C2006/3915, Transcript of Proceedings [2006] AIRCTrans 1293 (11 December 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 16226-1

COMMISSIONER CARGILL

C2006/3915

AMCOR AEROSOLS
AND
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION-NEW SOUTH WALES BRANCH
s.496(1) - Appl’n for order against industrial action (federal system).
(C2006/3915)

SYDNEY

2.01PM, WEDNESDAY, 29 NOVEMBER 2006

PN1

MR A FARR I appear on behalf of the company together with MR T WHALE and MS C BREWSTER. Commissioner, I am a legal practitioner and do seek leave to appear before you today. If I can also just note that Ms Brewster is also required in a matter before Commissioner Harrison at 2.30 as well and will be coming in and out between the two matters, so if I can put her apologies in, in terms of her coming in and out on that basis Commissioner.

PN2

THE COMMISSIONER: Yes, Mr Farr.

PN3

MR I MORRISON: I appear on behalf of the Australian Manufacturing Workers Union. With me today is MR S MURPHY the AMWU organizer for the site. I am also supposed to be appearing in the matter before Commissioner Harrison, but I’ve arranged for someone else from my office to make that appearance. As regard to representation if I could draw the Commission’s attention to section 100(3) where it says:

PN4

That all parties must give express consent to that representation.

PN5

The AMWU is of the position that this matter would be best served by the parties themselves resolving it and we would oppose that representation. However, it might be appropriate at this junction Commissioner, if we went off record because I believe Mr Farr has actually a proposal to the Commission.

PN6

THE COMMISSIONER: To put to the Commission?

PN7

MR MORRISON: With regard to proceeding in this matter which may or may not affect whether I press our position with regard to 100(3)(a).

PN8

THE COMMISSIONER: I’m all ears Mr Farr.

PN9

MR FARR: Commissioner, I had mentioned to my friend that the intention of the company was to go into conciliation prior to pressing it’s application for its section 496 order, merely to explore the issues of where the parties are apart. I certainly didn’t indicate to my friend that we would be putting a “proposal” but certainly it was the intention for us to go into conciliation to discuss the various matters at this point in time. The company had hoped that its delegates would be here today given that these were matters that had related to the negotiation of a new collective agreement.

PN10

We put in the writing to the union that that was something that we sought. We’d also made approaches to the appropriate organizer in relation to that. That may curtail the utility of conciliation, but it’s still the company’s position that that is its intention to start with. In relation to representation Commissioner - - -

PN11

THE COMMISSIONER: Well maybe just leave that at the moment Mr Farr.

PN12

MR FARR: I’m happy to leave that.

PN13

THE COMMISSIONER: If we don’t need to have a fight about it we can put it off. I’m happy to hear people mention the word conciliation I’m sure
Mr Morrison, you surely are not going to object to such a course.

PN14

MR MORRISON: We are always conciliatory Commissioner.

PN15

THE COMMISSIONER: Yes, I make no comment. We will go off the record and into conference.

<SHORT ADJOURNMENT [2.04PM]
<RESUMED [2.44PM]

PN16

THE COMMISSIONER: Right I think we are up to discussion about leave. So perhaps Mr Farr if you could address me on that please?

PN17

MR FARR: Thank you Commissioner. The leave is sought under not section 100 (3) as my friend indicated but instead subsection (4) of section 100 that is:

PN18

That a party may be represented by party, solicitor or an agent if the party applies to the Commission to be so represented and the Commission grants leave for that party to be so represented.

PN19

In our submission Commissioner these are matters which go to the root of the structure of the Act. They are very much determined around the issue as to whether particular wording in draft clauses are prohibitive content or deal with prohibitive content. In our submission Commissioner, due to the effect of the industrial action those of a technical nature of the argument in relation to that drafting that a solicitor may be of assistance in this matter. Further Commissioner our submissions relate also to the specificity of the notices which have been served by the union to initiate the industrial action and the confusion and uncertainty that arises from that and again our submission is that a solicitor may be of assistance to the Commission in dealing with those matters.

PN20

As the Commission is aware that the company is also in another matter that is listed before Commissioner Harrison at 2.30 and that the company as presently is here is not represented by somebody from human resources who can actively participate and put forward submissions on its behalf. In order for it to put its best foot forward Commissioner it is our submission that it would be appropriate for you to grant leave for my appearance.

PN21

THE COMMISSIONER: Did you want to put anything Mr Morrison?

