaware of that. We've gone to great care here, that we believe the AWA currently provides for all allowances that are presently being paid on the site, and so effectively you're basically getting your wage rate as per the AWA plus all current existing allowances, which we'd say then the EBA plus all existing allowances is exactly the same outcome.

PN614

Now, the next major item deals with clause 15.2 of the AWA, and it refers to commitment to discussions that the EBA provides which involves TCFUA. What does the various documents, including the deeds, how do they deal with these matters of discussions with the union?---At the moment I believe that is prohibited content so it can't go in the AWA, however we have provided provision for a similar provision in the deed of confirmation of employee rights.

PN615

And they in the second dot point make an issue about the provision of annual audited accounts by the employer and information in the form of attachment G. What do you say to those sort of obligations?---Well, this was discussed at some length at the time we negotiated the deed of guarantee with the union. The deed of guarantee at that stage wanted both the guarantee and the financial accounts. At that stage we indicated that we believed in the current situation they didn't have a guarantee of the parent company of Feltex Australia, and that we saw that we were offering the guarantee in lieu of that actual obligation, and as a result of the negotiations in fact - originally one of the draft deed of guarantee had that requirement to provide those audited accounts. In the final guarantee that in fact had been deleted on the basis that had been the negotiated outcome.

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PN616

Does your union have - sorry, does your company Godfrey Hirst have other deeds with the TCFUA?---That is correct.

PN617

Is there one involving Godfrey Hirst Australia and Benalla Spinners?---That's correct.

PN618

If I could hand you this document, and also hand a copy to the Commission.

EXHIBIT #F12 2004 DEED BETWEEN BENALLA SPINNERS, GODFREY HIRST AND TCFUA

PN619

MR PARRY: Now, were you involved in the negotiation of this deed, Ms Rechenberg-Dupe?---I was.

PN620

Is it still in force?---It is.

PN621

To return to the comparison chart, there is reference there to, in the third dot point, to the additional two per cent into superannuation for each employee until the employer agrees with TCFUA on acceptable scheme to protect entitlements. What the AWA removes is the obligation on the employer to obtain the agreement of the TCFUA in order to undertake an alternative scheme. How does the AWA deal with that?---Well, the AWA actually provides you've got to obtain the agreement of the majority of employees, of which we believe it was the way to get the same intent given the fact that to refer to the union we believe was going to be prohibited content, and given we thought the union would be - we assumed would reflect the opinions of its members. We believed that was a fair way of reflecting what we believed was the intent of the original clause.

PN622

And the Superannuation Guarantee Act makes a provision with regard to that. Are you familiar with that Act?---Yes, I am.

PN623

Why?---Because last night - because I had concerns about complying funds. I looked at and re-clarified clause 15.1 to make it very clear that where in fact it - when you're talking about a complying fund you're talking about a fund selected by the employee under the superannuation choice legislation, which we thought was fairly clear in the original clause, but clearly had caused some confusion. And clearly in that now - in 15.1 now it makes it clear it's the choice of the employee as provided for under superannuation choice provisions, the Superannuation Guarantee Administration Act.

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PN624

If we could move on to the next item which is at the bottom of page 5, productivity improvements. And you've referred there to training and time recording. The comment there by the union is the EBA contains a commitment to multi skill and to provide job variety and new skills, career opportunities and job satisfaction. It said the AWA contains no comparable commitment. What's your response to that observation?---Generally within clause 9 we believe that if anything, we'd say most of them are part of the normal duties, and if anything we've reduced potentially the obligations, depending on whether you believe it's part of their normal duties or not. We're providing for training quite clearly within that, and the commitment to train people as well, which I think is probably the key essential part of that.

PN625

And you - - -?---I think I covered the second dot point.

PN626

Sorry, it says this also relates to clause 14.9. I think you said clause 9?---Clause 9 of the actual enterprise agreement, that's what I'm talking about, we'll be discussing, yes.

PN627

Yes. Now, the next deals with personal leave and illnesses, and this deals with the - there's firstly the issue about a statutory declaration and the reference to the disclosure to the supervisor and substantiation to the supervisor of the genuineness of the information. That's been amended overnight?---That's correct.

PN628

And could you tell the Commission the substance of the amendments?---Largely because we tested it against the Australian Fair Pay standard which - you see, this has been half the trouble and why we're wanting at this stage to address these issues, because as you've started to put the Australian Fair Pay standard over the top of what were all these existing documents, which is what would have happened at the expiration of the 12 months transmission, it made things very, very difficult to work out just what was most favourable and everything else. But upon our reading of it we believe that now we are complying with what is the - it's a reflection of a cross over between the clause 18 point so the - it's clause 10 is the one in the actual enterprise agreement that provides for statutory declarations, and the Australian Fair Pay standard that also restricts what you can or can't have within those statutory declarations, and now it's basically following the standard.

PN629

Now, the third dot point deals with the AWA precluding an employee from returning to work during a period of sick leave on a medical certificate, and it said that actively discourages employees from returning to work even if their health has improved. Why is the AWA drafted as it is?---Well, we believe it's very much an OH&S issue. If an employee is well enough to return to work we'll just ask them to get a clearance, and if they go to the doctor and the doctor says they're fine to return to work, no worries, but otherwise we are concerned for their own health in fact if a doctor has deemed them not to be fit for work if they seek to return early. There can also be risks with things like, they might be on medication and things like that as well that can also be a risk in a factory environment.

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PN630

Now, the fourth dot point deals with another agreement, being the Braybrook-North Sunshine Sick Leave Payment Upon Termination Agreement 1996, and it refers to employees who formerly worked at the North Sunshine, Berkshire Road and Braybrook site prior to this transmission to other companies and subsequently Feltex. It says there that there were certain provisions in that about the payment out of sick leave, and the TCFUA have said there over the page that it understands that there remain employees currently employed by Feltex Australia to whom this provision still applies. Are you aware, or have you made inquiries about whether there are such employees that remain employed?---Well, I've made inquiries of the HR managers of the current payroll personnel and the former payroll personnel, and everybody believes currently there are no employees still with entitlements still under that. If the union are aware of people though we're more than happy to look at them and make provision for that, if in fact that is the case. But I've been unable to locate any details of any of them.

PN631

The next dot point deals with:

PN632

The notification of absence shall occur prior to the commencement of work or as soon as reasonably practicable and during the ordinary hours of the first day or shift of such absence or within 24 hours of the commencement of the absence if that is not practicable.

PN633

You've changed the wording. Why have you done that?---I don't see that the existing wording of the EBA in any way adds anything to what we've currently got there.

PN634

The next item is clause 13 in the EBA about rostered days off, and it says:

PN635

The EBA provides a quarterly calendar of RDOs. The AWA provides for RDO roster of a minimum of one month in advance, where possible two months.

PN636

And it's said employees have more notice of the schedule under the EBA. What do you say to that?---Well, there's only requirement for one month's notice of the quarterly calendar, so if you're comparing that to a situation where you're trying to give where possible two months, in fact they're very, very similar as far as the majority of notice you'll be getting for RDOs, because on that case you'd only be getting, for at least four RDOs a year you'd only be getting one month's notice.

PN637

When you say provides for a minimum of one month - - -?---That's the
enterprise - - -

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PN638

You're referring to the EBA?---The actual enterprise agreement, clause 11(c) it is.

PN639

Yes. And the next dot point deals with RDOs in particular areas, Tufting Braybrook and NDC. Is there conflict, is there meant to be conflict or changing of position with regard to the AWA there?---Well, to me I can't pick any great difference between what's currently in the AWA and the EBA as far as what they provide for.

PN640

The next dot point deals with the EBA providing that RDOs are taken on a common day or rostered Monday or Friday in line with a quarterly calendar. It's said the AWA weakens this certainty by allowing RDOs to have to be taken on another day. How does the AWA deal with this taking of RDOs?---Well, it is largely focusing too on Monday or Fridays. It does provide that exceptional circumstances which, I'll be honest, at times if we do end of year stock takes we occasionally have RDOs on the 30th to allow us to do a stock take, which I don't believe is unreasonable. We also - there is reference also made there provisionally for things like staggering of RDOs, which isn't our practice, but these are the sort of things flexibility wise that we believe - but again, even if they're staggered we're still making sure people get their share of Mondays and Fridays.

PN641

And the next category is transfer of shift. This refers to the involvement of the corporate consultative committee under the EBA. Are you aware of whether there is in operation at present a corporate consultative committee at Feltex?---I have been advised that no such committee has currently been operative for an extended length of time.

PN642

And it refers to changing shifts on a certain period of notice. The AWA deals with - you've dealt with this in dot point - I'm sorry, dealing with 12.3, you say it's more advantageous as it sets out a clear and transparent process. Why do you say that?---Well, I'd say initially when you're talking about temporary transfers which are on two days notice, currently under the Textile Industry Award you're entitled to transfer shift on two days notice or even quicker if you pay a penalty. Under this agreement as well, if it's less than 12 weeks transfer of shift and you're going to a lower shift loading, in fact you pay the higher shift loading for the entire 12 weeks or whatever the length of time is, which is no provision for anything of that nature currently under the Textile Industry Award. If it's a permanent transfer it sets out quite a clear procedure to be followed which takes into account employees' personal circumstances. It gives them at least two weeks' notice which is well in excess of that under the award, and also gives them the opportunity to actually dispute that to the dispute resolution process if they don't feel they've been properly dealt with. It also provides that in fact that they're going to a reduced loading, the old loading will continue for four weeks, which again there's no such provision under the current EBA or under the award. So I believe it's a much more favourable provision than what's currently the existing situation.

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PN643

The next item is hours of work, and this refers to the alteration of the usual starting and finishing times, and the requirement that the employer gives seven days notice to the shop steward and the union, or so the union say here. You have dealt with that in the first dot point there where you refer to 18(e). 18(e) is from the 1994 award?---That's correct. And it - - -

PN644

I'm sorry, go on?---And it's providing that it's only - that in fact you give notice to the shop steward or a union representative, so clearly it doesn't require mandatory notice to the union.

PN645

And - - -?---And as far as the unilaterally alteration, in fact that is only a notice requirement. There isn't any requirement for consultation on mutual agreement as far as that actual clause 18(e) provides.

PN646

The next dot point deals with the EBA containing specific enterprise arrangements applying to NDC shipping and receiving at Tottenham, and it said the AWA removes these. What do you say to that?---We're talking about a paid 20 minute crib break which, it is a two shift operation, so under clause 13 - so under the actual - which I think it's 9.1, which it's the meal breaks under the actual draft AWA, in fact it provides for 20 minute paid crib breaks, so to me there's no difference under the AWA or under the certified agreement, it's not removing anything.

PN647

The third dot point deals with the organisation of the 38 hour week, how the 38 hour week is to be organised. And I think this is one of those clauses that go back to the introduction of the 38 hour week, providing for in plant discussions and agreement and ongoing review. How does the AWA deal with this?---Well, that is providing for only one model, and Feltex Carpets is willing to proceed on it based on one model. In fact if we wanted to change that we'd have to go out and renegotiate and we face that fact. We don't see any way the employees themselves are disadvantaged as a result.

PN648

And the fourth dot point deals with the AWA makes not provision in relation to seven day continuous shift workers, and fails to provide the employee - will not introduce seven day continuous shift arrangements. Does the AWA deal with seven day continuous shift workers?---Well, basically it's impossible under the AWA because the AWA provides you can only do ordinary hours of work. They can only do ordinary hours of work from Monday to Friday, so it's impossible to actually do a seven day schedule within the current. It also provides for a maximum shift length of 10 hours. So based upon them being within the AWA and then unable to be varied, there's no way known you could ever use this AWA to implement a seven day shift.

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PN649

Is there any intention to introduce a seven day shift?---No.

PN650

There is also in the next dot point referring to the requirement to work overtime, and the refusal to work overtime, where it could result in the employee working hours which are unreasonable, you refer there to section 226, I think it's (1) of the Workplace Relations Act. Your dot point says it contains more stringent tests. Why do you say that?---Well, if you go through, 226(4) actually contains the factors you take into account, which are much more comprehensive than what is actually currently in either the '94 award or the 2000 award. So we would again say that we believe that this provision is one that's more favourable than if you just looked at the '94 award.

PN651

The next item deals with annual leave shutdown, and there's reference there to the AWA providing annual leave and being in accordance with clause 30 of the award, and it to be for a period of 15 consecutive days. The AWA deals with this, the shutdown will be 14 days, it gives Feltex the capacity to unilaterally override that in case of exceptional operational circumstances or by agreement. You say that it says there the potential for employee vote on this issue could result in indirect discrimination against employees with family responsibilities. What do you say to that?---Well, probably we observe that the Textile Industry Award currently provides for a ballot system over the selection of periods for annual leave in any case, which is a model we use at Godfrey Hirst. So I'm a little bit uncertain as to exactly why they believe a ballot situation on deciding when annual leave should be taken is in fact indirect discrimination. So I'm a little bit - I just don't quite understand that one.

PN652

And the second shut down to be over Easter. The AWA also provides for a secret ballot of employees there. Why is that in there?---Well, I've actually followed the model in the '94 award at this stage, which at the moment that your - my understanding currently is Feltex runs three shut downs, which technically doesn't fall within the Textile Industry Award '94 model at all. But these are things that, I will be honest, as they come within part of Godfrey Hirst, because we are vertically integrated we do require some coordination between leave at our various plants, and so this is something that we may need to be reviewing, because if we can't feed them with yarn at certain times, or things like that, it may compromise their ability to be actually operating when other plants aren't operating within the group.

PN653

Now, the next dot point refers to the shut down clause being subject to 236(5) of the Workplace Relations Act, about employees taking annual leave. Why have you made that reference in the AWA?---That's because under that you cannot make an employee take annual leave during a shut down if they haven't accrued sufficient annual leave. So whereas under the current Textile Industry Award it provides that you can make an employee who has insufficient leave accrual basically be stood down without pay during the period of the shut down. Under the Workplace Relations Act you can no longer do that. So in fact we'd say that the Workplace Relations Act is arguably - quotes more favourable, in that you can't require a person to take the shut down as annual leave, as unpaid annual leave basically.

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PN654

And you've adopted the more favourable construction there ahead of the award?
---It would be illegal to make them take annual leave when in fact they didn't have sufficient accruals.

PN655

The next dot point, the fourth dot point deals with the block, taking in a block of mutually convenient time during a particular period. And there's some comparison sought to be drawn between the EBA and the AWA there. What do you say to that?---Well, probably the model that we've taken in the AWA is based upon the Workplace Relations Act, which is annual leave being taken at the initiative of the employee. And we'd note that the - I think it's clause 18.1, if I get it in front of me - it provides very clear the employee shall apply for leave, and that we shall approve it based upon our operational requirements, which to me that is mutual agreement. If you got an employee wanting leave and if it fits in with what we want we agree to it, which I don't see how that's anything else but mutual agreement. As far as the EBA it currently would allow accumulation up to 25 days. The Workplace Relations Act now allows employees to accumulate up to 30 days, and then it has very close restrictions on the right of employees to require that leave to be taken. You can only make them take up to two weeks of that leave. Under the Textile Industry Award, which I'd have to assume the enterprise agreement would fall back on, in fact once you've had an accrual that's nine months past it's date that it's accrued, which is accruing annually in arrears, you can in fact make them take the whole lot of it on four months notice. So we'd say generally we believe probably the Australian Fair Pay standard is actually more favourable to the employees than the current arrangements under the enterprise agreement.

PN656

Now, the next dot point refers to the combined effect of the AWA annual leave clause, is that there is no mandatory minimum period of annual leave to which employees are entitled. There are no minimum number of periods. There is complete flexibility to the employer to schedule shut downs, and where there are no shut downs occurring in the year annual leave will be taken at Feltex' absolute discretion. What do you say to those sort of observations?---Well, as far as the last one, I don't understand how is it annual leave would be taken at our absolute discretion, because at the end of the day we have no right to require people to take annual leave other than under the Workplace Relations Act, which is quite restricted as far as that is actually what it provides. There is quite a clear procedure as far as the scheduling of the shut downs, you've got the eight weeks notice, you've got the longer ones at Christmas, and the other two will be voted on. The second one will be voted on by the employees who actually pick the timing of them. And as far as the minimum periods of annual leave, the minimum numbers of periods, we note that under the Workplace Relations Act it actually provides that there isn't supposed to be minimum or maximums. And so it's been one of the issues of just how you actually make the Textile Industry Award fit in with currently the Australian Fair Pay standards. We don't believe any of that has an effect, potential effect on the employees that would be any less favourable.

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PN657

The next dot point deals with cashing out of annual leave. That's prohibited in the EBA, but the AWA allows it as an option, and it's said there it should not be encouraged for various reasons. What do you say about cashing out of annual leave?---Well, it's only an option if the employee so chooses to do it, and it's probably something that at Godfrey Hirst we get regularly, have employees approach us that are looking at that option, and we've just got to say no to them. So ask for something that we'd say probably when those employees do at times want to exercise that option.

PN658

The next dot point deals with seven day shift workers. You don't have any of those and don't intend to have any?---No.

PN659

When I say you I mean Feltex?---Feltex Carpets, yes.

PN660

Re rate of pay for annual leave, and this deals with the ordinary rate of pay for annual leave and the additional payments to be included. What are people under your AWA to be paid for with regard to annual leave? Is there to be a change?
---We don't believe there's any change at all. Currently the intention is that there is a system of over award payments going on. The intention is that the weekly wage that would be specified within the AWA would be inclusive of any over award payments they're currently in receipt of. Those over award payments will in due course be subject to all the pay increases, so that the increase will actually occur on both the award payment and the over award payment. So on that basis, given that you're paying them their normal weekly wage plus a loading, in fact they're getting their over award payment and they're actually getting the holiday loading on the over award payment as well as the award payment, and there are no bonuses being paid within the site.

PN661

Right. Now, the next item is 18.1, annual leave, and this deals with the NDC:

PN662

The EBA provides that the NDC warehouse will only close for public holidays over the Christmas period. Employees will continue to have minimal period of annual leave during this time with the remainder being taken at a mutually convenient time.

PN663

The AWA removes these specific enterprise arrangements for NDC. What will deal with NDC working of annual leave?---We believe the current provisions in the AWA, there's no need for any specific provision for the national distribution centre. As I discussed by mutually convenient time, the employee applies, and if it fits in with the company we approve it, which is a mutually convenient time.

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PN664

The next item is casual employment, and it refers to the EBA containing comprehensive protections for casual employees, and the AWA is making no provision for casual employment. Why not?---Because the current employees who we're making offers to are permanent employees, and the ones we're asking the Commission to consider here today as far as their entitlements.

PN665

And the next item deals with the EBA containing comprehensive protections for part time employees, and the AWA is offered on the basis of full time employment. Are there part time employees that are in the pool of current employees at Feltex?---I'm advised there aren't any part time employees.

PN666

The next item deals with termination by notice, and that's providing for a qualifying period, the EBA providing for a qualifying period of three months with an entitlement to - yes, with an entitlement. And it refers to a qualifying period of employment. I think it's dealing with a probationary period. Are there any probationary periods in the current pool of Feltex employees?---There aren't, there are not.

PN667

The next item deals with transfer between sites. The EBA containing an induction training period for transfers between departments, and it said the AWA does not provide for this. How does the AWA deal with, firstly, training?---Well, clause 14.9 provides for training as required, so I think it's very clear that the company is committed to and would most certainly be undertaking training, and that's our obligation.

PN668

Now, what about permanent transfers and the resolution of those, how has the EBA dealt with that?---Well, I would note that the current provision in clause 19 of the enterprise agreement provides for any site, thus this would also include Hallam, which, for the workers at Tottenham and Braybrook and the national distribution centre at Brooklyn, is the other side of Melbourne. We've in fact deleted the reference to Hallam because we believe that that would be unrealistic to expect them to be transferred over to Hallam, so we believe that's actually to their benefit, reducing the potential transfer to Hallam. And even though I'd say that this 19.4(b) refers to the mutual agreement, it also refers that if you don't reach agreement you go to the dispute resolution procedure.

PN669

So very clearly it is intending that if you don’t reach agreement you can then go to the dispute resolution procedure, and even employees who may not be agreeing, may be required to go. In this current one it’s just the way we worded it that we’ve basically provided that the company can nominate that they go, but we still retain the right of the employee to dispute that and that most certainly we’d say that the outcome is the exactly the same, but there might slight change in the actual wording.

**** SUSANE ANNE RECHENBERG-DUPE XN MR PARRY
PN670

There’s reference to NDC sites not ion the union document, not limited to Melbourne, that’s been amended to make clear that that’s the NDC site at Brooklyn?---I’ve just lost my spot, 19.

PN671

I’m sorry I’m looking at page 12, top of the union document?---Yes, that’s fine, yes.

PN672

So that’s been amended now in the updated AWA?---Yes, that’s correct.

PN673

The next dot point deals with the process for selecting employees for temporary transfer including calling for volunteers and having casuals and employees selected first and the AWA provides that Feltex can require employees to transfer with no requirement to go through a selection process. What do you say about that?---I’ll just grab 7.4 – 7.4 does still ask for volunteers, but they seem to have left that out in their sort of description as far as the actual operation of 7.4. We note that also provides specifically taking into account personal and family issues. It isn’t at all referred to in the existing clause which we tend to find often is a lot more important to employees at times, or as often as the most important driver. Generally we would say that given that this right of permanent transfer is only when there’s labour excess in one location, casuals are used on these sites when there’s a shortfall in labour. We don’t believe you’d have a situation where there was excess labour and casuals were still there because we consider, that casuals wouldn’t be there if you had excess labour, they would always moved first or you just wouldn’t have them at that site because you wouldn’t have a casual there if you had excess labour. So we believe that is unnecessarily referring to the casuals. We also just note there that that the employees also dispute the decision so effectively it is by mutual agreement. So we believe what we’ve currently got there is a clearer more precise easier understood, I believe than what is currently the procedure set out in the enterprise agreement that is quite challenging to actually try to understand it.

PN674

THE SENIOR DEPUTY PRESIDENT: Ms Rechenberg-Dupe, you answered another question a minute ago as to the practicality of certain matters are no longer required or aren’t required as a matter of practicality. It seems to be a concern that is marked by the union and its employees of the removal of certain protections which might arise in particular circumstances is of concern. Is there any difficulty in that sort of circumstance of maintaining those protections for the mutual well being of the employees?---Which protections are you talking about?

**** SUSANE ANNE RECHENBERG-DUPE XN MR PARRY
PN675

Such as the casuals you say that won’t arise?---I’ve got no problems if they want – that is as I said its the sort of situation where because of the nature of the way we use casuals, and I presume Feltex use them the same way, is that basically they are seen as excess labour, you always use your permanent labour first and you wouldn’t have a casual there in fact, if you had excess labour, but something like that wouldn’t be of great concern to us most certainly not.

PN676

Yes, very well?---I think it would make you feel better.

PN677

MR PARRY: I think your Honour where it refers to calling, there’s some suggestion in that dot point, that the EBA provides a process indeed calling for volunteers and your Honour might note in clause 7(c) of the AWA.

PN678

THE SENIOR DEPUTY PRESIDENT: 7.4(c)?

PN679

MR PARRY: Yes, I’m sorry your Honour 7.4(c) and that refers to asking for volunteers and then dealing with the situation where there are insufficient volunteers and the factors that are to be taken into account. So we would say that the union’s criticism there, or the suggestion isn’t founded in fact in the document.

PN680

Now the next dot point deals with the EBA provides that where an employee returns to their original workplace they will be provided with a position and of transfer wherever possible and there’s a reference to 19.3(f) and it says the AWA does not contain this commitment. What do you say to that?---In fact it does, it is actually specifically provided in 7.4(c)(i)(b), it’s in brackets in the third and fourth line of that particular paragraph it is actually in there specifically.

PN681

Now the next issue deals with long service leave and it’s said the AWA provides long service leave and will be deemed to be taken in line with the employees planned roster cycling including accrual of RDOs and it’s said it is unclear what the meaning of this clause is. How do you deal with that Ms Rechenberg-Dupe?
---What that intends to mean is in fact what we do when people go on long service leave we show them as basically taking 40 hours of long service leave a week and still accruing two hours into their RDO bank. The idea being there is an RDO scheduled while they are away, they’re deemed to take that RDO and in that week they will only take 32 hours of long service and one day of RDO. The reason we do it that way is that the troubles we’ve had if an employee takes four weeks off in between an RDO and suddenly they come back and there’s an RDO, and they don’t have enough accrual to go on the RDO. So we try to keep them in the same sync as the rest of the people within their department over RDO accrual because you run the risk that if they only take 38 hours of long service leave a week, they come back, the first RDO you’d get they’d have no accrual for the eight hours of the RDO. That’s just the way we administer it generally throughout the Godfrey Hirst Group and we intend to administer it at Feltex Carpets as well. It’s just means a seamless way they go on long service and a seamless way they come back from long service.

**** SUSANE ANNE RECHENBERG-DUPE XN MR PARRY
PN682

The next dot point refers to the option of allowing employees to cash out their long service leave entitlement. It’s said there are policy reasons against allowing the cashing out. What do you say to that?---Well look it’s only at the option of the employee themselves. We are not allowing them to cash out all the long service leave. I’d note that there’s a lot of other unions that provide for schemes of this nature too because it enables things like if you are going to take 12 weeks, you’ve got 12 weeks long service, you can have a three week holiday cash in 12 weeks and have a very good three week holiday instead of 12 weeks sitting at home mowing the lawns. So the nurse’s field is obviously another industry. It hasn’t been common in textile industry and we’ve certainly got employees interested in those sorts of arrangements.

PN683

The next item deals with special pay without leave and it refers to the EBA providing this is to employees that have – sorry? Special pay without leave – well let’s have it the first way special leave without pay, that deals with the EBA making a provision about five years, over five years service with this entitlement, allowing employees to dispute the decision not to grant leave and with the AWA not having any criteria for the leave and to consider each case on the merits. Does the AWA contemplate that matter could be taken through the disputes procedure?
---Most certainly.

PN684

What’s the change? What has actually changed here with regard to the special leave without pay?---Well basically we just say that our belief is that we are proposing a simpler more straight forward procedure it isn’t limited only to employees with over five years, not limited to family requirements because often people want unpaid leave for reasons other than just straight family matters. At the moment we consider each case on its merits and I believe that’s if anything probably more favourable rather than less detrimental.

PN685

There is then the AWA introducing a clause where Feltex may grant unpaid leave at its discretion for any reason, well I suppose I’ll perhaps, there’s not much to say about that. Move on to the next one. 18.5, bereavement and compassionate leave. Firstly it says the EBA provides an entitlement to five days bereavement leave on the death of a sibling. The AWA removes this that’s the position?---We acknowledge that. We’ve prepared the AWA based on what the Godfrey Hirst current bereavement policies and it’s got five years for children, parents, spouses, it doesn’t extend to siblings.

PN686

THE SENIOR DEPUTY PRESIDENT: Five days?---Five days for siblings. They’ve got two days for siblings still.

**** SUSANE ANNE RECHENBERG-DUPE XN MR PARRY
PN687

Yes, I think you said five years, another act of generosity similar to the special pay without leave?---But I would notice generally the rest of that clause is far broader than what’s currently under the arrangements because the textile industry award limits a number of the two days leave to only deaths in Australia. Whereas the Australian fair pay standard which is the basis of the current AWA it doesn’t matter where the death is at all, and it’s actually got things like former spouses, you’ve got parents in law, after that you’ve got a much – and siblings and spouses, in fact you’ve got a broader range of people that are covered under the Australian fair pay standards than what’s currently generally under the existing certified agreement and you can have your two days compassionate leave to add to your two days on them.

PN688

MR PARRY: Yes, the next item is paid maternity leave and this refers to employees who are employed, provides entitlement to paid maternity leave for employees who are employed on 1 December 2006, no entitlement for employees not employed on that date, so but the pool of employees that are currently employed at Feltex maintain their position with regard paid maternity leave?
---That’s correct.

PN689

The next dot point in 18.7 refers to a typographical error I think. There’s reference to schedule 14, has that been corrected in the draft provided?---We just deleted the reference to schedule 14 and referred straight to the Act.

PN690

There’s reference to introducing an entitlement for Feltex to deduct any maternity payments made from employees accrued entitlements if the employee does not return for six months after the paid maternity leave, it is said there is no such entitlement in the EBA. What do you say to that difference?---However, there is an obligation for them to repay that money and we don’t believe the right to actually deduct it from, if there’s any entitlements is unreasonable and hopefully it will make it a bit more seamless than having to seek to recover it from the employee by other means.

PN691

The next item is the dispute resolution procedure. There is firstly in the first dot point a reference to fostering positive working relationship, and I think that the essence is a right for employees to have access to union representation at all times. It says the AWA removes this, what do you say to that?---Well at the moment the current dispute resolution clause, I will just get it in front of me at the moment. It doesn’t provide initially that you are supposed to seek to resolve it at the workplace level, which like the current clause is clearly indicating that it wants it – it says it should be first between the employee and the relevant supervisor or manager. Which is exactly the same as the current dispute issue resolution clause and as far as the right of representation clause 23.2 makes it very clear that the employee may appoint another person to represent them, including without limitation and unions. So we’ve got no doubt that we believe there is adequate provision for representation.

**** SUSANE ANNE RECHENBERG-DUPE XN MR PARRY
PN692

The second dot point refers to the union’s role in facilitating the dispute resolution procedure?---We note that as prohibitive content, so our hands are tied to some degree but there’s no doubt they’ve got a role in there as far as representation goes.

PN693

That similarly applies to the next dot point, both the union’s capacity to initiate a dispute on behalf of a worker. The next dot point deals with the union, the EBA says the Commission has the capacity to use it’s full range of powers to resolve a dispute, the AWA is said to restrict the powers to use which are necessary to make the arbitration effective. Is there any difference intended in that?---No, we’ve used to what it is supposed stand Industrial Relations Commission clause recommended by them. So I assume the Commission themselves have looked at this issue but I’d assume they would use the full range of powers necessary to make it effective. So I don’t believe there’s probably any conflict between those two wordings, or any likely limitations.

PN694

The next dot point deals with the compliance with the National Code of Practice for the construction industry. Is the National Code of Practice for the construction industry relevant to Feltex?---We believe it is.

PN695

Why is that?---At the moment, we do tender or at least Godfrey Hirst, does definitely tender on government work whereby we are a material supplier into government contracts. It’s probably an area where Feltex has recently been quite, because of uncertainty over it’s future, it’s commercial business has been curtailed somewhat but definitely we plan to go and quote very heavily. To date there hasn’t been a ruling as to whether a carpet supplier needs to comply. However, we do believe there is a real risk that at any time there could be a requirement that we as a material supplier with the construction industry may need to for compliance tender on those Australian government projects.

PN696

What would be the consequence if Feltex was not code compliant?---It wouldn’t be able to tender on those jobs and I’d say commercial jobs are probably some of the most profitable work that you can actually tender on.

PN697

THE SENIOR DEPUTY PRESIDENT: There is a difficulty is there not in that the code is a moving feast and as a result it’s fairly difficult to assess at any point of time whether the provision relating powers to resolve disputes being limited or being required to be consistent with the national code that may or may not disadvantage employees. I have a situation currently in the building industry where the parties are publicly expressing dismay that the goal posts keep shifting on them. Is that a problem might arise and might make it difficult to make any assessment of the effect of that sort of provision in terms of whether there is reasonable alternate employment being offered?---That is possible, but I would says that possibly one thing that even the union have agreed with us that if in fact we were required to be code compliant it should be made for us to achieve that compliance because this sort of work is an essential part of carpet manufacturer’s business. It would be precluded from and it would severely disadvantage a company. So at the end of the day I think it’s a challenge everyone is facing. But we have here tried to make a document that we believe is code compliant. However, I take on board what you say.

**** SUSANE ANNE RECHENBERG-DUPE XN MR PARRY
PN698

Thank you.

PN699

MR PARRY: Have you formed a view, made any assessments as to whether the current industrial arrangements are code compliant?---At the moment the site deed wouldn’t be the deed of employee representation.

PN700

I meant more the Feltex agreement and it’s contents?---Well currently the Feltex agreement would definitely not be code compliant.

PN701

The Feltex agreement would definitely not be code compliant.

PN702

THE SENIOR DEPUTY PRESIDENT: I suppose the site deed actually raises the very issue of the shifting sands in terms of the code and its operation. That seems to have been an area where advice back from the department is, to the parties in the building industry is changing very rapidly.

PN703

MR PARRY: Your Honour is correct it is an area of complication, but it’s an area of complication as of today under the existing instruments and it remains a complication under the proposed instruments. The evidence or the view is that it’s not code compliant now, so that’s a real issue facing Feltex at present.

PN704

Now the next dot point refers to introducing a requirement in the disputes procedure for an employee to continue to work whilst a dispute is being resolved if the capacity for Feltex to direct an employee to perform other available work and what, why is that in the AWA?---Largely that would be in line with current obligations which as I said, it is currently in the standard, the standard clauses.

PN705

The next dot point refers to requiring an employee to use the dispute resolution procedure rather than exercise any other type of enforcement rights. What do you say to that observation by the union?---Well at the moment I would be saying the current tenor behind the current enterprise agreement is that the issue resolution clause should be used in preference to other, it is a preferable way of resolving issues. So I believe that is currently within the existing intent of the current enterprise agreement.

PN706

THE SENIOR DEPUTY PRESIDENT: Is that clause the union objects to preclude taking of other actions? Exercising other legal rights?---It actually doesn’t preclude it.

**** SUSANE ANNE RECHENBERG-DUPE XN MR PARRY
PN707

At 24.4(c) isn’t it? No it’s not that one.

PN708

MR PARRY: I don’t know what the issue is?---I think 24.4(c) is an enabling clause rather than a limiting clause. There we’ve construed it to be limiting in fact it’s clearly stated that even though you’ve got the dispute resolutions clause you can still proceed with other actions.

PN709

THE SENIOR DEPUTY PRESIDENT: It might be expressed more broadly as nothing at all in the clause that precludes employees from making relevant applications they are entitled to make under law. Whether or not time is specified or otherwise.

PN710

MR PARRY: Your Honour is raising that as an option that would make it clear that there were other options and that the progression through the disputes procedure didn’t remove other rights.

PN711

THE SENIOR DEPUTY PRESIDENT: Yes.

PN712

MR PARRY: Well obviously we’ve noted your Honour’s observations so we will make submissions about that in due course and we’ll look at the – whether that’s I suppose a reasonable outcome or construction of that dispute settling clause.

PN713

THE SENIOR DEPUTY PRESIDENT: I might say I’m not entirely sure what my view is in relation to that at this point of time. It was raised as a question.

PN714

MR PARRY: Well I think my preliminary view would be that that’s a fairly typical procedure and it doesn’t preclude the taking of other rights and that’s implicit unless they are expressly excluded. If the clause said this following this procedure shall preclude you taking other legal avenues, then that would be clear. But in the absence of those clear words, you would very hard pressed to imply that you can take away legal rights.

PN715

THE SENIOR DEPUTY PRESIDENT: In which case the subclause would be redundant and unnecessary?

PN716

MR PARRY: That’s right and ultimately I think that will be our submission but we’ll obviously need to address that.

**** SUSANE ANNE RECHENBERG-DUPE XN MR PARRY
PN717

THE SENIOR DEPUTY PRESIDENT: Yes.

PN718

MR PARRY: The next dot point refers to the establishment operation of the Feltex corporate consultative committee to meet four times a year and operate on certain terms. To your understanding is there a corporate consultative committee?---I don’t believe there is currently such a committee.

PN719

Now the next dot point deals with redundancy and it provides first dot point raises the issue of where the company has made a definite decision to introduce changes and likely to have a significant impact. It is said the AWA contains no requirement to notify the - I think the Commission. You deal with the first dot point in reference to the consultation provisions?---Because in fact you’ve got a primary obligation under clause 21.1 wherever we make a definite decision to introduce a major change in production, or terminate the employment of any employees in a redundancy situations. So very clearly once you make a decision that we are going to terminate the employment of any employees in redundancy we are obliged to consult in accordance with clause 21.1. 20.11 basically is put as a bit of a fall back because it was already in the carpet which is – what’s his name – the capital carpets redundancy agreement. So just in case there was somehow some sort of redundancy situation through 21.1 we also had that as a fall back that generally all redundancies situations should be resolved under 21.1.

PN720

The second dot point deals with notification at the earliest opportunity to employees and the criticism seems to be that the AWA does not include a requirement to notify the union or engage in a selection process. You say there, there is an obligation to notify employees early as practicable and provide information?---That’s correct.

PN721

There’s reference to a selection process that has been introduced, that’s 20.4 and that deals with the calling for volunteers and then following through a process of assessing various criteria?---That’s correct and obviously specifically granting a right for employees to request translators and get a right, get an estimation of their redundancy entitlements which is essential if they are going to make an informed decision as to whether or not they are going to maybe volunteer for redundancy.

PN722

The next dot point deals with the calling for volunteers in the EBA where the equivalent skill knowledge potential is assured and it is said there that the AWA does not have a process of calling for volunteers for redundancies, that’s been addressed in the new clause 20.4?---That’s is correct.

**** SUSANE ANNE RECHENBERG-DUPE XN MR PARRY
PN723

The next dot point deals with alternative employment available at a reduced rate of pay, or materially different conditions of employment and it refers to options for transfer and it says the AWA appears to largely replicate this clause, however, it places it under the heading transfer to lower paid duties, where it in fact deals with many other transfers. Is there anything magical in the heading?---I don’t believe the heading will limit the operation of the clause.

PN724

It is also said in addition the AWA contains an additional clause which appears to be directly contradictory about the – it says where Feltex offers suitable alternative employment I think the provision itself refers to Feltex obtaining suitable alternative employment, doesn’t it?---That’s correct.

PN725

The next dot point deals with the EBA provides for the company to provide information sessions and paid time by the union, concerning TCF labour adjustment measures. It is said the AWA removes this provision, how does the AWA clause 20.7(b)(4)?---Well it actually provides for paid time information sessions with other associations which we believe would include the union.

PN726

I think it’s 20.8 now?---Yes. So that clause was drafted with the intention that the union would be another association, the nature that we see taking that role under that particular clause given issues of prohibitive content and things that seem to be a way to accommodate that provision within the AWA.

PN727

The next dot point deals with the EBA providing for severance payments of three weeks per year of service uncapped. The AWA provides for three weeks per service cap at the higher or whatever an employee’s accrual as at it says 12 months service. The 12 months service was a typographical error?---It’s supposed to be two years.

PN728

That’s been corrected in the most recent draft?---That’s correct. I believe my affidavit goes into some length as to why in fact we would look at the capping situation.

PN729

Now the next dot point deals with a payment out of pro rata long service leave after three years and it’s said the AWA provides for employees employed after
1 December pay out of long service leave after five years service. That category of employees after 1 December 2006, obviously aren’t employed by Feltex at the moment, and aren’t in the pool?---No, that’s correct.

**** SUSANE ANNE RECHENBERG-DUPE XN MR PARRY
PN730

The next item deals with the EBA provide for pay out of 17.5 per cent annual leave loading. Again, the next dot point deals with employees employed as at – sorry the next dot point deals with pay out, how does the AWA deal with a pay out of 17.5 per cent annual leave loading?---This is again one that is only limited – only talking it’s not relevant to existing employees. I think they are just saying that the 17.5 per cent loading wouldn’t be payable on if people are employed after 1 December, it wouldn’t apply to current employees.

PN731

Right?---On the other hand I would also note that because the Australian fair pay standard now provides for accrual of annual leave every four weeks, in fact you’d only ever have a very small amount of annual at any one time and it won’t be fully accrued and entitled to a leave loading. It is not relevant to this hearing but its just incidental.

PN732

The next dot point deals with the EBA providing an express commitment not to upset redundancy payments against final superannuation benefits and there’s no express commitment to this effect in the AWA, why not?---Legally I don’t believe Feltex could offset redundancy against final superannuation benefits.

PN733

The next dot point provides for the pay out of sick leave in full. It is said that the AWA provides for pay out of sick leave accrued and not taken in the previous 12 years only. Now how does, why does the AWA provide for pay out of sick leave accrued and not taken on the previous 12 years only and does that change the existing situation?---Well clause 26, I don’t actually have the award in front of me, but clause 26 of the Textile Industry Award, provides that a person can only access their - - -

PN734

Perhaps just – it might be of assistance to your Honour to just follow this quickly. It is clause 26 of the attachment A to the Textile Industry – sorry it’s attachment A to the 2004 Feltex agreement which is the Textile Award as it stood in 1994 as it stood in 1998.

PN735

THE SENIOR DEPUTY PRESIDENT: Yes?---And I don’t have a copy, can I have a copy?

PN736

MR PARRY: We have a copy for the Commission. Does your Honour want us to - - -

**** SUSANE ANNE RECHENBERG-DUPE XN MR PARRY
PN737

THE SENIOR DEPUTY PRESIDENT: It contains somewhere I’m sure in the periods.

PN738

MR PARRY: When we commenced the case - - -

PN739

THE SENIOR DEPUTY PRESIDENT: You gave me an extract.

PN740

MR PARRY: We only gave you extracts. We do have a folder here which has within it, the 2004 agreement the full award 1994, the full award 2000 the Metal Engineering Award for Capital Carpets Redundancy 1996 agreement and the Capital Carpets Enterprise Agreement 1994 and we’ve put it on double sided, or else it would be two folders, it might be of assistance to you.

PN741

THE SENIOR DEPUTY PRESIDENT: Very well, that might assist, I’ll just keep that as reference material. That document is in any case contained with
Mr Anderson’s material?

PN742

MR PARRY: Mr Anderson has yes, your Honour he has attached the agreement and the 2004.

PN743

THE SENIOR DEPUTY PRESIDENT: As an attachment A to the agreement?

PN744

MR PARRY: Yes.

PN745

THE SENIOR DEPUTY PRESIDENT: Yes, I thought I had seen that. Thank you for that Mr Parry that will assist. Yes you were going to take me quickly but carefully through this.

PN746

MR PARRY: We want to explain through Ms Rechenberg-Dupe what, where the 12 years comes from and where it doesn’t change the existing position and Ms Rechenberg-Dupe the clause in the award, is clause 26?---26(d)(i)

PN747

THE SENIOR DEPUTY PRESIDENT: Sorry would you mind repeating that
Ms Rechenberg-Dupe?---It’s 26(d)(i).

PN748

MR PARRY: Page 94 if that’s any use to you.

PN749

THE SENIOR DEPUTY PRESIDENT: That is of assistance thank you.

**** SUSANE ANNE RECHENBERG-DUPE XN MR PARRY
PN750

MR PARRY: Does your Honour see in (d)(i) the second paragraph?

PN751

THE SENIOR DEPUTY PRESIDENT: Yes.

PN752

MR PARRY: From that we will be saying that that is the limit of the accrual, that is 12 years and so Ms Rechenberg-Dupe, the AWA where it limits the pay out of sick leave accrued to previous 12 years, why does it do that?---Because if you can only accumulate it for 12 years, I believe an proper interpretation of that is your sick leave accrual which is available to you for your use as of your date of termination or redundancy, is only that accrued in the last 12 years.

PN753

The next dot point is about payments being made by EFT on the employee’s final day of employment. The AWA providing with the company, must initiate a bank transfer and post the money to the employee on the day of termination of employment. Is there anything in this that changes the position?---I can’t see it has any impact.

PN754

There is reference to the next dot point, an exemption for redundancy for employees dismissed for serious misconduct that would be an employee under notice for redundancy dismissed for serious misconduct and you express a belief with regard to that, what’s that?---Well I believe if someone is dismissed prior to the date they are actually made redundant they are clearly terminated due to misconduct not due to the actual redundancy itself.

PN755

Finally there is a reference to the AWA introducing an express exemption from redundancy where there is a transmission of business and your position is that reflects the 2000 award position?---That’s what I believe so.

PN756

The next item is retirement.

PN757

THE SENIOR DEPUTY PRESIDENT: Before you go to that Mr Parry, can I just go back to in F9 the question of Ms Dupe’s document. Clause 20.7(b)(4) the complaint for other unions seems to have been that there was previously provision in the EBA for session paid time for the union concerning TCF labour adjustment measures and the response of Ms Rechenberg-Dupe is that clause 20.7(b)(5) of the AWA commits information sessions and other associations which could include unions, or the union. Now I’m not sure whether it arises perhaps in this case, but it might in terms of certification of any document. I might draw it to your attention that I have seen advices from the Office of Employment Advocate which tend to arises in applications for secret ballots and 496 orders these days, which suggest an approach being taken that if the provision might allow paid meetings involving the unions, it would be treated as paid union leave, paid union meetings which are prohibited in any case. That seems to be the thrust of the sorts of advices that I’ve seen in that context. So it may well not really arise today but it may arise in the certification of any instrument.

**** SUSANE ANNE RECHENBERG-DUPE XN MR PARRY
PN758

MR PARRY: Your Honour we are not standing in this case we will be saying ultimately when your Honour comes to assess previous employment with employment on offer, you are looking back on not only the industrial instrument but you are looking at practise and you are looking at the contracts of employment and you are looking at the policies that apply and the employment situation in general and then you are looking at what is proposed to be put. That is, not only the industrial instruments, but how they are going to operate and how they are seen to operate.

PN759

THE SENIOR DEPUTY PRESIDENT: Yes.

PN760

MR PARRY: So whilst we note your Honour’s observations and there’s a lot of advice coming out of the OEA that my learned friend and I might agree with or might not agree with. But we were just putting our case a little bit more broadly than that.

PN761

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN762

MR PARRY: So that’s where we would be saying when Ms Rechenberg-Dupe says the way she sees and obviously she is a fairly significant manager in the new employer that should be given significant weight by your Honour.

PN763

THE SENIOR DEPUTY PRESIDENT: Yes, thank you?---Can I also add on the way, that one about the 20.5 serious misconduct, that actually reflects clause 48(k) the Textile Industry Award 1994, the one about the serious misconduct with the exemption for redundancy. That actually refers to the award provision.

PN764

MR PARRY: That’s an award provision already on your understanding?---Yes, that’s correct but it’s already subject to their current terms and conditions of employment.

PN765

Right retirement that provides for a pay out of 50 per cent of accrued sick leave upon retirement and that’s a retirement only to be given to people who resign after age 55. I suppose that contemplates whether you can retire before the age of 65.

PN766

THE SENIOR DEPUTY PRESIDENT: I’m sorry, Mr Parry, I wonder if you could stop for a moment we have some difficult. It might be – we are not recording at the moment. It might be appropriate time perhaps if we take a five minute adjournment and when we are recording more, I’ll get you to start the beginning of the question again.

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PN767

MR PARRY: As your Honour pleases.

PN768

THE SENIOR DEPUTY PRESIDENT: Yes very well.

<SHORT ADJOURNMENT [11.52AM]
<RESUMED [12.03PM]

PN769

THE SENIOR DEPUTY PRESIDENT: Mr Parry we think we have everything other than the last question, if you ask that perhaps you could start at the beginning in relation to that.

PN770

MR PARRY: Your Honour pleases. Ms Rechenberg-Dupe on retirement it is 50 per cent of accrued sick leave upon retirement and that being for employees who resign after 55 under the AWA you say it’s not relevant to existing employees, why do you say that?---At the moment we are providing full pay out of 50 per cent of sick leave to employees resigning if they are current employees offering the jobs to as part of this current AWA. But I think that date there should be 1 December not 13 November, I think it’s a typographical error.

PN771

Right?---But basically there’s no change at this stage to those existing employees whom we are now this application is in respect of.

PN772

Now the next item heat policy, it is said there that the EBA incorporates the agreed heat policy and for it to be updated by agreement. The AWA provides all parties, the policies of Feltex or Godfrey Hirst are fine and they can be changed unilaterally. Are there heat policies?---There is a heat policy at Feltex.

PN773

What about at Godfrey Hirst?---We tend to have site specific ones.

PN774

Your note says this is an OH&S issue, why is that?---Well it is something we do believe relates to OH&S issues, and you’ve got certain guidelines under work cover and things like that that you develop your policies in line with and we’d most certainly be – and I know this current heat policy there is an overly sophisticated one and I’d say it would probably be managed in a fairly similar manner.

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PN775

The next item deals with union elected representative. It provides – there is reference there to the EBA providing the union delegates can perform their role without discrimination and they have six days training and so forth and certain rights for union delegates. How has Godfrey Hirst dealt with those matters?
---Most of these are included within the deed of employee confirmation of employee rights. Like in that you’ve got clause 3.28(a) of that particular deed that provides all treated fairly and without discrimination. We’ve got provision there for union training. As far as I think they talk there about limiting the number of union officials. Union delegates are entitled to paid union training leave and then on the other hand, the numbers that we’ve put within the deed are in fact in line with clause 30 (a) of the award which actually specifies the number of shop stewards that are entitled to union training that either would be applied in any case and I believe the right of entry currently reflects very much what the current practise and clause 37 of the Textile Industry Award. So I believe generally most of those things have been covered fairly adequately within that the confirmation of employee rights.

PN776

The next in your – it is the next dot point in the union document says that the AWA doesn’t include any of these provisions. The dot point in your document is the deed would be enforceable by the employees in whose favour it is granted. That goes back to the view that you expressed at the commencement of your evidence today?---Yes, and I would also note that the deed recognises that in consideration of those employees executing the agreement, the employment agreement is in favour of them they are we would also say providing consideration for the benefit of that deed as well.

PN777

Ms Rechenberg-Dupe - - -?---All I said is if you actually read the deed itself, it actually states in it, that in consideration of each employee accepting an offer of employment with Feltex Carpet so we would also say that in addition to being there under seal there is no doubt that employees are provided consideration for that by virtue of accepting our offer of employment. It just goes to the enforceability of the deeds as well.

PN778

The next dot point refers to it describes the purported deed as containing these provisions in a watered down fashion, do you agree or not agree with that?---No, I don’t agree with that.

PN779

There is reference to the purported deed reducing employment, in the next dot point, reducing employee’s rights to have a union official present during a grievance and you I think there in your third dot point refer to the AWA provision about nominated representatives?---And grievances are handled in accordance with the dispute resolution clause and the dispute resolution clause is very clear that you have got the right to have a nominated representative which can be the union.

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PN780

There’s then reference to what the purported deed removes the entitlements for delegates and union officials that have paid meetings with workers?---Well I believe there is no real such right for paid time meetings. The provision in clause 3.2(c) of the deed is very similar to the wording that is currently in the enterprise agreement under which I’d say they are claiming that right which talks about an individual grievances, the individual employee, they meet with the authorised union official and provide a same date shift date access to the employee and the shop stewards. To me that is basically the same provision as currently what’s in the enterprise agreement.

PN781

The next dot point deals with the trade union training leave, a reduction in that from six days to five days?---I’ll admit that is one that the five’s in line with the Textile Industry Award 1994.

PN782

That is where the five comes in?---And it is six actually provided for in the enterprise agreement.

PN783

What about Godfrey Hirst do they have arrangements with regard to this?---We run five days at Godfrey Hirst on approved training leave as per the award.

PN784

The next dot point deals with reducing the right of entry of the union and implementing additional requirements prior to entry. You say the right of entry reflects clause 37 of the award and current practice. Why do you say that?---I’m not too sure exactly what they say as far as additional obligations. It may be because I’ve got including that they will actually provide notification to the HR department and entry procedures have been followed. But I would say that would be implied in any case to the existing right of entry they’ve never had a right of entry to walk on regardless so I don’t believe anything in that is cutting back what would otherwise be the mix of current practices and the clause 37 of the award.

PN785

The next part deals with the classification structure. Now could you describe to the Commission the classification structure you’ve placed in the AWA and how it relates to the classification structure in existence now at Feltex?---Well basically we’ve just copied and pasted the existing classification structure currently set out in the award into the actual AWA. There is only one slight change, when it talked about a skill level 1 and basic machine it talked about it being a sock turner, or such other machines as might be approved by the union and because it referred to the word union, we just took that out. But as there’s no skill level 1 people on the site and there was nothing in this all the material if anything it was just reducing the capacity of the company to get other things to put into skill level 1 basically its word for word the existing skill level classification.

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PN786

Now the third dot point there refers to the EBA containing a process for reviewing skill levels of employees and that’s a procedure, a translation out of the allocated after training skills and reclassification. How does clause 30 I think that is of the 1994 award does that continue to have operation?---That’s clause 30 of the certified agreement.

PN787

I’m sorry?---Yes, this process is seen, it was actually a once off and I’m assuming here that because Godfrey Hirst is a very similar provision within our certified agreements well I wasn’t subject to negotiation of this, but it is a very similar provision of what is in ours which they are basically a once off review of the skill levels. My understanding on the Feltex side over the last three years or so they’ve gradually been going to each department doing a skill level review within those departments and following what is this procedure they talk to in schedule L which schedule L was actually a translation procedure. It had been developed for when the 1984 – which was it before the 1994, I think it was the 1986 award before the 94 award, used to have seven skill levels in it.

PN788

Right?---And when they got the 1994 award they went to a five skill level. What they set out in schedule L was a procedure to translate people from basically the 86 award into the 94 award. At that stage when it appeared this was before my time, but it appears the union then decided they wanted to go through workplaces and reclassify or have another look at people’s skill levels based upon where they were at now. Mildly over the last – Jenny will be able to give you more information – over the last three years they have been gradually going through the departments and re-looking at every single person. However, it seemed to be a one off type thing which is why they’ve got a fixed date for the back pay being January 2002, what date is it?

PN789

June 2002?---Yes 1 June 2002. There seemed to be a process that goes to over a period of two or three years and I think originally it was supposed to be 12 months with the idea that when they get reclassified they are back paid to that particular date. But it seemed to have an end and my understanding on the particular site that they are at, that now only a handful of workers who have not been reclassified either by agreement or pursuant that they have been before the Commission. Some of these people have been involved as well.

PN790

Those people that are still going through that skill review process in dispute, they would be able to continue on?---That’s our intention and we’re even in this gap saying that we’ll even look at paying them the back pay even though it relates to a period of time when they’ve not even been employed by us. Because the other option would be to pursue the receiver for the money, which could be quite a long time. So we believe that’s the offering in this agreement to take over the responsibility for that back pay and settle these disputes and pay the back pay is in fact very favourable to the employees involved.

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PN791

I think that also deals with the next dot point. The second final dot point deals with once the AWA is terminated, potentially unilaterally at the end of its term the employees will revert to an unknown skill classification structure imposed by Feltex. You say that’s the same result under the AWA or the collective agreement?---Or if they are – if you have a union collective agreement you are entering now, or an AWA, that’s just a product of the Workplace Relations Act. It is not anything that is related to this particular offer.

PN792

Finally it has the EBA incorporates ancillary skill level classifications and they are described as a major interpretative tool for determining skill level classifications in relation to certain categories of employees. The AWA removes this major section of classification structure in its entirety and as it is currently understood in the industry. Now is this a reference to clause 10(f) of the 1994 award?---I’ll just check you’ve got the right – yes that’s correct.

PN793

What page?---Page 36.

PN794

Right so on page 36 there is reference to forklift driver and tow driver, pedestrian and forklift operator, high rise slacker operator, and store woman/man rates of pay and then reference to various state awards. So what the AWA has taken those out, why?---Well my investigations on the Feltex employees was as part of when they did their skills classification these were not referred to as part of that even though they’ve got for example, warehouse employees there skills were assessed against the major skills classification, not against these particular criteria. These provisions would appear to be seeking to actually incorporate the storeman and packers awards and in relation to first one, the Metal Industry awards, so in fact they are trying to incorporate provisions under other awards further into their terms of conditions of employment. But it would appear, as I said, that when they did the skills classification through the site within the last three years, that these were not they didn’t use these ancillary classifications they were using the core ones that were actually in the scheduled to the ones annexed to the AWA.

PN795

The next item is resolution of red circling and maintenance parity. There is reference to the deletion of this and it’s said in the dot point, the EBA has cause for facilitating resolution of red circling issues and it is said that one employee is still affected. Have you made any inquiries about that?---I made inquiries of Feltex Australia and they’ve indicated to me that they weren’t aware of anyone that was still outstanding under this clause. But if there is further particulars provided we are more than happy to consider them and look at making some provision for that person if in fact there is somebody that still hasn’t been resolved.

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PN796

The next – leave aside the next one – the 15.1 superannuation contributions. It the EBA required contributions to be made to ARF, the AWA removed the requirements to do so it is said opening the way for the employer to choose a default fund in the absence of the employee choosing. What do you say to that?
---Well at the moment the employees are free to choose under this provision whatever fund they want. I note that we have the name of Australia Entitlement Fund has changed to Australian Super Fund. The fact that the name has changed in the clause has only to do with the fund having changed its name. But at the moment I will indicate that our default fund is the Australian super fund. We’ve virtually made offers of employment to the monthly staff on the site and we have nominated the Australian Super Fund as the default fund. But at this stage we’d say there’s no doubt that they are not losing the right because even if another default fund was nominated they could most certainly choose Australian Super Fund if they so desire.

PN797

The next dot point deals with what is described a supplementary obligation, a super I’m not sure that’s English, but other than providing when going through the AWA simply refers to superannuation guarantee legislation. What do you say to that?---Well we’ve reviewed at some length the clause 50 of the Textile Industry Award and we believe we’ve covered everything in it that isn’t contained in the superannuation guarantee legislation. So we are not certain as to what – because a few things we found out that were included was the inclusion of superannuation on payslips, that’s now included in the payslip clause. There was provision for after tax contributions into super, we’ve now incorporated that into the actual superannuation clause and there was also an issue to do with the fact that you pay it monthly and that’s actually included into the clause. We believe anything that was in clause 50 of the Textile Industry Award has now been specifically provided for in the AWA.

PN798

The next item deals with a commitment to prevent and eliminate discrimination that occurred in the EBA. That’s been removed from the AWA why?---We believe that it’s now well covered under federal and state EO legislation which we’d say is probably imposing much more onerous obligations than that which were currently in clause 8 of the Textile Industry Award.

PN799

The next item deals with the enterprise flexibility procedures and consultative committees and the existence of consultative committees, why have those provisions not dealt with in the AWA?---Well clause 18 is only referring to establishing committees, that are looking at enterprise flexibility at developing enterprise flexibility enterprise agreement. Which means that really as you no longer – well this is I presume something that was happening back in the 1990s that is now not something we are seeking to do on the side and as accordingly we would see that these provisions have now largely become redundant.

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PN800

The next item deals with the classification structure and deals with a limitation on the proportion of juniors in the workplace. What’s the position with the current employees and juniors?---Well currently there are no juniors employed on a permanent full time basis on the site.

PN801

The next item refers to any junior employee with three years experience should be paid the adult rate, I think you said there are no juniors employed on a permanent full time basis?---No.

PN802

The next item deals with trade apprentices engaged in textile mechanics. Are there trade apprentices employed at present?---There are currently no apprentices employed under the Feltex enterprise agreement.

PN803

The dot point also refers to the engagement of trainees, are there trainees?---Again there is no trainees.

PN804

The next refers to payment of wages. The first dot point provides for the payment of wages for actual hours of 38 hours a week, or average hours. How does the AWA deal with that?---I believe it has the same vision or effect so I think that’s just a statement it doesn’t seem to say that the AWA varies from that.

PN805

The second dot point refers to the AWA – I’m sorry, the EBA providing wages are to be paid weekly, fortnightly or monthly. The AWA provides that wages only be paid fortnightly or weekly if Feltex elects to or monthly by agreement. What’s the current practice at Feltex?---It is fortnightly.

PN806

Also the next dot point refers to payment of wages. Certain options in the EBA, the AWA provides that wages will be paid fortnightly in arrears on Wednesday or as otherwise as nominated by Feltex. What’s the current practice at Feltex?
---That is the current practice.

PN807

The next dot point refers to keeping employees waiting for wages beyond ordinary working hours. Is that – how are wages paid now?---By EFT I’d have to assume these provisions were in the days when you were paying them cash and people had to wait around for cash to get paid. Now they are just going into their bank accounts which I note is usually outside ordinary working hours so they go in overnight.

PN808

The next dot point refers to the AWA providing for payment to be made fortnightly in arrears, I think you’ve said that’s the current practice?---That’s correct.

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PN809

The next dot point provides that wages can be paid by EFT or cheque where the majority of employees agree. The AWA provides that wages will be paid by EFT or however Feltex, I think you’ve added in the word, reasonably, otherwise it nominates?---The main reason we’ve added that is for technological change, you don’t know what three years – things do develop and change.

PN810

Yes. The next refers to late payment of wages under the EBA has that been an issue at Godfrey Hirst, the late payment of wages?---It hasn’t been.

PN811

The next is that the EBA provides the deductions are to be made without written consent and the AWA does not contain any such provision. Do you have any understanding of how deductions can be made from wages without written consent?---Well we have provided for in the AWA that they can be made by due consult with the employee and in accordance with a reasonable repayment schedule. I just observe the key reason why we tend to get into a situation of seeking repayment wages, is one of the most common ones is when somebody is sick on the last day before you are doing the pays and they haven’t yet provided medical certificates or proof. Generally we will assume they will provide the proof and pay them, rather than docking them, even though we haven’t got all the documentation in place. The other one also tends to be if there is clock card errors or things like that. For example, if someone gets accidentally overpaid. Or they’ve actually improperly done clocking errors. Our main issue with those is that if in fact we have no right to deduction at all we will just not pay in those situations which I think is a disadvantage to the employee. We’d rather be able to assume on things like sick leave and that that in fact they will produce the relevant proof and that we can pay them. If there’s been an overpayment sit down with them and figure out how we can in a reasonable way have that money repaid to us. But it does require – actual provision we’ve got is 26E and as far as this thing about deductions. It does currently provide in there – there it is it is now 25E, it provides in the event of an overpayment it’s got to be an actual overpayment, not just a deduction on a whim or something like that, it is if we have actually overpaid somebody. The employer authorizes us, subject to us first consulting with them advising as to the amount, and seeking agreement as to the reasonable repayment schedule to make appropriate reasonable deductions. Following the agreement or re the error or the agreed number of pay periods, so we believe on that you are required to consult, it’s got to be a genuine overpayment and you seek agreement and it’s got to be an appropriate reasonable deductions, we believe there’s quite a lot of safeguards that the company have and in an appropriate manner.

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PN812

Okay to deal with the next one which is payment by results, a PBR system. Is there a PBR system in existence at Feltex at the present?---No, not that I’m aware.

PN813

Is there one at Godfrey Hirst?---No. But I would note that even if one was introduced you are still obliged to pay the wage, so I suppose in here the union observes that it’s silent and that they should still apply these provisions. In fact I would be saying that to the degree a thing that if anything like that did arise it would be above what they are already provided for in the AWA.

PN814

The next item on page 24 of the union sheet is overtime and the first provision deals there with notification on the previous day of less than two hours and then the overtime is cancelled. Employees are entitled to an hours pay at the rate of time and a half but the AWA only provides for payment where the employee has already commenced the overtime. Why that change?---We have now amended that clause to simply provide that should an employee be advised that they will be required to work overtime of not less than two hours but after the cessation of work on the day prior to the day upon which the overtime was due to be worked. So we now believe that that fully reflects what the award provision is.

PN815

The next dot point refers to employees under 16?---There aren’t any.

PN816

The next dot point refers to firstly the EBA says the employee’s entitled to a 10 hour break and refers to a 10 hour break payment and so forth and it’s said that the AWA allows this period to be reduced to eight hours by agreement with an individual employee, you see that?---Yes.

PN817

Does that change the award provision as adopted in the enterprise agreement?---I don’t believe so because clause 19(e) specifically provides that a 10 hour
break - - -

PN818

Perhaps we’ll just go to clause 19(e)?---Yes.

PN819

Of the 1994 award?---Page 72.

PN820

On page 72 you have (e) which deals with the 10 hour provision in the first three paragraphs and which is what the union have referred to in their document, but then I take it you are referring to the last part, part 4 about the substitution of eight hours where overtime is worked, where there is agreement or by arrangement with employees?---That’s correct.

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PN821

Right?---So I believe currently our provision there reflects the current arrangements.

PN822

The next dot point is the EBA provides the employees may choose whether to work overtime for time in lieu of payment, the AWA provides that it must be by agreement with Feltex. Now what about this position of the option of payment of time in lieu of payment?---Yes. Well I’d refer people to clause 19(a) which is just on the opposite side of the page of the eight hour 10 hour rule, which provides that agreement must be reached between an individual employee and his or her employer. So clearly an employee cannot unilaterally decide to have time in lieu, it must be in agreement with their employer. So I believe that they’ve misconstrued the award.

PN823

That’s in 19(a)?---Yes, 19A(a).

PN824

I’m sorry?---Pager 73.

PN825

Yes, big A little a?---It says agreement must be reached between an individual employee and his or her employer which makes it very clear that you must have the employer’s agreement.

PN826

Right the next item is the EBA provides for time in lieu is to be at the current rates when it is taken, the AWA removes this requirement. What do you say to that?
---Well if you’ve taken time in lieu you’d always be paid at the prevailing rate, we would be obliged to pay them at the prevailing rate the time they take the time off and so that would be the effect anyhow, so I don’t know how you – it’s superfluous as far as making that provision.

PN827

The next dot point refers to the taking of annual leave, as time in lieu within a 12 month period, you see that?---Yes.

PN828

Why have you chosen a 12 month period?---Well I in fact had discussions with Ms O’Neil and Wiles about this and nobody could actually understand this clause. We looked at it and we looked at the 2000 they’ve all got a very similar clause. Nobody could explain or say what it meant and we actually agreed and we were at a meeting, so it was a without prejudice basis, but it was basically agreed that putting the 12 months in was probably a fair way of probably giving the same result as whatever was intended. It seems that somehow, it’s got some – we just couldn’t understand it.

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PN829

The next dot point deals with call back entitlements where they are notified after leaving for before or after, and how the call back entitlements are to apply. You say in your document that it’s a misreading of the clause. Why do you say that?
---We’re talking about being a call back after you’ve left work, not that you had to be – you actually had to be called back after you leave work. The intention is that if you are defining a call back it is something when you are called back to work after you’ve normally left. Not that you’ve actually got to be asked to do it after you’ve left work.

PN830

The next item deals with shifts and seven day continuous shift work. The first dot point deals with seven day continuous shift work I think you said there is no seven day shift work at present?---No.

PN831

No intention to introduce it?---No.

PN832

The AWA has removed the provisions allowing 12 hour seven day shifts, the third dot point refers to it says, there’s nothing in the AWA which prevents Feltex introducing 12 hour shifts unilaterally. Do you agree with the union when they say that?---No. As I said, it provides for a major length of shift of 10 hours actually in the AWA itself. It is actually in clause 7 – which one is it, it is in the – I’ll just find it.

PN833

THE SENIOR DEPUTY PRESIDENT: 7.2?---Yes, I think that sounds like the right one. Yes, it does it provides that shifts shall not exceed eight hours other than by agreement with Feltex and it can only be up to a limit of `10 hours, so it s very, very clear, this bans a 12 hour shift.

PN834

MR PARRY: The next refers to differing shift conditions for employees and consultation about that. How would the AWA deal with consultation?---Well we’ve got clause 12.3 that covers the transfers of shifts which sets out we would say – I think I’ve discussed in the past we actually believe it is a more favourable arrangement than what’s currently provided in clause 12 of the certified agreement.

PN835

You set that out in your statement at dot point 4?---I’ve already discussed it at some length.

PN836

Yes, I’m sorry dot point 5. It also allows access to the disputes procedure?---Yes.

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PN837

The next item deals with increasing the spread of night shift. Now there’s the EBA defines a night shift term. The AWA allows for agreement between Feltex and the employee in writing to alter that term. You say that it’s unlikely to disadvantage employees increasing the spread of night shift with its loading?
---It’s the highest loading shift. In fact if you were trying to decrease the amount of night shift and make more shifts at 15 per cent you could see why people would think there are disadvantages. In fact it’s giving sort of a wider spread of hours once you have a 30 per cent loading on them.

PN838

The next item refers to no definition of morning shift and permanent night shift. What do you say to that?---Well at the moment the shift we define as night shift is a permanent night shift. The awards themselves if you read they’ve actually got a provision in them they say that all shifts should be rotating. All Godfrey Hirst sites and Feltex do not have rotating shifts, the employees do not want rotating shifts. The idea is on a rotating shift is they get the 15 per cent loading and they are working a night shift and they are working afternoon and day and they are just getting an average of 15 per cent loading. In fact what you’ve got at Feltex is permanent shift structure, which is why you’ve got a transfer of shift procedure and things like that. So in fact the night shift as referred to in this AWA is a permanent night shift, as there’s no provision for a rotating shifts within the AWA.

PN839

The next item, the next dot point, deals with allowing of a changing of hours on the basis of agreement between Feltex and the individual employee. There’s also reference in there to the last sentence. Under this arrangement all hours of duty be on nine hours even if they come within the starting and finishing time of the shift shall be paid for at overtime rates. Where does that come?---I don’t know, because I’d say under clause 7.2 of the fact that the employees agreed you could work up to 10 hours as ordinary hours. So I’m not too sure where this has come about. It’s probably - I’d just like to mention that’s the morning shift because we haven’t sort of raised that it probably requires a little bit of explanation. We have provided for a morning shift so all hours are covered, currently if you start work before six in the morning there’s no shift. Day shifts can start at – I’m sorry day shift starts at seven, or can start at six by mutual agreement. You have a morning shift that starts at six, but nothing that starts before that. We sometimes find at Godfrey Hirst we’ve got no times in our spinning mills, and we want to start winding a couple of hours early we’ve got not enough winding capacity and we’ll call for volunteers and they are happy to come in at four in the morning and knock off early to get a 15 per cent loading like an afternoon shift and starting early in the morning. Currently you can’t do that in the award, there is nothing – there is no such shift under the award at all. I will say we have provided now for this idea of a morning shift which does allow this idea which often enables a few people to get in there early to get things ready for the day shift to come in which they usually tend to be short term things, but at times we do see something that is desirable to be able to do that.

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PN840

Now, the next item is - - -

PN841

THE SENIOR DEPUTY PRESIDENT: Mr Parry, I might just stop you at that point and I think in light of the time but before adjourning for lunch I did want to deal with the issue of programming or ask the parties to consult about it over the luncheon break and also make this observation, it appears to me that this may indeed be the first blow by blow analysis of the agreements between the parties and I note from the evidence, Ms Rechenberg-Dupe, a number of matters are responded - a number of the union issues are responded to by way of, well, as a matter of practice the missing provision the union is complaining about is not relevant, that might be amenable to some resolution between the parties in terms of some assurance that the current practice won't change in some form or another or retention of particular provisions.

PN842

In other cases the union's complaints have been met by, well, there's no current application, the union says there is, the company's not aware of them but it's prepared to consider any raised by the union that might instantly occur, and the third response is that matters are inconsequential. Now, that may well be dispute by particular matters by the union but if they are inconsequential they might be amenable to resolution and in other areas the union complaint is met in the evidence by, well, there's no difference in what we're proposing to what the current instruments provide. If that is the case, and again the union might dispute that, they would seem amenable to resolution, or some of them at least, and in further instances the union complaints are met by, well, that's a reflection of the general legal position which will apply and microscope some agreement as to whether or not that is the case and if it is then acting on that basis.

PN843

I just raise for the parties consideration, it's a matter for them entirely with all these matters of detail having been aired or whether there is still some scope for the parties to reach some resolutions of instruments to take them forward jointly. I can see that that's not easy in the sense that the union is seeking the continuation of the current legal instruments, the company is seeking new legal instruments and they are subject to different legal requirements, but that's a matter even if the current agreement continued it would have to be addressed by the parties in August next year. There's a further complication clearly in terms of the National Building Code. It doesn't apply to the company as a matter of legal obligation but rather as a matter of commercial practicality in respect to which the union and its members might have some common interest.

**** SUSANE ANNE RECHENBERG-DUPE XN MR PARRY
PN844

Now, they might need to be addressed in the context of any expiry of the current instrument in any case and if not as a matter of commercial reality, addressed earlier or immediately. So I realise it's not an easy task for the parties but it may be that the extent of differences is not as great as the parties imagine and that it's capable of resolution. There's still some keys issues as between the parties which didn't fall within those categories which I earlier mentioned of course and the union may well have a different view to Ms Rechenberg-Dupe about some of those matters that did fall into those earlier categories. So I just raise that as a matter for the parties to consider as an alternative from these proceedings and indeed visiting Jessup J in December. As to programming, we've not yet completed the examination-in-chief of Ms Rechenberg-Dupe.

PN845

I anticipate that will be some cross-examination. I have no idea what's going to occur in terms of the Andersons in cross-examination. I have no doubt however that Ms O'Neil's evidence will probably take a similar course and time as that of Ms Rechenberg-Dupe. Perhaps I made an error last Friday in not asking the parties how long they thought this whole matter would occur. So I would ask the parties to confer over the luncheon break of the timing, firstly what further time is required and how that might be best done in a sensible but expeditious manner. I can indicate in that context I remain available tomorrow but that is subject to confirming that fairly - well, immediately after lunch and making appropriate arrangements.

PN846

I can indicate also that if it assists the parties in the discussion I could be available from nine till one on Monday, 13th, Tuesday, 14th, and available - or I can make myself available at any time with some appropriate action for the remainder of the week, Wednesday, Thursday and Friday. So I would invite the parties to consider first hand how much longer might be required and secondly, how that might be sensibly but expeditiously done in all the circumstances. I might say in relation to that, if the parties reach a view that further discussions might be fruitful that could be built into any program the parties might want to discuss and indeed the availability of Commissioner Whelan again as well, but I simply raise that for the parties to consider with the counsel with their clients and to discuss as far as possible before we resume and I would intend resuming at 2 o'clock and I will deal firstly with the programming matter. Yes, Mr Parry?

PN847

MR PARRY: Just we'll need to obviously speak to Ms Rechenberg-Dupe.

**** SUSANE ANNE RECHENBERG-DUPE XN MR PARRY
PN848

THE SENIOR DEPUTY PRESIDENT: Yes. I'm sure no issue about that. Yes, that's certainly fine. Well, thank you for your evidence thus far and we'll resume at 2 o'clock.

<LUNCHEON ADJOURNMENT [12.50PM]
<RESUMED [2.00PM]

PN849

THE SENIOR DEPUTY PRESIDENT: Yes, I would like to deal with the programming issue first, Mr Parry.

PN850

MR PARRY: If your Honour pleases. We have had discussions with my learned friend. We haven't agreed on programming issues. We would want to continue this hearing today as far as it could possibly be held within reasonable constraints to finish as much of our evidence at least as we possibly can. We want to continue tomorrow on a time suitable to the Commission.

PN851

THE SENIOR DEPUTY PRESIDENT: How long do you anticipate will be required to bring the matter to conclusion?

PN852

MR PARRY: I would have another half an hour of evidence-in-chief with
Ms Rechenberg-Dupe. My learned friend tells me he has upwards of two hours of cross-examination. Ms Anderson who is here, there would be some further 15 minutes of evidence-in-chief and I don't know of the extent of the cross-examination. I anticipate that would be fairly limited. And Mr Anderson, the receiver, there would be very limited further evidence-in-chief and again I'm not sure that cross-examination would be extensive. As to Ms O'Neil, if and when we get to her, I would imagine cross-examination would be at this stage probably an hour and submissions, we will do what we can to reduce them to writing as far as possible. If it were at the stage that we reach tomorrow we would make submissions to the Commission, if that were suitable to the Commission.

PN853

THE SENIOR DEPUTY PRESIDENT: Yes.

PN854

MR PARRY: That's our submission with regard to programming, your Honour.

PN855

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Mr Borenstein.

PN856

MR BORENSTEIN: Your Honour, we have no opposition to the Commission sitting today to a conclusion of Mr Parry's evidence. It's an extraordinary step for the Commission to take to sit on a weekend, especially when it's Remembrance Day. We would suggest that the issue of urgency is not so great that the matter could not proceed on Monday morning in the time allowed by your Honour or indicated by your Honour before lunch. I think given Mr Parry's estimate of the cross-examination of Ms O'Neil, I think that her evidence would be well concluded within that period.

**** SUSANE ANNE RECHENBERG-DUPE XN MR PARRY
PN857

THE SENIOR DEPUTY PRESIDENT: Within the period of Monday?

PN858

MR BORENSTEIN: Within the period that you have allowed on Monday. Of course one is making guesstimates and one can't give guarantees, but I would anticipate that if the cross-examination is of the length that Mr Parry suggested, then we would expect that she would be well finished by then and then it just depends on the extent of the submissions that your Honour requires at the end because your Honour will glean the submissions of the parties through the cross-examination effectively on the way through in any event.

PN859

THE SENIOR DEPUTY PRESIDENT: Yes.

PN860

MR BORENSTEIN: But as to how much time there will be needed for submissions I am not in a position to estimate at this stage. But can I remind your Honour that the settlement date here for the sale we are told is 24 November and the commencement date that's nominated in the AWA is 1 December. Now, we would say, your Honour, that in those circumstances your Honour ought to list the matter on Monday rather than tomorrow. I really can't say any more than that, your Honour.

PN861

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Parry.

PN862

MR PARRY: If your Honour pleases. Firstly, these proceedings were fixed to proceed on Saturday as they were fixed last Friday following fairly extensive submissions and argument and we have prepared on the basis that we are proceeding tomorrow and that should be the course that's followed. The urgency remains in this matter. This is a business in serious decline. It's losing significant amounts of money. The receiver for whom I appear wants to get out of running the business and hand it over to experienced operators. Now, the 24th is a date that is the date that is a Friday and it's the date that the business in effect settles. Thereafter Godfrey Hirst run the business and control the business and to do that they would want to be doing it with their own employees and employed on terms that are hopefully suitable to them and the employees. Now, that means that offers to be made would need to be made towards the end of next week. Now, if they are to be made that depends on your Honour's ruling, obviously your Honour will require a bit of time and consideration to consider the various issues and we submit that the matter should proceed tomorrow. If your Honour pleases.

PN863

THE SENIOR DEPUTY PRESIDENT: Very well. The matter was originally programmed to proceed on my understanding perhaps without adequate exploration that the matter could be concluded and the Saturday listing would be utilised for what I anticipated to be limited residual evidence and submissions. In the circumstances I propose to not sit tomorrow but rather to resume at 9 am on the 13th and I will keep aside 9 am on the 15th to conclude fully all evidence and submissions in relation to the matter in each case sitting to 1 pm, subject if necessary to re-listing the matter later on the day on the 14th if there remain any outstanding matters and I will proceed on that basis. So we'll resume I think with Ms Rechenberg-Dupe. Mr Parry.

**** SUSANE ANNE RECHENBERG-DUPE XN MR PARRY
PN864

MR PARRY: If your Honour pleases.

PN865

Ms Rechenberg-Dupe, we were up to I think clause - I'm sorry, page 26 of the union's document. Following page 26 there is reference to the first dot point -

PN866

Payment in lieu of notice is required under the EBA if the appropriate notice is not given.

PN867

It then says:

PN868

The AWA provides that payment in lieu of notice may be made at the discretion of Feltex.

PN869

Do you see that?---Yes.

PN870

Now, at the discretion you deal with that on page 12 of 14 of your document, is that the way that it's mean to read?---No, most certainly like I think that it's mis-read. At the moment when it's saying maybe made, it says at the - it actually doesn't say -

PN871

may be made at the discretion of Feltex.

PN872

The actual clause says, if you actually read 19.2, it says:

PN873

At the discretion of Feltex, a payment may be made in lieu of notice.

PN874

Meaning that in fact rather than having the employee work out the notice Feltex may in fact make payment in lieu thereof, so that's just been misquoted from the clause.

PN875

Right. The second dot point says that -

PN876

The AWA provides that notice may be waived by agreement, opening the way for Feltex to avoid paying notice to an employee.

**** SUSANE ANNE RECHENBERG-DUPE XN MR PARRY
PN877

Now, how do you deal with that in your document?---Well, in fact we'd say that the most common reason why notice is waived is because the employee in fact wants to leave early to go to another job in which case it would be correct that the not working out the notice period why should Feltex pay out the notice period. So I'd say that is the intention but when it's by agreement the employee makes that agreement knowing that they're not going to have the balance of the notice paid out because usually they've got something else they want to do and don't want to work out the notice period.

PN878

The third - I'm sorry, on page 27 of the union document there is a heading Dismissal. Below that -

PN879

The EBA includes provisions protecting from unfair. This are not included in the AWA.

PN880

And what do you say to that?---Well, these provisions are now prohibited content and I would observe that in my experience all unfair dismissal cases we've had with this union have in fact been under the Workplace Relations Act. I've never had anything brought under this particular provision of the EBA which I'd have - on the award which I'd have to say has pretty well been made redundant by the Workplace Relations Act.

PN881

The next dot point deals with a requirement in the AWA that the employee must return all property within 24 hours of ceasing employment and not keep copies of employer information or material without express written permission, where does that come from?---Well, I'd have to say that - I would say being any implied condition, any person that owns a property has the right to require its return and I'd say that's just a normal implied condition of employment.

PN882

The next dot point deals with notification of absence, the EBA providing an employee must notify an absence of greater than one working day within four hours of commencement or 24 hours and so forth. The AWA makes provision for the notification of absence prior to the normal commencement of work or as soon as reasonably practicable, is there any distinction?---I can't see any distinction between those two clauses.

PN883

The next item is the stand downs provision, the EBA allowing a stand down for any cause which the employer cannot reasonably be held responsible, the AWA articulating a number of particular reasons. What arises from the changes made in the AWA?---Well, I'd say that I don't accept that it does dramatically change them. Strike, breakdowns cover restrictions, a rationing or emergency disconnection, that's actually covered under clause 46 which is the emergency electricity provisions and we would say that as far as your raw material shortages that would be a normal grounds kind of stand down. As far as the issue - then we've got the extra clause which actually provides for consultation which reflects the current award and if it relates to the fact that there's no work it's a different one again.

**** SUSANE ANNE RECHENBERG-DUPE XN MR PARRY
PN884

And the next item refers to also consultation in respect of stand downs. What happens if there's not an agreement reached with regard to a stand down, where does that go under the AWA?---Just a sec, I'll just have a quick read. Yes, under clause 21.2 we've now got a specific provision that relates to consultation on stand downs when there's no work. This does require that they consult with the employees and/or their nominated representative. You've got to consult with a view to seeking agreement, basically if you can't reach agreement you make seek resolution of the issue pursuant to the dispute resolution clause which effectively is very similar to the current provisions under the award which provide that you can go - you're supposed to get the consent of the union but basically you can't be unreasonably withheld in which case if you end up in a stand off you can still use the dispute resolution clause to resolve that. I would - sorry, the question before that I just realised I did miss out one of those which is in the stand down clause of clause 22. We do actually mention in there that it also covers a shut down of a business in a situation where the employee has insufficient annual leave credit to cover the period of the shut down. That is a specific provision to cover the situation which currently in the Textile Industry Award in a shut down you can require those employees with insufficient leave accruals to actually - you don't have to provide them work during the shut down and so we've actually provided for that under the shut down clause. But we would say that is no different to the current rights under the Textile Industry Award, it's just under that it's coming under the actual shut down provision for annual leave he would put it down under the stand down clause. So otherwise it would mean that basically once you've got into November you couldn't hire employees any more if you're going to have a Christmas shut down because you find work for them, particularly at this site if you're going to have a three week shut down.

PN885

The next item refers in the union document -

PN886

Under the EBA an employee who has been given notice of termination cannot be stood down.

PN887

That's not in the AWA?---No, it's not.

PN888

And the next item is -

PN889

Under the EBA employees cannot be stood down on a public holiday.

PN890

And there's also no similar provision in the AWA?---Under the AWA you cannot have ordinary hours on a public holiday so we don't know how you would have a situation where you - I presume that provision is probably in there for a 12 hour shift operation, seven days where people are working on public holidays.

**** SUSANE ANNE RECHENBERG-DUPE XN MR PARRY
PN891

The next dot point raises the issue of continuing of employment and accrued entitlements not to be reduced. It raises the suggestion -

PN892

Under the AWA continuity of employment remains protected, however accrued entitlements are not.

PN893

?---Well, I can't think of a way you could reduce accrued entitlements through a stand down.

PN894

The next dot point deals with if one attends during a stand down and there's no attempt to notify by the employer about the stand down presumably, that employee is entitled to two hours pay or three hours if he or she commences work and the AWA protects the three hours but not the two hours. So has there been an amendment made to that?---That's been corrected and we've just changed the word commence to attend, so in fact an employee is scoring an extra hour in fact if they attend and don't actually commence they'll in fact be told three hours, so it makes no difference whether they actually commence work or not.

PN895

The next dot point raises this what appears to be a hypothetical about a right to institute a de facto stand down and subvert the stand down procedure. You have looked at that?---Probably given that shut downs are basically eight weeks notice, I'm not - a stand down to me is something that responds - it doesn't have extended notice periods so to some degree I don't understand why they're worried about something on eight weeks notice subverting something that's a right to do it on much shorter notice because to me my understanding of stand down is it's something that you've got to react fairly quickly to because you can't plan for it and it's something that's cropped up that you've got to stand workers down. It's something you're going to know. If you know eight weeks in advance proper procedure would be to look at a shut down type situation for people who are on leave.

PN896

Now, the next item deals with meal intervals and rest breaks. The first dot point says that -

PN897

The EBA provides that any work required by the company during the worker's meal break is to be paid at time and a half.

PN898

And that is not provided for in the AWA, why not?---Well, under the AWA there's no provision. You can't require a worker to work during their meal intervals, so if you can't require them to work there's no need to provide a penalty for it.

**** SUSANE ANNE RECHENBERG-DUPE XN MR PARRY
PN899

The next dot point deals with employees who work, I think that's 12 hours consecutive is normal daily hours. Are there 12 hour normal shifts?---No 12 hour shifts.

PN900

And the next item is:

PN901

Tea breaks can't be taken within an hour of starting or finishing times or a meal break but the AWA allows the company to require the employee to take them consecutively.

PN902

?---At the moment we currently are providing the option in this group. They can either have a 20 and 10 or you can have one 30 minute meal break, for the paid meal breaks we're talking about there and that is currently a provision in the AWA.

PN903

The next item deals with public holidays and the first dot point deals with a situation where an employee starts or finishes their shift on a public holiday with no extra payment provided they work the majority on the shift the day before or after the holiday, that the EBA doesn't have the same provision, it refers to where the night shift is commenced on a holiday and the previous night shift has been given as a holiday. What's the current practice at Feltex?---Feltex runs a split night shift. They have one night shift that runs Friday night and one night shift that runs Monday morning which means whenever you get things like public holidays and that, in fact they're sort of running at the different end of the day and because - I think the - I forget, under the award there's an assumption that you only run night shift at one end of the week. I honestly can't remember, I think they run assumption you're running it at the Friday night, not the Monday morning and this is just making provision that it doesn't really matter which pattern you're running. In fact you judge the public holiday to be day - like the day in which the majority of your shift is actually running, because they also run an 11 o'clock to
7 o'clock so you run this crossover on their night shifts that they're kicking over, starting at 11 o'clock so you're sort of get this kick overs on it.

PN904

The next dot point deals with the agreement regarding substitution of public holidays. I won't take you to that one. The next one deals with the removal of a provision in the AWA about rostered days off falling on a public holiday?---Well, clause 13 provides that no RDOs will be rostered on public holidays so that won't be an issue.

**** SUSANE ANNE RECHENBERG-DUPE XN MR PARRY
PN905

The next dot point deals with casual employees. You don't have casual employees?---That's correct. Well, not employed under these agreements, sorry.

PN906

Not employed under - - - ?---Or they're not subject to this application.

PN907

Yes. And the final dot point deals with part time employees. You don't have part time employees at the moment at Feltex?---There's no part time employees, no.

PN908

The next dot point deals with blood donors, we'll move on from that. Then it deals with accident pay and 18.10 it's said that:

PN909

The AWA does not define injury and limits the injuries - - -

PN910

MR BORENSTEIN: We're not pressing that, your Honour.

PN911

MR PARRY: Is that the first dot point or the whole three dot points?

PN912

MR BORENSTEIN: The whole three.

PN913

THE SENIOR DEPUTY PRESIDENT: Very well.

PN914

MR PARRY: Big progress.

PN915

THE SENIOR DEPUTY PRESIDENT: You're getting there?---Slowly.

PN916

MR PARRY: The next deals with jury service leave. The first dot point refers to make up payment at the award classification rate and the AWA provides for payment of normal wage excluding any overtime shift premiums. You deal with that in your document with a belief that the AWA is more favourable if an employee is on a greater wage than the award classification. Why do you say that?---Because we're paying at their normal wage and as you're running there about - I don't know the exact numbers, but you're probably talking, it's probably nearly 30 per cent that are receiving an over award payment of some description, aren't sitting on skills, on the actual award classification, that they're actually receiving more on the AWA than they would under the EBA.

PN917

The next item raises this hypothetical that the employee may be required to perform jury duty and then may be required to attend for work on afternoon and night shift. Now, the AWA, you refer in your document to clause 18.11 and what do you say to that construction that the AWA allows for employees to be required to work on their normal shift as well as the jury service?---Well, it just says quite clearly:

**** SUSANE ANNE RECHENBERG-DUPE XN MR PARRY
PN918

If an employee is called up for jury service you will make up the difference between a daily attendance fee and your normal wages for the same period.

PN919

So I think it's clearly stating that you're not expected to work during the period you're called up for jury service, so I don't believe that there's any requirement to actually make that specifically provided for.

PN920

The next item raises facilities and it says:

PN921

The EBA guarantees hot water, seats, rest rooms, dining room facilities, first aid tests, protective clothing -

PN922

et cetera, et cetera, drinking water and tools of trade and the AWA doesn't provide for most of those things. What's the consequence of the AWA not providing for those things?---Well, at the moment I'd be saying a lot of those I'd say are straight OH and S issues. There is issues actually in the AWA about protective clothing. There's something about tools of trade in there but on the whole we'd say that they're - I don't believe anyone will be alleging that we plan to take them away either at the end of the day.

PN923

The next item is that the EBA provides for the award to be posted and the AWA doesn't require that the AWA be publicised. I think you refer there to the Workplace Relations Act there and the requirements therein and you comply with those presumably?---And you've got to keep a copy of the AWA so if the employee wants access to it they can most certainly access the AWA.

PN924

What about the next one about the keeping of a time and wages book?---Well, at the moment the Workplace Relations Act and Regulations have extensive time and attendance requirements and we believe they're in excess of those required under the award. Also under the Workplace Relations Act the unions have a right to inspect in cases of suspected breaches and so there's really no need to include that in the AWA.

PN925

The next dot point deals with outdoor workers, do you have those?---No.

PN926

When I say you I mean Feltex?---Yes.

PN927

There's then reference to notification of change in the next dot point. I think you've dealt fairly extensively with notification of change. The next provides with parental leave, 18.6. This is about communication by the employer about any significant effects on the employee's work during parental leave and the AWA does not do that. Has there been an amendment made for that?---No look, in fact you're supposed to be consulting with all - if there's any significant effect, especially all affected employees, if there's an employee on maternity leave it would mostly certainly be classed as an affected employee and would be required to be consulted whether they're on maternity leave or not, it's just that it involved the workplace, if they're going to be affected they've got be consulted under clause 21.

**** SUSANE ANNE RECHENBERG-DUPE XN MR PARRY
PN928

All right?---So that comment isn't the right comment that's currently in the chart. I don't know what - it's a typographical error.

PN929

All right?---Yes.

PN930

And the next dot point on the next part of this deals with the supported wage system for workers with a disability. Does Feltex have workers with a disability under the supported wage system?---I believe they do not have.

PN931

And finally with regard to this document, there is then a number of allowance and it moves down to I think an instructor's allowance and to go over the page, I think at the bottom, under the heading Training Allowance, 14.8, it moves down to that bit, the final paragraph in that block which says:

PN932

The AWA seeks by this clause, seeks to restrict claims for reclassification of a skill level 2 employee who performs these skills, seeks to undermine the skill level classification structure.

PN933

You have dealt with that in the final block of your document. Why doesn't the AWA so seek to undermine the skill level classification structure?---Well, there is a training allowance currently provided for in the current certified agreement which there's no definition of what a training allowance is as such under the award. In fact we have made inquiries of the people at the site and that is what they have said that allowance has in fact been used for in the past, so that's just clarifying what an allowance was, that they had a figure in the schedule but there was really no explanation for what it was actually for. So we're only seeking there in effect what is current practice.

PN934

All right. Now, if I could hand you a document that we were provided just before the Commission commenced this morning comparing - - - ?---I've got a copy here.

PN935

Does your Honour have a copy of that?

PN936

THE SENIOR DEPUTY PRESIDENT: I do. That's the two page document,
Mr Parry?

PN937

MR PARRY: Yes, it's a two page document.

PN938

Now, the first block there deals with statutory declarations and notification of absences. Can we take it that your evidence with regard to the Tottenham, Braybrook NDC AWA also relates to the Hallam one?---That's correct.

**** SUSANE ANNE RECHENBERG-DUPE XN MR PARRY
PN939

The second one deals with annual leave. Now, are there somehow differences between the Hallam annual leave arrangement and those that apply under the Tottenham AWA?---Yes, Hallam basically provides for what's equivalent virtually of 42 ordinary hours sorted per week. They're running 38 ordinary hours and four hours overtime which makes the standard working roster of 42 hours in a work. Currently they come up with a figure currently that they set out - if you look at the certified agreement they've got quite a convoluted calculation and they talk about there being - which I think is raised somewhere here, they raise it that there's 28 - there's 100 hour of ordinary and 28 days, 24 hours of time and a half and 44 hours of double time. That calculation which is over 168 hours is building into it your weekend penalties because whether they're time and a half or double time as well as this four hours of double time per week. So of that you've got basically what would be 16 hours of actual overtime in that 168 and then the other time and a half and double time is in fact weekend penalties. They then also on top of that allow a public holiday loading and they allow a shift loading of 15 per cent for half the shifts given that half of the shifts end up being a day shift running seven to seven and the other half are running eight. In that are called the night shift, if you read the definition in the award, in fact they're really an afternoon shift, so that's why the 15 per cent runs through half the time and what they've done is they've sort of worked this out over the 168 hours, worked out what an average weekly wage is and then each week they just paid them this $1000 odd a week which some weeks they'd be working more than 42, sometimes they'd be working less than 42 but they just average it out week to week based on that. We have got a similar set up at Fibremakers where we just run a shift loading which is much simpler. What in fact - and what we've in fact been looking at doing here is if in fact you run on 38 hours at a 34 per cent shift loading plus your four hours overtime of double time per week it ends up being a very similar amount in the actual weekly wage as the current calculations. In my exhibit to my affidavit there is on the back of it a comparative table for Hallam, calculations detailing exactly how these figures pan out. But it also means is when you get into things like annual leave and long service leave and that they end up taking them also at 42 hours a week because they want the same amount of money because it's fitting in with their shift roster. It's what they're actually sort of giving up at the time they're doing it, which is while they end up with annual leave running at, if you calculate on an average again of 42 hours a week times five weeks it's a very difficult structure. But we do believe that sort of by getting it over the model it's much more closer to Fibremakers. Monetary is wise it's actually the same, it's just the manner of calculation of wages that is changing and in many ways it's a lot more transparent and more understandable generally. But until we look at this, because it was at the back of the calculations, I think it ended up being 98 cents difference or something a week for an operator. In fact there are no trainees currently at Hallam. They're all supervisors who in fact end up getting about $3 more a week or operators who are getting minus 98 cents. But it's a very close figure. Once you understand that that's how they're working there, when you get into annual leave, annual leave gets taken based on again, on this idea that taking 42 hours a week. In fact I've gone through and done the calculations about this being - because they talk about in the award being the greater of the ordinary pay plus 17, plus the shift - or just the shift loading. What in fact, if you work it out, in fact it's more if you're paid from 38 per cent - 38 hours at 34 per cent and four hours overtime. Unfortunately I realised when I was looking at this this morning that I did get a bit carried away in my deletion in my AWA and I deleted two extra words out of this clause, but the idea being that we're saying annual leave on this, and people can do the figures after this, they just calculate that we're not short changing anybody, but on my calculations it ends up being the most preferable. But the pay rate for annual leave will basically be their ordinary pay rate at the time the leave is taken plus their normal shift loading which will be 34 per cent, plus they get paid for any overtime which would otherwise have been payable, which is the extra four hours of overtime. So for each week they're off on annual leave they get paid for 38 hours ordinary time plus 34 per cent loading and four hours of overtime. So you're paying them for the rosters that they're effectively not working and I must say, when you actually read the Hallam agreement it's actually unclear what they're getting paid. I know effectively that's what they are getting paid but I don't even think the EBA necessarily is reflecting what is actually happening. So what we're documenting here is effectively what is happening when these people go on holidays or leave or things like that. So that's sort of what happens with the annual leave, so we say now when they go on annual leave, similar to a normal shift worker, if they're off for 42 hours worth of time which is the week's worth of work they'd get paid 38 hours at 34 per cent plus four hours overtime which is normal weekly wage which ends up being more than 38 hours plus 17.5 per cent which is the other model they've got running there.

**** SUSANE ANNE RECHENBERG-DUPE XN MR PARRY
PN940

Your Honour will - - - ?---So there's all very complicated - we can do the calculations, we can do the calculations but we've set out a number of calculations on this. So is that a bit complicated?

PN941

I'm sure it will assist us to look at the transcript of that. The next block is the minimum crewing levels for the air entangling operation, what's the position there?---Well, we believe that will be in line with OH and S or production requirements.

PN942

Clause 9 deals with - I'm sorry, clause 9 of the Hallam AWA deals with the paid two 20 minute crib breaks and their replacement with two 30 minute breaks. Do you just deal with that in your - or is that a separate matter?---No, that's just another option, probably because we have tended to find that some of our sites have particularly got ...... A lot of the people prefer to have the 30 minute break than the 20s and the 10s because it means you can actually go to the shop to get a sandwich or something like that, compared to 20 minutes where you're really very limited in what you can do in that time.

PN943

And the next item deals with the forklift duties non store persons. What's the change there?---Well, currently in the EBA says providing that all employees must have. I think we've just said that if we require them to have they will have one so it's not an actually mandatory requirement.

PN944

The next dot point deals with fixed times which can only be changed by agreement and the AWA providing for no fixed shift times and allowing them to be unilaterally set by Feltex. What's changed there?---I'm not too sure what has changed but that I think is - we've already these discussions about starting and finishing times of shifts. My understanding is it under the current award that you can basically advise notice. There might be something different in there.

PN945

Right, so you've dealt with that regard - - - ?---I believe we have dealt with it previously. It might be somewhere else.

PN946

And also with regard to rostering in the next one, the same, that's something you dealt with this morning?---That clause, the roster clause on Hallam is slightly different because it's running a much different form of roster at Hallam. The clause on this one provides that - we provide - it is industry unilaterally. That provides that with the maximum of 168 hours may be rostered in 28 consecutive days which will be initially in accordance with the current agreed roster, or such other roster as may be developed by Feltex in consultation with employees, or if the employees indicate they wish to be represented by their nominated representative. So if we have a duty there to consult with employees who are seeking to change the rosters which I'd be saying I believe under the existing Feltex Certified Agreement there's a similar obligation.

**** SUSANE ANNE RECHENBERG-DUPE XN MR PARRY
PN947

The next dot point deals with the payment over a 28 day period on the basis of 100 hours of ordinary time and there's some suggestion that the AWA has changed that to a lower figure?---And I'd say this is - it's probably caused by a bit of a confusion by the way the appendix E runs. Appendix E talks about the shifts having these 24 hours of time and a half and 44 hours of double time. It then goes on to talk about how Saturday work has certain time and a half and Sunday work is double time but it doesn't really appreciate the fact if you look at what they're actually doing within the payroll office, in fact that Sunday and Saturday time is already built in to those 24 hours of time and a half and 44 hours of double time, that's why they've got that breakdown of those hours. In fact the shift loading there is only a 14 per cent one on half of those shifts compared to in our case the 34 per cent on the whole 38 hours.

PN948

The next item deals with when shifts are of the majority worked on Saturday and the payment of those and it is said the AWA removes these provisions. What has changed with regard to the payment of such shifts worked on Saturdays or Sundays?---Well, that is built into the 34 per cent shift loading.

PN949

Is it a reduction?---No. As I said, because those rates are already built into these 24 hours of time and a half and 44 hours of double time that is now included within the 34 per cent shift loading and I can go to the figures in some detail with people if they really want and show them payroll records, but that is already built into that figure that is in the current certified agreement that talks about those two lots of time and a half and double time. They just average it out over the whole year and work out how many hours over a whole year you end up doing on weekends, how many public holidays are there and that's how they're working out the entire salary for that 28 day period.

PN950

Yes. I think the document that - yes. When you're referring to this I think you're referring to the attachment to your statement, a comparison of the Feltex agreement and I think that appears as a table following the Hallam AWA?
---Hallam, yes.

PN951

Just before the deed of guarantee. I'm not going to take your Honour to that at the moment but that is where - - - ?---It's towards the end. It's a table that's got a comparison of exactly what's in the certified agreement and then how you actually calculate it in place of that and I think the fact of how much confusion has come out in this submission I think shows a more simplistic model I think is by far much easier for employees to understand.

**** SUSANE ANNE RECHENBERG-DUPE XN MR PARRY
PN952

The final dot point refers to this shift allowance and says that -

PN953

Trainee and operators are worse off than under the EBA.

PN954

The final dot point of the union document I’m sorry?---I think that's the one we did.

PN955

You've dealt with that?---Yes. We're up to I think transfer between sites.

PN956

All right. You're ahead of me. The transfer between sites, it refers here to the EBA protecting employees against unilateral transfers but the AWA allowing Feltex to unilaterally transfer. What are the differences here in practice, in reality?---Well, I'd say that's a misunderstanding of both the EBA and the AWA. The EBA clearly provides for unilaterally temporary transfers. The only time it talks about mutual agreement is a permanent transfer so in fact a temporary - my interpretation of the EBA is you can do unilaterally temporary transfers between sites. In fact under the Hallam AWA there is no provision whatsoever for permanent transfers. That's been abolished entirely and instead of that what we've got is a temporary transfer provision which we talk about relating to Fibremakers. Now, under the EBA it would appear that a Hallam person could have been unilaterally temporarily transferred to Tottenham, Braybrook or the National Distribution Centre on the other side of Melbourne and they could have been required to permanently transfer as well subject to mutual agreement or a dispute resolution process. So I'd say having removed any rights whatsoever to do with transfers to businesses on the other side of Melbourne is in fact a far more favourable transfer provision than their current rights under the existing certified agreement.

PN957

Where is the Fibremakers Australia operation?---It's at Bayswater, which is a lot closer to Hallam than what is Tottenham, Braybrook and the National Distribution Centre.

PN958

The bottom of the page deals with a requirement in the AWA that employees work with management to develop a system of on call access to cover emergency needs. Why is such a system desirable to develop?---Well, at the moment there is no doubt that there is coverage issues at Hallam. At the moment they're using I believe Skilled Engineering people for temporary, to cover things like leave absences and things like that and if indeed we could be doing that more within our existing staff I think it that would preferable ongoing and give them opportunities too.

**** SUSANE ANNE RECHENBERG-DUPE XN MR PARRY
PN959

I have nothing further, if your Honour pleases.

PN960

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Ms Rechenberg-Dupe, can I take you back to page 27 of the main union document, the issue of dismissal and the complaint that the EBA provides protection from unfair dismissal and your response to that I think was it's a prohibited matter and it can't be included in a new agreement, but in any case in your experience any such unfair dismissal claims have been brought under the Act. Is that response affected at all by the changes to the Act which places upon the rights to protection from unfair dismissal a large number of exemptions and restrictions which don't appear in the award provisions, for example, operational reasons?---I must admit I'm not that familiar with the provision in the award so I can't give you an opinion right as of this moment but I can refer to it, have a look at it.

PN961

As I understood it, it was a provision appearing in the ...... page 81 -

PN962

Termination of employment by an employer shall not be harsh, unjust or unreasonable.

PN963

And in fact doesn't include any of the restrictions which appeared even in the Act prior to the Work Choices Amendment?---Because my understanding was that provisions were prohibited as well so there's an issue that they couldn't go in an AWA anyhow.

PN964

In a new instrument, but the union is relying on the existing instrument?---Yes. I'll have a read of it. Can I revert?

**** SUSANE ANNE RECHENBERG-DUPE XN MR PARRY
PN965

Yes, thank you. And my final question and Mr Parry can if he wishes wait until Mr Borenstein has finished to follow up any of these matters. You said in relation to a number of matters clauses formerly in the EBA have been excluded because the law, the general law now provides for those benefits or protections. How is that position affected by the prospect of legislative change by the parliament or indeed by virtue of regulation without recourse by the parliament in some instances, so that there can be no certainty that all those protections would necessarily remain, the legal protections?---There's a lot of - I think you've just got to face those issues as and when you get to them at the end of the day because things we're even uncertain now like the AWA prohibition in the current certified agreement has already been deemed void so things that even happened in the existing certified agreements going forward so I think you must address those as and when they arise. But I think probably one of the key things is a lot of the union things though is that we operate - like our Geelong site is a very unionised workforce and we do respect the rights of the unions. Generally we realise we do have to work with them, it's something that if we're going to go work with our workers, well, we do have to learn to work with them and I think that will is as important as anything and that's why we're looking at things like the deed of employee - confirmation of employee rights and things like that because at the end of the day we realise they do have a legitimate role and we're more than happy to deal with them as far as trying to assist workers and getting through issues.

PN966

Yes. Well, the question I'm directing myself to is whether the terms of employment proposed such as the constituted acceptable alternative employment and the union says, well, certain current agreement or instrument provisions have been removed and you say in relation to some of them, well, that's picked up by the current law, fair pay standard or the health and safety but legislation of course is amenable to change and indeed some aspects of the current Act by virtue of regulation without recourse even to the parliament so that those protections might not continue. Very well. Well, Mr Parry will no doubt address me on that in due course in any case. Very well. Mr Borenstein.

PN967

MR BORENSTEIN: Thank you, your Honour. Your Honour, I wonder whether that computer screen might be moved. I can't see the witness at all and she can't see me and it's probably my loss more than hers.

PN968

THE SENIOR DEPUTY PRESIDENT: We'll see what can be done. That's one problem of technological - - -

**** SUSANE ANNE RECHENBERG-DUPE XN MR PARRY
PN969

MR BORENSTEIN: That might be the easiest problem to solve in this case, your Honour.

<CROSS-EXAMINATION BY MR BORENSTEIN [2.50PM]

PN970

MR BORENSTEIN: Do you mind if I call you Ms Dupe?---Yes, that's fine.

PN971

In your affidavit you depose to the purchase - or the entry into agreement by GHA and Feltex Carpets for the purchase of the business of Feltex Australia, this is in paragraph 2, and you say that it was a condition of the purchase that you would make offers of employment to the employees of Feltex on substantially the same terms and conditions but so that no redundancy or severance payment would be triggered. Do you see that?---Yes.

PN972

Do you agree with me that the easiest course for your company to have taken to meet that would be to simply allow the existing enterprise agreement to continue on across the transmission?---We have asked Ms O'Neil on a number of
occasions - - -

PN973

No, could you just answer my question please. Do you agree that the easiest course for your company to have taken would have been to simply allow the existing agreement to continue on across the transmission?---That may trigger redundancy. No, that isn't the easiest course.

PN974

You say that by allowing the existing agreement to continue on, that that - I'll go back a step. When you say it may trigger redundancy, do you mean that by allowing the existing agreement to continue on, there would not have been a continuation of substantially the same terms and conditions as required by the industrial instruments? Is that what you're saying?---That is not the test under the industrial instruments that relates to redundancy.

PN975

What do you say the test is then?---Well, I think - it's not up to me. I think this action - - -

PN976

No, but you gave an answer - - -?--- - - - is currently deciding whether it's acceptable alternative employment, whether it's substantially on the same terms overall and the aggregate no less favourable or if it's materially different.

PN977

Okay, then, explain to me how you say that continuation of the existing agreement might have triggered an entitlement to redundancy?---Because Ms O'Neil has told me that.

**** SUSANE ANNE RECHENBERG-DUPE XXN MR BORENSTEIN
PN978

I see. That's the sole basis for your opinion, is it?---The union has alleged that because the certified agreement will fall away in 12 months' time due to the Workplace Relations Act and these people's work terms and conditions of employment may revert back to the Australian fair pay standard. That means a transmission is not acceptable alternative employment.

PN979

At the beginning of your evidence-in-chief you gave some opinions about legal effects of various things. You told us you're a lawyer. Do you genuinely tell this Commission that the evidence you gave a moment ago about the continuation of this agreement triggering a potential redundancy entitlement, was based solely on what you were told by Ms O'Neil?---There is a risk.

PN980

Would you answer my question please. Are you genuinely telling this Commission that your opinion was based solely on what you were told by
Ms O'Neil?---I would say that there is most certainly a risk.

PN981

You still haven't answered my question. Was your opinion based solely on what you were told by Ms O'Neil?---No.

PN982

What else was it based on?---Consideration of the industrial instruments.

PN983

Which ones?---The Capital Carpets Redundancy Agreement, the Capital Carpets 1994 Enterprise Agreement, the 2000 certified agreement amongst the Textile Industry Award 1994 and Textile Industry Award 2000.

PN984

What led you on a consideration of those documents to form the view that the continuation of the existing agreement might trigger a redundancy entitlement?
---Because there is prima facie an obligation for redundancy and as we come to this Commission and we seek to have the severance pay waived.

PN985

That's correct. The basis for waiving that severance pay is what?---Whether there's acceptable alternative employment.

PN986

Is it correct that the people who are presently employed in the company that you're purchasing, or the business that you're purchasing will transfer over to your company in the same positions?---That's correct.

PN987

And doing the same work?---That's correct.

**** SUSANE ANNE RECHENBERG-DUPE XXN MR BORENSTEIN
PN988

And being paid the same pay?---That's correct.

PN989

So then the only thing that seems to be outstanding is the industrial instrument that prescribes all that. Is that correct?---That's essentially correct, yes.

PN990

You're saying to this Commission seriously and genuinely that you believe that a Commission could find that it is no less favourable or it's not acceptable alternative employment to continue on under the same instrument that you had the day before the transmission. Are you genuinely saying that?---Yes.

PN991

The reason why you believe that continuing the same instrument beyond the transmission is not acceptable alternative employment is what?---That there is issue as to what at the end of that - whether the fact that this certified agreement will in fact be - I don't quite know what the right terminology is, but they're effectively terminated after 12 months and their rights thereafter are somewhat uncertain, may in fact make them not as advantageous as what they currently are on the current agreement had Feltex Australia remained operating, assuming it was still solvent and able to do that.

PN992

I think I understand that. In order to overcome that problem, you've produced an AWA which may also come to an end at some stage in the future. Correct?---So might all certified agreements.

PN993

Yes, I understand that, but your document does too and have you done any sort of comparison about what these employees will be left with when the AWA expires, as compared to what they will be left with in terms of industrial prescriptions when the current EBA expired, if it was carried over?---Not really.

PN994

You haven't?---No.

PN995

If it transpired that their position after an expired enterprise agreement in 12 months' time was more beneficial than their position after an expired or terminated AWA occurred, would you agree with me that that would indicate that the continuation of the present enterprise agreement was a more beneficial process for those employees?---It would depend upon the employees. There's a lot of what ifs in that. I can't speak for the employees.

PN996

Do you understand that when the enterprise agreement that's presently in place expires, if it's continued on, that the employees would go back to entitlements under the protected provisions of the existing award, together with the fair pay standards?---I haven't looked at it in any great detail.

**** SUSANE ANNE RECHENBERG-DUPE XXN MR BORENSTEIN
PN997

You have no understanding at all about what will happen at the end?---I've not sought legal advice about that particular scenario.

PN998

You're a lawyer, you told us before. I thought that you might have some understanding/---I haven't looked at the scenario.

PN999

Have you looked at the scenario of what somebody is left with when an AWA is terminated?---No, I haven't.

PN1000

You say it's on the basis of the consequences of the coming to an end of the enterprise agreement that you believe it wouldn't constitute acceptable alternative employment?---I'll be honest, my main advice on that scenario was actually from the union themselves.

PN1001

But your opinion is based on the consequences for the individuals in terms of what they're left with after the EBA. Is that right?---I think I've lost the question somewhere.

PN1002

I'll state it for you again and I hope you find it. Your opinion about the unacceptability of the employment is based on what you understand to be the consequences that flow after the EBA comes to an end in 12 months' time?
---Yes.

PN1003

Does that carry with it an assumption that those consequences will be worse than what the people will be left with after an AWA comes to an end, whenever it does?---No.

PN1004

Do you not think that in order to hold the opinion you do about the enterprise agreement it would be reasonable to at least take steps to find out how it compares to the alternative which you're proposing?---No.

PN1005

I would like to ask you some questions about the document that you prepared, the comparison document which is marked exhibit F9. Do you have a copy of that in front of you still?---Yes.

PN1006

THE SENIOR DEPUTY PRESIDENT: Do you still have the union documents before you?---Yes, I do somewhere, I've buried them.

PN1007

MR BORENSTEIN: In the first item, which is the contracts of employment, you may recall that the objection that was taken, or the criticism that was raised by the union was that the AWA that you've provided binds employees to comply with any policies or procedures of Feltex and GHA. At clause 3 of the AWA it's stated that:

**** SUSANE ANNE RECHENBERG-DUPE XXN MR BORENSTEIN
PN1008

The employee will diligently and faithfully perform all the duties and responsibilities of their employment and will be bound by any policies and procedures formulated by Feltex or by Godfrey Hirst for the application at Feltex.

PN1009

Do you recall that clause?---Yes.

PN1010

Your response was that this was an implied condition of existing employment at Feltex in any event and also under their common law contracts?---Yes.

PN1011

Do you recall that? Do you as a lawyer have any understanding of whether - I'm sorry, I'll rephrase that. In terms of the contractual obligation to comply with an employer's policy, do you have any understanding of the remedy which would be available to an employer for breach of such a policy under the contract?---We would normally undertake our disciplinary procedures if someone was breaching a policy.

PN1012

If you treated it as a breach of contract, you would have certain remedies for breach of contract. Is that correct?---Probably.

PN1013

There's no basis upon which you would have any right to seek a penalty under the Workplace Relations Act, is there?---I don't know.

PN1014

Are you familiar with the provisions of the Workplace Relations Act which make it a civil penalty provision to breach a term of an AWA?---I'm not aware of them.

PN1015

You're not aware of it?---No, I'm not.

PN1016

You would agree, wouldn't you, that if by including this provision in the AWA, you were exposing those who failed to comply with your policy to the risk of a penalty of up to $6600 under the Workplace Relations Act, that that would be a significant prejudice or a significant deterioration of their current conditions of employment. You would agree with that, wouldn't you?---If that's your opinion.

PN1017

No, I'm asking whether you would agree that in circumstances where presently people are not exposed to that penalty and where they will be exposed to that penalty under your instrument, they would be worse off under your instrument. You would agree with that, wouldn't you?---If that is the situation by change of where that is compared to an EBA but as I'm not familiar with the provision in the Workplace Relations Act as regards AWAs I really can't compare it to where they are now under a certified agreement.

**** SUSANE ANNE RECHENBERG-DUPE XXN MR BORENSTEIN
PN1018

Are you the person who is responsible at Godfrey Hirst for the preparation of these AWAs? Are you in charge of that process?---Yes.

PN1019

Were you the person who drafted the AWA?---A fair hunk of it.

PN1020

Were you the person who drafted the current version of the AWA which we received this morning? Were you involved in that?---Yes.

PN1021

Was the purpose of that drafting of the AWA to reach a document which you could come to the Commission and say to the Commission that this represented acceptable - the basis for acceptable alternative employment?---That isn't the sole - I think that's a simplistic view.

PN1022

But you do advance this document, don't you, as being the basis for acceptable alternative employment?---It is advanced to that basis, yes.

PN1023

Yet, in preparing that document you haven't taken the trouble to see what effects the various obligations you've created will have on employees under the Workplace Relations Act, have you?---I've sought advice about that situation. I haven't looked at it myself personally.

PN1024

Okay, but you've told us that you have no idea about the consequences of a breach of the policies under clause 3?---And I seek advice about certain issues with which I'm not familiar.

PN1025

You didn't seek any advice about that and you don't know about that?---I've sought advice as to whether this agreement is acceptable alternative employment and what prejudice employees may have. I have sought that advice, yes.

PN1026

If I can perhaps go to the next item in your list which is time recording and about which the complaint is made that the AWA requires an employee to be responsible for recording work commencement and ceasing times, whereas the EBA doesn't. Your answer to that was:

PN1027

Employees presently record time by clocking on and off. It's a reasonable requirement and no change to current practice.

PN1028

Do you see that?---Yes.

**** SUSANE ANNE RECHENBERG-DUPE XXN MR BORENSTEIN
PN1029

Once again, I ask you whether you have given any consideration to the consequences for an employee of breaching that obligation under clause 7.3 of the AWA? Have you given any consideration to that?---Not in the context with which you are now placing it.

PN1030

I gather then that you're not aware of the fact that a breach of that clause might also expose an employee to a possible penalty of up to $6600? You're not aware of that?---If that's your advice.

PN1031

I'm asking you whether you're aware of it?---No. I've already said I'm not aware of that.

PN1032

You would agree, wouldn't you, that if that was the consequence of imposing this obligation under your AWA, that those employees would be far worse off than they were under the EBA. You would agree with that, wouldn't you? It's commonsense?--If that's your interpretation of the Act.

PN1033

Yes, if my interpretation of the Act is correct, you would agree?---That also depends, though, as far as what the situation is with a breach in their current certified agreement which I don't know what that is either as far as breaching a collective agreement either because I don't know whether it's solely AWAs you're talking about or whether it's also talking about breaching collective agreements.

PN1034

No, I'm talking about breaching the clause in the AWA which you have constructed?---But you're comparing it against their current rights under the certified agreement which I don't know that either so I'm obviously not aware as to whether a breach of a collective agreement may have the same consequences as a breach of the AWA.

PN1035

In the document which the union provided to you under this heading and to which you responded, it says the EBA does not contain this obligation. You do not read that?---But the EBA also has the one below that which talks about you've got to be at your workstation ready to start work when your argument when they turn up late they're also subject to a fine of $6600 and that is currently in the existing certified agreement.

PN1036

I'm not sure I know what you're talking about?---The clause under - I'm sorry, I'm answering questions.

**** SUSANE ANNE RECHENBERG-DUPE XXN MR BORENSTEIN
PN1037

Yes, that's right. We're talking about time recording, okay? Time recording, the union has said:

PN1038

The AWA requires an employee to be responsible for recording work commencement and ceasing times. The EBA does not contain this obligation.

PN1039

If I could then move to your response to the criticism of clause 25, I think it still is, or maybe it's 24 now. It's clause 24 now, it's been renumbered. It's on page 21 of the Tottenham AWA and the complaint that's made here was about the additional obligations which the AWA imposes and which are not present in the EBA. Do you recall that?---Yes.

PN1040

This is at the bottom of page 1 of the union document and your response to it is that in relation to paragraph A of clause 24, that this is a legal obligation under the Occupational Health and Safety Act?---That's correct.

PN1041

Can you tell me please why if this is a legal obligation under the Occupational Health and Safety Act it's necessary to include it in the AWA?---We find with employees it pays to have an open and transparent manner of agreements. Often they don't realise what their obligations really are at the end of the day, and to that end we find it's much better to be upfront in what our expectations are than suddenly when they do something, saying to them, "Hey, haven't you read the
250 page Act?" To us, this is just reinforcing the importance of safety. I would have thought the union would have also supported us in promoting safety on this site.

PN1042

Have you also told the employees that by making this an obligation under the AWA that, quite apart from any obligations they have under the Occupational Health and Safety Act, they are once again exposed, by reason of a breach of it, to a substantial penalty under the Workplace Relations Act? Is that part of the open and transparent arrangement with workers that you have?---If that's your interpretation.

PN1043

You haven't told them, have you, that they are potentially exposed to a penalty under the Workplace Relations Act, have you?---If that is your opinion, I will verify that and get my own legal opinion about that.

PN1044

I'm just asking you whether you have told them?---Well, as I've only heard about it today, I think it's been a little bit difficult.

**** SUSANE ANNE RECHENBERG-DUPE XXN MR BORENSTEIN
PN1045

You understand as a lawyer that evidence has to be recorded on transcript. I asked you a question and I would like you to answer it, please. You haven't told them, have you?---No.

PN1046

Thank you. In relation to paragraph B, do you see that the clause reads - this is the clause in the AWA:

PN1047

The employee agrees and undertakes to accept that Feltex will provide any necessary safety training and safety and protective equipment and clothing to enable the employee to fulfil task requirements.

PN1048

Do you see that?---Yes.

PN1049

Why is it necessary for the employee to accept in advance the necessary training and safety and protective equipment that Feltex may provide in the future? Why does the employee have to give up their rights to object to the safety training or safety and protective equipment that Feltex might provide?---Because we have a duty to protect them and to that degree we would accept that if things like there's an area that needs hearing protection, we would accept that they should utilise hearing protection, at the end of the day, if they don't, that we can be held liable for that so we believe that if we provide personal protective equipment, that employees should be using that.

PN1050

The clause doesn't say that the employee will use the safety equipment. That's not what this clause is about. This is an acknowledgment upfront that they accept whatever Feltex will provide in the future, isn't it?---Yes.

PN1051

Why should they give that? How is that fair?---Is that a question?

PN1052

Yes, I'm asking you, how do you say it's fair to give an acknowledgment upfront about the suitability of something that someone else is going to give you at sometime down the track that you don't know about yet?---I don't see how any employee would be at detriment as a result of that.

PN1053

Why doesn't the clause say that Feltex agrees that it will provide all necessary safety training and safety and protective equipment and so on? Why isn't it an obligation on Feltex? Why isn't it framed that way?---I think at the moment where it says Feltex will provide, I think it actually is a covenant on Feltex.

**** SUSANE ANNE RECHENBERG-DUPE XXN MR BORENSTEIN
PN1054

I'm sorry, I didn't hear that?---I said - are you saying do you accept that Feltex will provide it is - it will provide and that's your interpretation.

PN1055

No, I'm asking you, why isn't the clause framed, if it's going to be fair and transparent and open, why isn't it framed that it is Feltex, not the employee, who agrees and undertakes to provide the necessary safety equipment? I mean, after all, it is Feltex that's going to do it. Why isn't there an obligation on Feltex?
---That's your opinion.

PN1056

Do you say there's an obligation on Feltex in there?---It says Feltex will provide.

PN1057

No, it doesn't. It says:

PN1058

The employee agrees and undertakes to accept that Feltex will provide.

PN1059

There's no obligation on Feltex there at all?---That's your interpretation..

PN1060

There's no clause in this document that puts any obligation on Feltex to provide the safety equipment, is there?---We've got very onerous OH and S obligations that I think you're aware of.

PN1061

Under the Act?---We do most certainly.

PN1062

Under the Act, okay. Why is it that under paragraph A it's necessary to translate the statutory provisions of the employees into the AWA but you find it unnecessary to translate the employer's statutory obligations into the AWA? Why aren't you being even-handed?---I would say at the end of the day we - as a company we are very aware of our OH and S obligations. We have quite an extensive policy structure. We have extensive OH and S training undertaken on a regular basis. On the other hand, I would be honest, a lot of employees I don't think do have the same safety awareness and we do like to flag from day one that we do expect people to be promoting safety and I don't believe that's at all - the company should be getting criticised for trying to promote safety and encourage employees to promote safety and I'm disappointed that that seems to be the attitude.

PN1063

Is paragraph 24A the totality of the company's commitment to the promotion of safety among employees?---I think you can have a look at our policies and I think you can see our commitment, so I think that speaks for itself.

**** SUSANE ANNE RECHENBERG-DUPE XXN MR BORENSTEIN
PN1064

You've got policies, presumably you undertake training?---Yes, we do.

PN1065

And instruction on occupational health and safety issues?---We certainly do.

PN1066

It's a high priority?---It is a very high priority.

PN1067

You're saying that despite all of that, despite all of that activity that takes place, that you find it necessary in this clause to impose an additional obligation on the employees in respect of those matters that are already in the Act, but when it comes to the employer, you don't find it necessary to impose an obligation under this instrument?---You believe it's additional. I would also note that generally offers of employment are going out to new employees with whom they don't have an existing knowledge and relationship and even in this case we're going out with new employees that may not know the Godfrey Hirst culture on safety and I think that is important that they know that we take safety very importantly.

PN1068

They will know what to do and they will know how seriously you take it simply by reading clause 24(a) of this document. Is that the position?---I think it assists in reinforcing that commitment.

PN1069

When you distributed the draft AWA to all of the prospective employees in the last few days, did you distribute with them to each of the employees copies of the various policies?---No.

PN1070

Did you distribute with the documents copies of the occupational health and safety policy?---No.

PN1071

Can I go down to clause 25, please. Once again these are what are described as employees' undertakings in your document, by that I mean the AWA and the first of those is an agreement and undertaking by the employee to abide by all policies and procedures within Feltex. I've asked you previously and you've answered my question about understanding the consequences for employees of breaching policies when you impose an obligation like this in an AWA. Is there anywhere in this document a mutual obligation on the part of Feltex for it to comply with all of its policies?---No.

**** SUSANE ANNE RECHENBERG-DUPE XXN MR BORENSTEIN
PN1072

What's your understanding of the redress that an employee has if that employee is aggrieved by a failure of the company, the employer, to comply with its own policy?---I believe you could still pursue it under the dispute resolution procedure.

PN1073

Can I move down to paragraph B, which is confidentiality, and your answer to the objection about that was that you believe that the obligation does not - or you don't believe that the obligation exceeds common law obligations. Is that a view based on your own research of the common law obligations or on advice that you received?---I don't believe that is an unreasonable obligation in light of what is just written there.

PN1074

Do you want me to repeat my question for you?---Yes, please.

PN1075

Is that view that you've expressed in your document, which is that you do not believe that the obligation exceeds common law obligations. Is that a view based on your own researches or on advice that you've received?---On my own hurried response, given that we got this - I only saw this at 4 o'clock yesterday afternoon, the union's submission.

PN1076

You, in the course of communications with the union through the negotiations that preceded this litigation, said that one of the things that you were very concerned about in relation to the existing industrial instruments was that you wanted to have a plain English document at the end of the process. I think that appears in some of the correspondence that's in the affidavits?---Yes, that's correct.

PN1077

Could you please tell me what is meant by the phrase in clause 25(b) to observe confidentiality in regard to his or her duties? How far does that extend and what does it extend to?---I believe it would extend in respect to the issue so far as the duties or information acquired that is confidential in nature, they should observe the confidentiality.

PN1078

You're suggesting that they should observe confidentiality in regard to confidential information?---Confidentiality in regard to his or her duties or information which, if it is something that is confidential in nature, they observe the confidentiality in regard to them.

**** SUSANE ANNE RECHENBERG-DUPE XXN MR BORENSTEIN
PN1079

There are two parts to it. The first part is confidentiality in regard to his or her duties. Does that mean that they can go down to the bank and tell the bank that they're a forklift driver or a carpet tufter or a spinner or something?. Is that all right?---It's confidentiality in regard to meaning it's in regard to the extent to which they are confidential.

PN1080

What you're saying is that you want them to observe confidentiality in regard to confidential information that they've acquired in the course of their duties. Is that right?---Or aspects of their duties that may be confidential in nature. I believe there's currently business processes and things like that that they may be doing things as part of their duties that are confidential in nature.

PN1081

That doesn't say that?---Okay.

PN1082

Do you accept that it doesn't say that?---I believe it is clear enough or is clear as a lot of things in the award, but no, that's fine if that's your opinion.

PN1083

I'm asking you. You're the author?---I believe it does say what I'm saying. Yes, I believe it says that.

PN1084

When employees are offered employment with your company, in due course if they are, is it the intention of the company that those employees would be made some form of offer of employment which they would have to acknowledge? In other words, would they be given a letter saying, "We hereby offer you employment"?---My affidavit has attached to it a draft letter.

PN1085

How long have you been with the company?---I think I started in 2001, about five years.

PN1086

Have you had any experience at all in relation to employment law?---Some.

PN1087

Do you understand that issues about confidentiality are usually found in the context of contracts of employment between people?---Yes.

PN1088

That, even without being spelt out, that there are implied duties of confidentiality in a contract of employment?---That's correct.

PN1089

Can you tell me, please, why it's necessary to include this confidentiality obligation in this statutory instrument where it carries with it a potential penalty for breach?---If you're asking me would I prefer to put this in my letter of offer, I probably don't have a great problem with putting it in the letter of offer rather than the AWA, if that's what you're asking me if you would rather us do it that way.

**** SUSANE ANNE RECHENBERG-DUPE XXN MR BORENSTEIN
PN1090

I'm not asking you anything, I'm just asking you why you put it in the AWA where it carries a possible penal sanction?---I would say the aim behind the AWA originally was to try to have one document that an employee could access which basically set out most of their terms and conditions of employment. If it's the opinion of the union that that would be better met by having a letter of offer - currently with the certified agreements we do a letter of offer that has this sort of obligation in it and then annexe the AWA which doesn't have these sort of covenants in it, that would not be objectionable to the company at all.

PN1091

If you want one document that has all the conditions in it, why have you got a reference to policies which include umpteen other documents which probably most of these people have never seen?---That isn't a reference to policy. That's a reference to complying with policies. That's a very different thing.

PN1092

You said a minute ago that your aim was to try and get these things all into one document. What's the purpose of having all these obligations in one document? What do you see as the benefit of that?---I just think it helps if employees only have to look at one document in order to see what their terms and conditions of employment are.

PN1093

And what their obligations are?---That's correct, and our obligations too.

PN1094

Your obligations too, although we're struggling to find some?---And our obligations too.

PN1095

If that's right, then in order for them to comply with clause 25(a), they have to look at about 30 other documents to find out what their obligations are, all the policies, don't they?---Their obligation is to comply with those policies which I also note - I draw your attention to, that we undertake to publicise and explain the policies existing as well. So we're making a commitment there to do that and I can assure you now that we've already got in train at this stage a communication once we're in - running this business as far as communicating those policies to the employees on site.

PN1096

Yes, I understand that, but for all of that, their obligations are not going to be contained in one document, are they?---I think the general concept is in one document and that is complying generally with procedures and policies.

PN1097

Is that any different than an EBA having a clause which says that this document is to be read together with the 2001 award?---Yes, very different.

**** SUSANE ANNE RECHENBERG-DUPE XXN MR BORENSTEIN
PN1098

In relation to these policies, when the employees sign up on this AWA, if they do, and if they've seen the policies that are there, they know what they're getting into but your company reserves the right to change those policies from time to time, doesn't it?---Yes, that's correct.

PN1099

That can be done unilaterally, can't it?---That is correct.

PN1100

It can be done whether the workers consent to it or not, can't it?---Some policies at least, that is correct.

PN1101

If we look at the policies as they stand today with a view to trying to determine whether the conditions and obligations for which the employees are signing up, are acceptable or whatever other descriptor the Commission decides to use, we can't know whether in a week or a month or two months, those policies will be the same or radically different, can we?---And it's the same situation with Feltex Australia at current, so there is no difference to the current situation where they're complying currently with the Feltex Australia policies so I say it's no different to the current situation they're in now with Feltex Australia.

PN1102

But Feltex Australia doesn't have it as part of their AWA or their EBA, does it?
---Well, I would say it's an implied condition in their terms and conditions of employment.

PN1103

I'm sorry, I didn't hear that?---I would say it's most certainly an implied condition of their employment.

PN1104

Their contract of employment?---Their contract of employment, yes. That's correct, and specific in some - - -

PN1105

You agree, do you not, that they don't appear - the obligation to comply with them does not appear in the EBA?---Not in the EBA.

PN1106

No?---Sorry, I'll correct that. It probably does on some of them because if you look at things like the heat policy, it's referred to in the EBA so there probably are some policies floating around that are referred to in that EBA. You would have to go through it in some detail to work out if there are any policies that are or aren't referred to in that EBA.

PN1107

Do you have the EBA with you?---Yes.

**** SUSANE ANNE RECHENBERG-DUPE XXN MR BORENSTEIN
PN1108

Do you know which clause the heat policy is in?---It's clause - - -

PN1109

Want to have a look at clause 28?---28, yes, they've agreed to update the policy.

PN1110

See the first sentence in the paragraph A?---Yes.

PN1111

It talks about an agreed heat policy?---Yes.

PN1112

Do you see any distinction between having to comply with an agreed policy and an obligation to comply with a policy that can be imposed at the whim of one of the parties?---Yes, but that wasn't the question you asked me.

PN1113

Thank you. Can I go then please to clause 25(c) of the AWA. This is the clause that requires an employee to agree in advance, it would seem, that:

PN1114

Where Feltex is required to investigate a disciplinary incident or complaint involving the employee, it may be necessary to suspend the employee on pay for a reasonable period while investigation is being undertaken.

PN1115

And of course, there's nothing to this effect in the EBA. Can you tell me, please, why it's necessary for an employee to be required to commit in advance to a hypothetical situation which may work to that employee's detriment?---Can you explain why it may work to their detriment?

PN1116

Well, because they may not be able to stay at work?---But they're on pay, so I'm just wondering why you think it's detrimental to be in that situation so I understand the context of the question.

PN1117

Let me ask you, why did you include the clause?---Awareness: I think for employees to be aware that they may in this situation be suspended.

PN1118

With pay?---With pay.

PN1119

Why do they need to be aware of that?---I think it gives them an assurance that suspensions will be on pay and that they will be for a reasonable period, not for an unreasonable period, and only while the investigation is being undertaken.

PN1120

So this is sort of a backhanded way of explaining to the employee all of the obligations of the employer, is it?---I think it's making them aware that these situations can arise.

**** SUSANE ANNE RECHENBERG-DUPE XXN MR BORENSTEIN
PN1121

If that's what it's about, if it's the provision of information, why is it in a clause which requires the employee to give an agreement and undertaking about it? Why isn't it simply, "Be aware that the employer may find it necessary to suspend you on full pay for a reasonable period of time"?---That's your opinion.

PN1122

No, I'm asking you, why is it necessary to put this in as an obligation on the employee to give an agreement and undertaking in advance to a hypothetical situation? What's the purpose of it?---There may be a lot of things, that it may not necessarily be always necessary. There are a lot of things in the award that aren't necessarily necessary, however, they are still there.

PN1123

You're the author of this. I'm asking you why you put this clause in?---A thing doesn't have to be absolutely necessary to be in a document and I think that is very - I don't think that is - the test of what is in a document is, is this absolutely necessary.

PN1124

But what's the purpose of this clause?---I've already answered that question.

PN1125

Do you say this clause, it places any sort of obligation or requirement on an employee?---I've already answered that question.

PN1126

No, I would like you to answer it for me again? Do you say it imposes an obligation on an employee or not?---At the moment we are making them aware that this may occur in which case the belief would be that if in fact they are suspended they are agreeing that that may in fact occur.

PN1127

If a situation transpired in due course and an employee is to be investigated for a disciplinary incident and Feltex said to them, "We're going to have to suspend you on pay," and the employee said, "No, I don't want to be suspended on pay, I want to stay at work because I'm doing lots of overtime and I need the overtime," do you say that Feltex couldn't come to that employee and say, "Well, I'm sorry, mate, you've already agreed in advance that we can do this to you." Is that how it works?---I would have to consider everything on the merits on the case and the particular circumstances.

PN1128

Does this clause prevent an employee from objecting to being suspended if that transpires at some point in the future?---I think we're dealing with a lot of hypotheticals.

**** SUSANE ANNE RECHENBERG-DUPE XXN MR BORENSTEIN
PN1129

No, we're dealing with the application of the clause. Would you please tell me whether it's your intention, as the author of this clause, that it precludes an employee from objecting to being suspended during an investigation?---I'll say it uses the words "may be necessary", that we would have to take into account the particular circumstances of the particular instance as to whether or not it is necessary, in which case it would be a reasonableness test. You can't judge these things in hypotheticals and I think you're very aware of that.

PN1130

Can you please tell me whether there is any room for an employee under this clause, having given the agreement and undertaking in the terms of the clause, to object at a future time if Feltex decides that it's reasonably necessary to suspend the employee?---If it's reasonably necessary, no.

PN1131

Okay, so the employee can't object to it?---Well, they could object. Certainly they could object, but I believe that Feltex would have the right to suspend them, yes.

PN1132

Because the employee has agreed and undertaken to that under this clause?---And I believe they probably would have that right in any case if it was reasonably necessary.

PN1133

If they have it any right, why have you put it in here?---I think I've already answered that question.

PN1134

Can I then go to clause 25(f) which is the operation of company vehicles. Do you see in the last sentence that it refers to traffic infringements?---That's correct.

PN1135

Can you tell me whether a parking ticket is a traffic infringement?---I can't actually give you an expert opinion on that, no.

PN1136

How is Joe Smith who is going to sign this AWA, who hasn't got a law degree, who didn't write this clause, going to know whether he's responsible if he gets a parking ticket, using one of the company's vehicles or not?---I believe he would be responsible.

PN1137

But you said you didn't know a minute ago?---I believe the person who drives the car would be responsible if they parked the car where it shouldn't be because he's technically breached the parking regulations.

PN1138

A traffic infringement does include a parking ticket?---Not that it was necessary under that clause but I would say that a parking ticket would be the responsibility of the person driving the car.

**** SUSANE ANNE RECHENBERG-DUPE XXN MR BORENSTEIN
PN1139

No, no, I'm talking about this clause. Is it a traffic infringement under this clause or not?---I don't know.

PN1140

THE SENIOR DEPUTY PRESIDENT: I'm wondering whether the second sentence is necessary at all, given the employee has agreed without a limitation to obey all traffic regulations and drive in a manner safely and courteously, they couldn't incur a traffic infringement, could they?---Obviously things like that have out of where we actually have had employees who have come to the company and wanted us to suddenly pay speeding fines and things like that. Like, it's surprising a lot of these things have actually been in response to what are virtually misunderstandings between us and our employees and thus we've ended up putting them in in response to what were misunderstandings and that's where - you know, you might say it's in relation to communication, but at the end of the day these have generally been in response to particular situations where we have had misunderstandings with employees. We think it's a lot better to be upfront with what people's obligations are - what the expectations are.

PN1141

The obligation is without limitation to obey all traffic regulations?---Yes.

PN1142

MR BORENSTEIN: It's just your Honour, that this is plain English and yet we can't get through it.

PN1143

You tell us you can't give us an answer to that. Do you agree that there might be circumstances in which an employee of Godfrey Hirst is using a company vehicle and incurs a parking ticket because of the fact that that person is engaged longer than expected in carrying out the duties for the company?---That could happen.

PN1144

Under this clause that person would be liable for that infringement notice?---They would be. It's their responsibility to ensure they move their vehicle and don't end up with an infringement.

PN1145

If they drove their vehicle in a way which didn't obey all traffic regulations, then over and above the penalties to which they might be exposed under the traffic laws, this clause would make them potentially liable to penalties for breach of this AWA as well?---So you're telling me, yes.

PN1146

Was that the intention?---Not that they be fined $6600.

PN1147

But was it the intention that they would be liable for a penalty, whatever the amount, for breaching the AWA?---No.

**** SUSANE ANNE RECHENBERG-DUPE XXN MR BORENSTEIN
PN1148

Going down to paragraph G of the clause, company tools and property, the obligation on the employees is that they use the tools only for the purposes of carrying out their required duties and are responsible for appropriate use of all tools. Did you have an understanding that imposing an obligation like that once again exposed the employees to a possible penalty under the Workplace Relations Act?---If that's your advice, no, I didn't have - I didn't know that was the impact of that.

PN1149

Was it the intention?---No, it was not the intention.

PN1150

Can I take you to clause - to the second page of your document where we're dealing with clause 6, period of operation of the enterprise agreement and where you say - you see your answer to it in the second dot point:

PN1151

The EBA will terminate 12 months from transmission and any replacement agreement will have the same rights of termination as the AWA.

PN1152

Do you see that?---Yes.

PN1153

Can you just explain to me what you mean by that?---Well, my understanding was that even if a union collective agreement or some other form of certified agreement was entered post Work Choices that it would be having the same rights of termination as this AWA and that was based upon legal advice I've obtained, I'm sorry.

PN1154

I'm sorry, I didn't hear the last bit?---I said that's based on legal advice that I - it was my understanding from legal advice.

PN1155

Okay?---I haven't researched it personally.

PN1156

No. Now, going then to the item, Protection of Entitlements, which is at the bottom of page 2 of your document, this is the complaint about the loss of the consultation rights which are present in the EBA. You have responded that this is now prohibited content. When you prepared this response and you said that it's prohibited content, did you take any time to look at whether it would be prohibited content if the current EBA continued in operation?---I don't understand the question.

PN1157

Well, do you have any understanding of whether, if instead of going through all this AWA business, you rolled over the existing enterprise agreement, the consultation provisions would be struck down as prohibited content or would survive?---It would survive the 12 months.

**** SUSANE ANNE RECHENBERG-DUPE XXN MR BORENSTEIN
PN1158

Yes. So the fact that it's prohibited content is only an excuse if we leave aside the idea of rolling over the existing EBA, correct?---It's a limitation on renegotiation of any form of certified agreement.

PN1159

That happens - but it's not a limitation if we have a pre-reform agreement that continues on? That's my point?---But this one only continues for 12 months.

PN1160

Yes?---That's still going to be an issue in 12 months' time.

PN1161

But for the 12 months, there can be a lot of consultation; do you agree with that? Well, I withdraw that. Now, you say that you're intending to provide a similar provision in clause 7 of your Deed of Confirmation of Employee Representation; that's correct?---That's correct.

PN1162

You would agree, would you not - I'll go back a step. Have you compared the obligations or the extent of the obligations that are set out in the four lines of clause 7 with the obligations that are set out in clause 8 of the enterprise agreement?---Yes.

PN1163

You would agree, wouldn't you, that the clause in the enterprise agreement is far more extensive?---On the face of it.

PN1164

Okay. You would also agree, wouldn't you, that this deed is unenforceable by the trade union?---That is correct.

PN1165

There is an objection taken by the union in relation to the protection of entitlements in relation to the choice of fund. Under the EBA, you may recall that there is a nominated fund into which superannuation contributions are to be made?---That's correct.

PN1166

It was the Australian Retirement Fund, now the Australian Super Fund?---Yes.

PN1167

In clause 15.1, you have made provision for contributions to be made to that fund, or such other complying fund as the employee may choose under the Superannuation Guarantee Administration Act?---Correct.

PN1168

You see that? You know, don't you, that under that Superannuation Act, it is permissible for an industrial instrument to nominate a fund?---That's correct.

**** SUSANE ANNE RECHENBERG-DUPE XXN MR BORENSTEIN
PN1169

Yes. Now, could I go to the issue of illness leave, this is under clause 18.3 of your recent AWA?---Yes.

PN1170

Now, in relation to clause 18.3(c) it says:

PN1171

If an employee produces a medical certificate to substantiate an illness or injury, the employee must not return to work during the period covered by the medical certificate.

PN1172

Now, you've said in your answer that the employee should get a clearance certificate from a doctor to confirm well enough to return. It's not clear to me, and I'd like you to explain, please, whether in paragraph (c) of the AWA what sort of medical certificate you're referring to. Are you referring to a medical certificate that states that there is an incapacity for work, or a medical certificate that states that there's a limited capacity for work? Or does it cover everything?---(c) is referring to where you produce a medical certificate, that it's in accord with talk of illness pay, so I'm just - that it would be talking about substantiating an illness or injury, in which respect sick leave - because of absent from work.

PN1173

What was puzzling me was that in your answer you say the employee should get a clearance certificate from the doctor. I was wondering whether (c) is intended to cover a situation where a certificate might be obtained, that the person suffers a particular condition, but is fit for some forms of work but not his usual work?---I think it's very clear that (b) is talking about using a medical certificate to substantiate actual illnesses.

PN1174

(c), you're talking about?---I'm saying (b) - following after (b) as part of clause 18.3, talking about that all employees are required to provide documentary evidence for sick leave, being a medical certificate.

PN1175

Yes?---And then when you're talking about substantiate an illness or injury, I think there's little doubt that that's referring about substantiation under paragraph (b).

PN1176

Okay. All right. Thank you. Now, can I go to the issue of hours of work. This is on page 4 of your document. I'm sorry, just excuse me for a moment.

PN1177

THE SENIOR DEPUTY PRESIDENT: Mm mm.

**** SUSANE ANNE RECHENBERG-DUPE XXN MR BORENSTEIN
PN1178

MR BORENSTEIN: Now, you were asked some questions earlier about references that the union made to casual employees at Feltex. Did I hear you correctly to say that there were no casual employees at Feltex?---None that are subject to the determination in this hearing. At times - we got a bit loose in our language, and I apologise for that. There are currently casual employees at Feltex.

PN1179

Okay, but it's not intended to offer them employment at GLK?---Well, we don't see there being a redundancy situation with those, which is current application here is seeing whether, for the permanent employees, this is actually acceptable alternative employment.

PN1180

I see. In relation to bereavement leave which is on page 6 of your document, the complaint that's made by the union is that the EBA provides an entitlement to five days' bereavement leave on the death of a sibling, and that the AWA removes this. In your answer in the first dot point on page 6 in relation to this item, you say:

PN1181

Five days' bereavement leave not extended to siblings.

PN1182

?---That's correct.

PN1183

Do you mean it's not extended in the AWA to siblings?---That's correct.

PN1184

So you accept that there's that - - - ?---Yes. No problems.

PN1185

Now, going down to the provision about the dispute resolution procedure in clause 23, one of the complaints that the union makes is that the EBA gives the union a role in facilitating the dispute resolution and the AWA removes this role and the union's role is reduced to one of representation or accompanying. Under the EBA, the union has the capacity to initiate a dispute on behalf of a worker and under the AWA it does not. Your answer to that is that this is now prohibited content. You agree, don't you, that if the current EBA were rolled over into the new business, that the union would be able to retain its position in the dispute resolution procedure and wouldn't be excluded by the prohibited content provisions?---The union would maintain its position.

PN1186

Yes. Now, you gave some evidence earlier about the intentions of the company to tender for work which might be governed by the National Code of Practice for the Construction Industry. Do you recall that?---It was discussed, something along those lines. I can't remember exactly, yes.

**** SUSANE ANNE RECHENBERG-DUPE XXN MR BORENSTEIN
PN1187

Well, there are various references in this documentation to complying with the code in various ways?---That is correct.

PN1188

Did you not explain to the Commission that the reason for that was that the company had in mind that it would tender for work which might put it into that arena?---We believed that we may be required in the future to comply.

PN1189

Okay.

PN1190

THE SENIOR DEPUTY PRESIDENT: What's the basis for that belief?---Well, we had basically obtained advice along the lines that there's two reasons - there's one that some of the work we do tender on, we actually tender on laying as well. And particularly on things like large jobs, because a lot of our lays are through retailers they're actually tendering, they're not of enough liquidity or size to tender on a large job, they virtually ask us to tender, even though it's almost like the retailer's tender, but we virtually tender, then they - we subcontract it back to the retailer. There's also a question, the last June draft also extended to material supplied us, and there's - I know - sort of we had discussions with the union that they obtained their opinion that they believed that unless it was the primary part of our job, was providing to government contracts, we didn't need to comply. Our advice was a bit more different in that we believed that provided our primary job was actually supply of carpet, and that is in fact what we were doing, it was likely that we may be required to comply. Because when we actually tender on these jobs, most of the documents we end up signing are standard subcontractor jobs, even if we're just supplying carpet. It's got all the standard stuff about OH&S requirements and whether we go through all that stuff just because we're tendering for labour as well, which it is concerning us that as they're tightening up in standard form contracts, they're going to want warranties that we are co-compliant.

PN1191

Mm mm?---So that - we're keeping a low profile, though, because I'll admit Godfrey Hirst is not compliant either, so we're just - - -

PN1192

So the advice hasn't come from the ABCC or the Department - - - ?---Well, everybody has told us not to apply because it's likely to end up in trouble,
so - - -

PN1193

Don't stick your head up, yes?---So we're keeping a very low profile at the moment.

**** SUSANE ANNE RECHENBERG-DUPE XXN MR BORENSTEIN
PN1194

Yes.

PN1195

MR BORENSTEIN: In the Deed of Confirmation of Employee Representation, clause 8 is headed, "Termination of Deed" and it says:

PN1196

The deed will operate and have effect from the date on which it is first executed and continue to operate and have effect unless and until -

PN1197

And there's 31 May 2009:

PN1198

- or it is confirmed that or required as a condition of tender or supply in a particular project or job, Feltex Carpets must comply with the National Code of Practice for the building industry.

PN1199

So this deed comes to an end when you're told you have to comply with the code?---That is correct.

PN1200

THE SENIOR DEPUTY PRESIDENT: And that's in relation to any job because the code requires compliance in respect of private sector projects - - - ?---At the moment - - -

PN1201

- - - as well in order to be able to tender for a federal government funded project? Is that the - - - ?---Well, at the moment, we haven't been required to be compliant, and as I said, we're keeping a low profile and hoping that we won't be, but we wanted these documents to be that if in fact we were, which we see there being a very real risk that we may in the future be required, that we could actually make ourselves co-compliant.

PN1202

Yes.

PN1203

MR BORENSTEIN: In the clause or the section of your document dealing with issue resolution, attention is drawn to paragraph 23.3(d) which seeks to restrict the outcome for which the Commission can come on a determination of a dispute by reference to the National Code of Practice. Is the intention of that clause that on a dispute that is referred to the Commission for resolution, that the Commission should be limited in what it can do by reference to the requirements of the code?
---It means what that clause says, which is the outcome determined cannot be inconsistent with that code.

**** SUSANE ANNE RECHENBERG-DUPE XXN MR BORENSTEIN
PN1204

So it's intended to restrict what the Commission can do? It can be inconsistent
- - - ?---It could potentially, in certain circumstances. I don't exactly know all the scenarios, you may or may not hit on it, but it could potentially.

PN1205

Yes. Okay. You accept, of course, that there's no such limitation under the existing EBA?---That is correct.

PN1206

Then there is a complaint made that the AWA in clause 23.4(a):

PN1207

An employee who is a party to a dispute must, while the dispute is being resolved, continue to work in accordance with the contract of employment.

PN1208

Your answer to that is that the clause reflects the current situation. But you accept, do you not, that that's not what is reflected in the enterprise agreement that presently applies?---It may not be specifically provided, but the intention most certainly is, I would say, the worker continues to work normally during that period of time.

PN1209

Well, we can speculate about the intention, but do you agree with me that it doesn't appear in the document?---Not specifically.

PN1210

No. Now, you also go on to respond to a complaint that's made by the union about the corporate consultative committee, by saying that it effectively doesn't exist and hasn't met for an extended period of time. Can you tell me what the source of your information for that statement is, please?---I think - I've made inquiries and that's actually from Jenny Anderson, the current HR manager out there who will be giving evidence later today and I'm sure she can verify that.

PN1211

Is that Ms Anderson?---Yes. She'll have a chance to - - -

PN1212

So you know nothing more than what's she told you?---That's correct. I've made inquiries, yes.

PN1213

Now, in relation to the redundancy clause, an issue is raised by the union about the question of pay out of sick leave. In clause 20.2, paragraph (c) on page 17 of the AWA, there is an entitlement on redundancy, for the payment equivalent to the value of sick leave accrued for the preceding 12 years less all sick leave taken over that period?---Correct.

**** SUSANE ANNE RECHENBERG-DUPE XXN MR BORENSTEIN
PN1214

Under the Capital Carpets Agreement, clause 11 provides that the company will pay an employee his or her unused sick leave in full, calculated to the date of termination. Now, do you see that the AWA therefore creates a more restrictive entitlement than under the Capital Carpets Agreement?---I don't agree.

PN1215

Can you tell me why you don't agree, please?---Because in fact if you can only accumulate sick leave to a certain spot, it is effectively capped. The fact of life is under, I think it's 26(d)(i), I think it was, if in fact that is capped, you are paying out in full what is that that has been accumulated.

PN1216

You're talking about clause 26(d) of the '94 agreement, are you?---That's correct, yes. The award. Which is where - - -

PN1217

Of the award I mean, sorry?---That's under which the actual sick leave is being accrued. And I do believe you've got to read it back in line of what is actually being accrued. That designates the accrual rates, it designates - and it actually caps the accrual of that sick leave and I think the fact of life is you are paying out in full what is that person's sick leave accrual.

PN1218

THE SENIOR DEPUTY PRESIDENT: Which page, Mr Borenstein?

PN1219

MR BORENSTEIN: It's on page 94, your Honour.

PN1220

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN1221

MR BORENSTEIN: All right. Well, let me just test that with you, if you don't mind. Paragraph (c) of the AWA says:

PN1222

Payment equivalent to the value of sick leave accrued for the preceding 12 years, less all sick leave taken over that period.

PN1223

?---Yes.

PN1224

Okay. Now, the rate of accrual - I'm sorry, going back to clause 26(d), it says:

PN1225

Sick leave will accumulate from year to year -

PN1226

And that it may be allowed to accumulate from year to year, and that sick leave accumulated in one year can be taken in a subsequent year without diminution of the sick leave prescribed for that subsequent year?---Yes.

**** SUSANE ANNE RECHENBERG-DUPE XXN MR BORENSTEIN
PN1227

And that accumulated sick leave will be available to the employee for a period of 12 years, but no longer, from the end of the year in which it accrues?---Yes.

PN1228

Okay. If you had an employee who is accumulating sick leave year by year for 12 years without using it, at the end of that 12 years, let us say for the purpose of the example the employee accumulated five days' sick leave a year. At the end of that 12 years, the employee would have 60 days accumulated. If the employee, in the years following the 12 years, say for the next 24 years, used five days a year of the accumulated sick leave and at the same time continued to accumulate new sick leave of five days a year, then I suggest to you the position would be at the end of the twenty-fourth year that there would still be the 60 days accumulated - - - ?
---Not on the reading of that clause - - -

PN1229

- - - over the period. You say not - - - ?---Because if you read clause (d)(i), it talks about sick leave accumulates, so that any balance which has not been allowed to the employee, it's clearly assuming that each year, you take it off the current year's entitlement and only that part that hasn't been used in the current year carries forward to the next year.

PN1230

Okay?---You're not taking it off the start, you're taking it off the current year, and it's very clear there, it says sick leave shall accumulate so that the balance of any year that has not been allowed to the employee.

PN1231

I'm sorry, where did you just read that from?---The very first two lines of (d)(i). It is very much saying that you take off the current year's sick leave, comes off that year's accrual and then that's what - - -

PN1232

But what if you accumulate it?--- - - - comes forward.

PN1233

But have a look at the second paragraph, the proviso which says that you can accumulate it for a period of 12 years. What do you say that means?---That means it only carries forward for 12 years.

PN1234

That's right, and what I'm putting to you - - - ?---And once it's been accumulated, it falls off the back.

PN1235

But what I'm putting to you is - I understand that, but in the year before it expires, if you use the days that you had from the first year, you can use those during that year and at the same time accumulate more days for the year in which you operate?---And I'm saying I believe because it's said they've not been allowed, in any year has not been allowed, may be claimed, and I believe that's talking about you're taking it off - every year they take as eight days, you use your first current year's first and then you add it to what's the previous years.

**** SUSANE ANNE RECHENBERG-DUPE XXN MR BORENSTEIN
PN1236

Okay. All right. Perhaps we'll just make a submission about it?---Yes.

PN1237

Now, there were some questions asked of you earlier about the ancillary skills classification provisions?---Yes.

PN1238

Do you accept that under the AWA, that those provisions are lost?---They're not included within the skills classification.

PN1239

Are you familiar with the position of the forklift drivers at Hallam?---Yes.

PN1240

Do you recall that under the ancillary skill classification provisions, they were given a classification at level 3?---They are entirely different in that the actual skills classification for Hallam is all set out in appendix E that specifically provides them to be paid the wage as per appendix E plus a forklift allowance which is actually prescribed within that appendix E.

PN1241

Yes?---So I would say that they are most certainly not obtaining their skill level classification pursuant to that ancillary classification, but are specific position descriptions and specific provisions set out in appendix E to the actual certified agreement which is overriding the ancillary skills classification.

PN1242

What will their position be under your AWA?---I beg your pardon?

PN1243

What will their position be in terms of classification under your AWA?---They're either trainees, operators or supervisors.

PN1244

What classification level will they be on?---At the moment, if you read the Hallam agreement, they're not given a skills classification because the way that the Hallam classifications work is they're given position descriptions and they're designated either as trainees, operators or as supervisors and a particular wage is designated for them.

PN1245

Under your AWA, what will be their classification level?---Whether they're a trainee, operator or supervisor.

PN1246

Can you tell me a level?---They're not a level under the actual certified agreement.

PN1247

Are there - - - ?---I suggest you read the certified agreement.

**** SUSANE ANNE RECHENBERG-DUPE XXN MR BORENSTEIN
PN1248

- - - classification levels under your AWA or not?---They are classified as either trainees, operators or supervisors, in line with their duties.

PN1249

Under your AWA?---That's correct.

PN1250

Okay. Where do we find the classification levels that attach to those two job descriptions?---I think you need to interpret the actual certified agreement which makes it very clear that in fact these people are given a wage rate based upon their actual job and in fact there's a very different classification structure provided for the Hallam workers, and what we've got in our AWA is reflected in the current certified agreement which has the capacity to override the Textile Industry Award 1994 that we've agreed is inconsistent.

PN1251

Yes, but all I want to know very simply is under your AWA, the offer that you're making to these people at Hallam, where does it tell them and us the level at which they are going to be paid?---They'll be given their hourly rate.

PN1252

Well, can you show me where I can find that, please? Do you have the Hallam document there?---I suggest you look at part A of appendix A.

PN1253

Okay. This is at page 23?---That's correct.

PN1254

Okay. Now, tell me which of those various descriptors are the ones that will apply to those people?---It depends on whether they're currently classified as a supervisor, operator or trainee. At which they've actually got set out there very clearly the actual job descriptions that relate to those particular jobs.

PN1255

Are you aware that the question of classification of those employees is currently the subject of a dispute?---I know the union are making allegations.

PN1256

All right. So does that make it a dispute?---With Feltex Australia?

PN1257

Yes?---Yes, it can be a dispute.

PN1258

All right. So on the day that these people are meant to sign this agreement, that is, I don't know, some time before 24 November, what will they be told about the rate of pay that they can expect to receive?---It will be their current rate of pay, but they will be given a clause at the end, like the other employees, that says that clause - further provision, which actually should be 5.3, as far as that it's hereby acknowledged that the employee has an outstanding dispute under clause 30 of the Feltex Australia Enterprise Agreement and will consider in good faith the claim and it can go to a dispute process if they want. Because they are listed in the affidavit of Jennifer Anderson, so the intention is to retain that right in there and we'll go through the dispute resolution process in due course with them.

**** SUSANE ANNE RECHENBERG-DUPE XXN MR BORENSTEIN
PN1259

Now, you were asked some questions about a payment by results system which presently doesn't operate and at page 10 of your document, you say that Feltex would be required to pay the wages as set out in the AWA, even for a payments by result system, and that in that way the payments by result - well, I'm not sure I understand what you're saying there. Perhaps you could translate for me, please? This is the third-last entry on page 10?---I'm just having a look at the award.

PN1260

I'm sorry?---I had - I'm having a look at the award, please, just to - - -

PN1261

That's fine. No problem?--- - - - so I'm familiar with the actual provision.

PN1262

Yes, no problem?---Having read the actual award provision, I don't see any way we could implement a payment by results system anyhow under the current AWA. It's just totally irrelevant.

PN1263

Why do you say you couldn't do it?---Because it's actually talking about changing the way that you'd be paying wages and there's no provision for that sort of change under the current AWA. It provides for payment of a weekly wage.

PN1264

What I'm suggesting, though, I think what the union is suggesting, is that if you institute a process where people have to produce output as on a payment by results system, there is no provision in the AWA to pay them for working in that way. They would simply be paid at the base rate that you have provision for?---I have to pay them for 38 hours of work a week. If they work 38 hours, I must pay them that.

PN1265

That's right?---So how would they be disadvantaged by any sort of structure like that?

PN1266

Well, because a payment by results system truly operating would provide them with a greater remuneration?---Only if we choose to implement one and at the end of - - -

PN1267

I understand that?--- - - - the day, I don't see why - I'd be interested to know whether anyone knows if a payment by result has ever been done in the carpet industry. Like, it's a thing that I would have thought was about piecework and making shirts or suits, not something to do with the carpet manufacturing industry, so I think it's another one of these bad fits, where we're trying to put the carpet industry into something that's aimed at the clothing trade.

**** SUSANE ANNE RECHENBERG-DUPE XXN MR BORENSTEIN
PN1268

But this is in the award for that industry?---This covers clothing. This has not make-up - the part of the classification, they've deleted the bits to do with make-up. This is aimed into a clothing industry as well as carpet. And that's where a lot of these provisions really aren't relevant to our enterprise.

PN1269

All right.

PN1270

THE SENIOR DEPUTY PRESIDENT: I'm not sure how one can implement a payment by results system without payments in any case.

PN1271

MR BORENSTEIN: I'm sorry, I didn't hear that, your Honour?

PN1272

THE SENIOR DEPUTY PRESIDENT: I'm not sure how one can implement a payment by results system without payments in respect of those results.

PN1273

MR BORENSTEIN: No, it's not a - I think the problem is, one uses the name to describe the work process. The complaint is that if one institutes a system where people are being asked to produce a result in terms of output, such as you would get in a payment by results system, but are not being paid for the result - - -

PN1274

THE SENIOR DEPUTY PRESIDENT: It's not a payment by result system in that, is it?

PN1275

MR BORENSTEIN: Because you're not being paid.

PN1276

THE SENIOR DEPUTY PRESIDENT: It's simply performance measurements, the consequence of which is presumably warning disciplinary action or termination, rather than any monetary consequence.

PN1277

MR BORENSTEIN: I think the complaint that's made is that if you are set - if you are set the sorts of standards, the time standards and so on that apply in a payment by result system, then it would be appropriate that you should be paid according to that system and not just the flat rate of pay that you get for working in the ordinary way. I think that's the complaint that's made. Obviously it's not a payment by result system because you're not getting paid, and I think that's the point.

PN1278

THE SENIOR DEPUTY PRESIDENT: Yes.

**** SUSANE ANNE RECHENBERG-DUPE XXN MR BORENSTEIN
PN1279

MR BORENSTEIN: Now, I'd like to ask you a question, please, about clause
- I'm sorry, I withdraw that. I just wanted to ask you a question about clause 18.11 of the AWA which is the jury service. There is an issue here about the remuneration, the differences in remuneration, between the EBA and I think the award and the AWA.

PN1280

THE SENIOR DEPUTY PRESIDENT: Why is there reference here to incentive earnings under any system of payment by result?---Pardon?

PN1281

Why is there reference here to incentive earnings under any system of payment by results, in clause 18.1?---Jury leave?

PN1282

Sorry, that's of the Tottenham Agreement AWA.

PN1283

MR BORENSTEIN: I'm sorry, do you have that clause?---Yes.

PN1284

The relevant clause in the award is clause 29 which is on page 104?---Yes.

PN1285

The remuneration that is received under clause 18.11 of the AWA is the normal wage for the period of jury service?---Yes.

PN1286

And it's said that the normal wage excludes overtime earnings, shift premiums, attendance bonus, incentive earnings under any system of payment by results, travelling time, allowances, penalty rates and any other ancillary payments?
---Yes.

PN1287

So the remuneration that that person would receive for that day would not be the same remuneration as they would have received if they had attended work that day, is it?---It would depend if they were expecting to get shift premiums or overtime, but if they were expecting to receive overtime or shift premiums, it could well be less, yes.

PN1288

No provision is made in your clause for the situation of an employee who is working afternoon and nightshift, and who is required to attend for jury service during the day, is there?---Insofar as - - -

**** SUSANE ANNE RECHENBERG-DUPE XXN MR BORENSTEIN
PN1289

Well, if for example somebody is working nightshift and they're called to jury service during the day, they don't get paid for the nightshift. They have to attend in order to get paid for the nightshift?---Yes, but that would be the same under the '94 award, too.

PN1290

If it's not the same, then it's a significant difference, isn't it?---It's a preferable, more favourable difference for the employee because under the - under 29 of the '94 award, they only get the award classification rate. If they're actually being paid above award, they actually only get the - if they're a skill level 2 and being paid an over-award payment, they only get the straight skill level 2 rate and if it's the award classification rate, it's even lower because currently - I think it's about 14 per cent above - you must be - like this - currently the certified agreement here is substantially over-award at Feltex, so these employees are being paid well over the award classification rate. This clause that's currently in the certified agreement reflects the 2000 award, which I would say was a more favourable test than what the '94 - and that was why we selected the 2000 award as the basis for the jury clause, not the '94 award.

PN1291

THE SENIOR DEPUTY PRESIDENT: Ms Rechenberg-Dupe, I'm a bit confused. When you say over-award payments, are you meaning over-agreement payments?---No, what I mean is over the skill level 2. They've got a lot of skill level 2s there that might be getting an extra $6.09 a week or something like that.

PN1292

Beyond what is prescribed in the Feltex Agreement or the award?---That's correct.

PN1293

So it's over agreement payment, rather than - - - ?---It is. Sorry. That's what it is, and our intention is in this, when we put the wage in, it will include that over-award component and that over-award component will be built into their pay increases in each single pay increase within it too.

PN1294

Yes. Everyone receives over-award payment?---Yes, sorry. I mean over. Yes. It's over skill level 2 or skill level 3.

PN1295

Yes.

PN1296

MR BORENSTEIN: You make reference to the 2000 award. Clause 46 of the 2000 award, this is exhibit 1 to Ms O'Neil's affidavit, your Honour. It's page 98. Clause 46 provides:

**** SUSANE ANNE RECHENBERG-DUPE XXN MR BORENSTEIN
PN1297

An employer must pay an employee who is required to attend for jury service during working hours the difference between the award amount paid for attendance -

PN1298

That is in the jury:

PN1299

- and the amount the employee would have received in respect of the ordinary time had he or she not been on jury service.

PN1300

So if it was a shift, they'd receive shift premiums, if there was an attendance bonus, they would receive an attendance bonus. If there were incentive earnings, they would receive incentive earnings and so on because that would be what they would receive if they hadn't been on jury service?---You're probably correct. I'm sorry.

PN1301

So to that extent your clause is inferior?---But it's more superior to your '94 award, though.

PN1302

Well, you can't have it both ways. It's either that or the other. And if you would go on with the clause you will see on page 108 of the Award in clause 46.1.4 that:

PN1303

Where an employee is working on afternoon or night shift and is required to attend for jury service and is empanelled or is required to remain until the afternoon session of court he should not be required to attend for work on the shift occurring on the same day in the case of afternoon shift or in the case of night shift or on the shift preceding the period of jury service and shall be entitled to reimbursement as indicated above.

PN1304

?---And I think we explained earlier that we believed it was quite clearly implied when you’re called up for jury service you’re not expected to both be on jury and work. It talks about for the same period. We believe it was implied quite clearly that if you’re on afternoon or night you weren’t expected to both work and attend jury duty.

PN1305

But that’s not in your clause, is it?---I don’t believe it needs to be in the clause is what we were saying.

PN1306

Okay, all right. So when somebody goes along to try and enforce this clause against you at some year in the future will they be able to quote the transcript in this Commission as evidence of the clause that mentions nothing about night shift, in fact intends to mean something about night shift?---I believe that clause is quite clear on the face of it.

**** SUSANE ANNE RECHENBERG-DUPE XXN MR BORENSTEIN
PN1307

Okay?---So if you don’t read it that way .....

PN1308

There’s nothing in the clause, you will agree, that says anything about night shift?---If you’re called up for jury duty we’ll make up the difference between their attendance they receive and their normal wage. It is very clear that isn’t saying that’s what matters what shift you’re on or anything. Just if you are called up for jury duty we will make up the difference between your normal working wage and what you get on the jury. It’s not conditional upon you actually having to actually not be able to attend work because it’s during the day. None of those limitations are on our obligation under that clause. Once you’re called up for jury duty you can go to that clause and have the benefit of it.

PN1309

Complaint is made by the union about clause 9.4 of your AWA which is to do with facilities and a contrast is drawn with clause 33 of the ’94 Award which commences on page 133. You have responded to that in your document on page 13 by saying that most of these items are OH&S requirements, facilities are being provided and will continue to be provided. Is there any reason why given that these are matters that are expressly set out in the industrial instrument that you’re seeking to replace why there isn’t a clear obligation spelt out for Feltex or for the employer under the AWA to provide these various facilities?---I think these sort of provisions come out of a different era to a large degree. Like the 2000 Award doesn’t have similar provisions in it and sometimes in moving forward some of these things it use to be like having hot water free of charge, things like that that back in 1960 may have been a big issue. Now in the year 2000 aren’t really no longer the material win that the union got when they originally got hot water on site.

PN1310

Which era does the requirement for a dining room come from and the requirement for a first aid kit?---I can guarantee the first aid kit would be - I’m not going to get into these independents - but I’m saying just generally - - -

PN1311

What facilities? Sorry, is there any reason why none of those items, whether they be from another era or from a current era, are spelt out in clause 9.4 so workers know exactly what they’re entitled to?---Maybe it’s an interesting question as to why they’re not spelt out in the current round of awards that you currently have now.

PN1312

THE SENIOR DEPUTY PRESIDENT: No, if you just answer the question I think, Ms Rechenberg-Dupe?---Sorry. Like, at the end of the day there’s no real reason as such that’s of material concern.

**** SUSANE ANNE RECHENBERG-DUPE XXN MR BORENSTEIN
PN1313

Mr Borenstein, is there any prospect of your finishing with Ms Rechenberg-Dupe by 5.30?

PN1314

MR BORENSTEIN: I would have thought so.

PN1315

THE SENIOR DEPUTY PRESIDENT: Yes. Are you happy to continue on? I won’t say happy. Are you prepared to continue on, Ms Rechenberg-Dupe?---If it’s not half past two in the morning fine, then we’ll keep going.

PN1316

Yes, very well.

PN1317

MR BORENSTEIN: I want to ask you a question please about clause 12.3 of your agreement which deals with the change of shifts. Now, under clause 12.3 it’s correct, is it not, that Feltex, that is the employer, can nominate and direct a change of shifts without prior agreement of the employees or the union?---I’d say for a temporary shift that’s probably the case. I would say that in a permanent one given you’ve got the dispute resolution clause typically in there I probably wouldn’t agree with that interpretation.

PN1318

In relation to the permanent change clause (d) says that the change can be done on giving two weeks notice to the employees and it goes on to say that the employees can then within two days advise you of any difficulties. It’s then for the company to evaluate the information and the make a final decision and advise the employee?---And the employee can dispute that and given you’ve got at least a week in there there is sufficient time whereas the Award doesn’t apply for two days notice of transfer of shift. This is providing quite a lengthy time in that whereby if you do have a dispute you’ve certainly got time for consultation and discussion about it.

PN1319

THE SENIOR DEPUTY PRESIDENT: Ms Rechenberg-Dupe, how can an employee dispute a final decision by the company or a decision the instrument provides for the company as a final decision to be made by them? How could you argue under the agreement any alternate outcome?---I believe if they don’t believe we’ve properly assessed the information and they don’t believe it’s led to a fair outcome most certainly. Like, you’ll get situation where people - - -

PN1320

But ultimately it comes back to a final decision of the company. They can dispute it, you might reassess the material and in some cases you might find they were right, if you like, and change your decision and in others you might simply confirm the decision?---But there are also some circumstances when you are looking at things like family responsibilities and things like that, there may well be something that even if you went to the Commission they may well designate we didn’t have the right to transfer shift. That could well be the case. It’s fairly rare, but we do get those at times. On the other hand I’d say compared to the current situation where even though they sort of talk, there’s something here about talking about the trying to see, or reaching agreement. I just can’t find the right clause in the certified agreement that result of different shifts the matter will be discussed by the corporate consultative committee that doesn’t exist and they’ll agree with the affected employees and determine the most appropriate method of implementation. That’s only a method of implementation. Once that method is agreed upon I’d presume the company could require to transfer shifts exactly the same way probably without the same safeguards and without the benefits of things like ongoing shift loadings and things like that that’s currently guaranteed under 12.3. They didn’t say you’ve got to agree to transfer shift, they’re just saying the mechanism would be seeking to be agreed.

**** SUSANE ANNE RECHENBERG-DUPE XXN MR BORENSTEIN
PN1321

Yes.

PN1322

MR BORENSTEIN: You accept though, don’t you, that there’s a difference between having to agree on something with someone else and someone else being able to seek to review it through a dispute resolution process?---But I would say under the current shift system it doesn’t require agreement by the affected employees to transfer shifts. And if you do believe that is the case I’d like you to draw that to my attention.

PN1323

Well, I’m reading from clause 12 of the enterprise agreement, the EBA, where it says:

PN1324

The parties recognise that in order to meet increased demand increased operations may be required in some areas where a specific need has been identified which may result in different shift conditions for employees. The matter will be discussed by the corporate consultative committee and agreed with affected employees to determine the most appropriate method of implementation.

PN1325

?---And method of implementation, that doesn’t mean - that could well be the criteria which we’re going to decide who we’re going to move. In fact people who are moving may in fact disagree with that.

PN1326

Okay, all right. But do you accept or do you not accept that there’s a difference between someone having to secure the agreement of another party as opposed to being able to make a decision which might be able to be referred off to a dispute resolution?---Not necessarily.

PN1327

Can I also ask you to turn to clause 19 of the enterprise agreement if you have it nearby?---This is the certified agreement or the AWA?

PN1328

The EBA?---Yes.

PN1329

And you will also need clause 7.4 of the AWA?---Actually, I do note that the transfer between sites does have appropriate induction and training actually provided in the clause which I think is not a criticism in the union’s submission.

PN1330

Now, in clause 7.4(c) the company is entitled to require the transfer of an employee to one of the designated sites and in clause (vii) there is a facility for the affected employee to challenge the decision under clause 24. Do you see that?
---Yes.

**** SUSANE ANNE RECHENBERG-DUPE XXN MR BORENSTEIN
PN1331

Compare that to clause 19 in the EBA, clause 19.3 paragraph (b) on page 10 where agreement is required?---Well, I’d say that requirement is contradictory with the concept that it gets referred with the issue resolution procedure. So clearly it would be appearing to envisage under that clause that if agreement can’t be reached it’s then looked at under the dispute resolution procedure and the employee may in fact be made to go, otherwise I don’t know why you’d have an issue resolution dispute procedure. Like, that would appear to be contrary to the idea of mutual agreement.

PN1332

All right. Now, in a similar vein clause 21.2 of the AWA deals with consultation about stand downs at page 19 of the AWA and you’ll see at the foot of page 10 the obligation is to communicate with the employees and their nominated representatives with a view to seeking agreement with the employees and if agreement can’t be reached then the matter may be referred for resolution under clause 24. And then if you go on to clause 22 half way down the clause you’ll see certain issues arise:

PN1333

Feltex reserves the right (subject to clause 21.2, if applicable) to stand down the employee without pay for all or part of the day.

PN1334

If you contrast that with clause 22 of the ’94 agreement - I’m sorry, ’94
Award - at page 82 clause 22(d)(ii)?---Which page is this on?

PN1335

It’s on page 82, I’m sorry?---Yes, no worries.

PN1336

You see that before any stand down can occur there’s a need for agreement under paragraph B and D with the safety valve of being able to take the matter to the Commission in the event of any dispute which is due to a lack of work. Do you accept that the provisions in clause 21 and 22 of the AWA are less advantageous to the employees than this provision in the Award?---No.

PN1337

And why do you say that?---Because under the AWA you’re seeking to reach agreement which is exactly the same under that clause where you’re seeking to reach agreement with them. And in fact if you can’t reach agreement in fact it would go to the Industrial Relations Commission as a dispute. I don’t see how an employee is disadvantaged.

PN1338

But under clause 22 of the AWA hasn’t Feltex reserved the right to stand them down without agreement?---No. It’s very clear in 22 that it says:

**** SUSANE ANNE RECHENBERG-DUPE XXN MR BORENSTEIN
PN1339

Feltex reserves the right (subject to clause 2.1.2, if applicable).

PN1340

Which clearly means that if clause 21.2 applies and hasn’t been resolved you don’t have that right. That’s why it’s subject to 21.2. Or at least that’s the intention to put it there. I’m sorry if that isn’t the way it’s been read, but that’s certainly the intention, was making it subject to that clause meant that you have to go to that consultation and have the agreement reached.

PN1341

I’m finished, your Honour. I have no further questions.

PN1342

THE SENIOR DEPUTY PRESIDENT: Very well. Mr Parry, do you want to
re-examine now?

PN1343

MR PARRY: If your Honour pleases.

PN1344

THE SENIOR DEPUTY PRESIDENT: Yes.

<RE-EXAMINATION BY MR PARRY [5.11PM]

PN1345

MR PARRY: Ms Rechenberg-Dupe, you’ve been asked a few questions about stand downs .....?---I can’t talk generally, but I know that in my whole time at Feltex we’ve never had stand downs and I don’t think it's happened ......

PN1346

....., cleaners, operators and supervisors you were asked about. Do you have the EBA, the Feltex EBA, in front of you? And you were referring to attachment E?
---Yes.

PN1347

I think when you, it appears this bit when you were referring to attachment E, there’s attachment E to the enterprise agreement you were referring to?---Yes, that's correct.

PN1348

And I think it’s page 23 of that. Is that the job definition description you’re referring to?---That's correct.

PN1349

You were asked a number of questions about the 12 year issue and the construction of the agreement and the debate that you had with my learned friend. Do you have any idea of how many employees of a crew of that sort of 12 year sick leave?---Well, I know that 39 of seven employees have less than one year’s accrual of sick leave.

**** SUSANE ANNE RECHENBERG-DUPE RXN MR PARRY
PN1350

Do you have any idea about the numbers that would be affected here?---I suspect it’s quite negligible. If you ..... spare figures of who's got - - -

PN1351

MR BORENSTEIN: Your Honour, she suspects. That’s not evidence.

PN1352

THE WITNESS: No, I have actually done the statistics on this.

PN1353

MR BORENSTEIN: She either suspects or she knows, your Honour.

PN1354

THE SENIOR DEPUTY PRESIDENT: Yes?---Okay, I know.

PN1355

Go ahead?---No, but what I would say is I haven’t done the test of that subtracting one from the other, but as far as what you would ..... worth accrual which is 61 hours times 12 only three employees actually had that much of an accrual at that stage.

PN1356

Thank you.

PN1357

MR PARRY: Now, you were asked questions about the National Code of Practice and you were saying the answer we tender and subcontract the retailer and there’s materials and supplies. And you’re talking we. Now, when you were saying we you’re talking Godfrey Hirst or Feltex?---Godfrey Hirst.

PN1358

What about did Feltex do the same things?---Well, we are our intention is certainly ..... Feltex Systems. In the past they were the business and that’s been very slow of late ..... in a very big way.

PN1359

And you were giving evidence to my learned friend about the requirements for not to become code compliant. What consideration has been given to if there is a requirement to become code compliance how you would deal with the EBA as it currently stands if it’s considered to apply here?---We haven’t ..... re-negotiate with the union.

PN1360

You were asked about traffic infringements and parking tickets. At Godfrey Hirst how many textile employees were required to drive in their normal course of their duties? What sort of numbers?---Because we’ve got a pretty good centre up the road which is actually away from our South Geelong site and our samples, you’re probably talking 20 or so of them I’d say.

**** SUSANE ANNE RECHENBERG-DUPE RXN MR PARRY
PN1361

But do you have any idea about the position at Feltex?---None at all, but I would observe that Feltex has centred on more separate as two different plants and people go first to one plant with more than one site.

PN1362

I have nothing further, your Honour.

PN1363

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Parry. Very well, I might adjourn this matter. Thank you for your evidence, Ms Rechenberg-Dupe?
---Thank you.

PN1364

You may stand down.

<THE WITNESS WITHDREW [5.16PM]

PN1365

THE SENIOR DEPUTY PRESIDENT: I'll adjourn this until 9 o'clock on Monday.

<ADJOURNED UNTIL MONDAY 13 NOVEMBER 2006 [5.16PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #F5 FELTEX CARPETS TOTTENHAM-BRAYBROOK AGREEMENT VERSION 3 PN463
EXHIBIT #F6 FELTEX CARPETS HALLAM AGREEMENT VERSION 3 PN463
SUSANE ANNE RECHENBERG-DUPE, SWORN PN503
EXAMINATION-IN-CHIEF BY MR PARRY PN503
EXHIBIT #F7 AFFIDAVIT OF SUSAN RECHENBERG-DUPE WITH ATTACHMENTS PN511
EXHIBIT #F8 EXECUTED DEED PN514
EXHIBIT #F9 COMPARISON OF FELTEX AGREEMENT AND PROPOSED AWA BY MS RECHENBERG-DUPE PN535
EXHIBIT #F10 GODFREY HIRST POLICIES AND EMAIL AND FACSIMILE DOCUMENTS PN554
EXHIBIT #F11 FELTEX POLICIES PN578
EXHIBIT #F12 2004 DEED BETWEEN BENALLA SPINNERS, GODFREY HIRST AND TCFUA PN618
CROSS-EXAMINATION BY MR BORENSTEIN PN969
RE-EXAMINATION BY MR PARRY PN1344
THE WITNESS WITHDREW PN1364