PN22

MR MORRISON: Only Commissioner there seems to be anomaly in the Act where 100(3) is very clear on its face. 100(4) does not refer to as an alternative to 100(3) it seems to my reading to flow from 100(3) that if the applicant makes application then the Commission may but only if I would seek if the 100(3)(a) has been met, that the consent is granted by all parties, then and only then, will 100(4) apply. I think that the jury is still out of whether my interpretation or Mr Farr’s interpretation applies, because as I would read (4) would follow (3), not dual with (3).

PN23

THE COMMISSIONER: Do you want to respond Mr Farr?

PN24

MR FARR: Commissioner, in my submission it is quite clear that they are separate and distinct rights to representation. Clearly right (1) is not curtailed by right (3) or right (4) they are to be read independently, and on that basis the Commission does have the power under subsection (4) grant leave where that application is made. I don’t think I can take it any further than that Commissioner.

PN25

THE COMMISSIONER: I must say I find it all very confusing and don’t know who would have drafted it but obviously weren’t very clear. I’m going to grant you leave Mr Farr, but could I make the point that I’m not doing so in relation to the absence of human resources person. If that was your only ground I would refuse because this is the company’s application. It is a large company if it wishes to press matters of this sort it needs to be prepared to be represented by someone other than a solicitor and I don’t think it’s sufficient to say that person may be involved in some other proceedings.

PN26

So if it had only had been on that ground I would have said no. But I take your point that the issues that may be raised are probably your client is best served by having you press it, so on that basis I will grant leave. Now I should point out to people I have another matter at 4 o’clock, so perhaps we can proceed promptly please.

PN27

MR FARR: I certainly will. Commissioner, if I could just state for the record that the state human resources manager’s mother passed away yesterday morning so that has stretched the human resources given the urgency of when these matters come on so perhaps on his behalf I pass that on.

PN28

THE COMMISSIONER: It is your client’s application, Mr Farr, it is not as if you have been dragged here against your will. But I’ve given you leave anyway so I’m only just making the point.

PN29

MR FARR: Certainly Commissioner, I appreciate that and I certainly will take that on board and pass that on to the appropriate people with my client. Commissioner, this is an application under section 496 of the Workplace Relations Act for an order to stop or prevent industrial action. Commissioner, rather than give you an outline of case in this particular matter, in any particular depth can I simply raise that there are two grounds for why we say that the industrial action that is proposed by the AMWU in relation to its members at the Taree site at AMCOR is not protected industrial action.

PN30

The first leg relates to the fact that the union is seeking to include in the agreement matters which in the company’s view, and on our submission, within the Act prohibitive content and the second element to our argument before the Commission today is that the notices lack the requisite degree of specificity under section 441(6) in that they are uncertain as to which employees the action proposed will include. Whether the notices are cumulative and whether they replace each other, and the matters that arise from that. On that basis Commissioner, what I intend to do is to call Mr Whale as a witness and I have provided my friend and yourself Commissioner, in conciliation a witness statement, but on that basis if I could call Mr Whale.

<TONY BRIAN WHALE, AFFIRMED [2.51PM]
<EXAMINATION-IN-CHIEF BY MR FARR

PN31

MR FARR: Thank you Mr Whale, could you please restate your full name and address for the record?---Tony Brian Whale (address supplied).

PN32

What position do you hold with Amcor, Mr Whale?---Operations manager.

PN33

Whereabouts do you hold that position?---At the plant in Taree.

PN34

How long have you held that position for?---For approximately nine months.

PN35

Have you made a witness statement in this matter?---Yes, I have.

PN36

Can I just show the witness? Could you please have a look at that document for me Mr Whale?---Yes.

PN37

Is that your signature that’s on – sorry they’re not page numbered – after paragraph 78?---Yes, it is.

PN38

Is this witness statement in the matter?---Yes.

PN39

This is the truth of the matter?---Yes, it is.

PN40

Commissioner, I have no further questions.

PN41

THE COMMISSIONER: Do you want that marked?

PN42

MR FARR: Yes, sorry Commissioner, would you please mark that.

EXHIBIT #AMCOR 1 WITNESS STATEMENT OF TONY WHALE

PN43

MR FARR: I have no further questions of Mr Whale.

PN44

THE COMMISSIONER: Thank you, Mr Morrison, are you in a position, (a) do you wish to cross-examine and (b) are you in a position to do so or do you need time to consider this? Because I’m aware of the fact that - - -

PN45

MR MORRISON: I’ve just been handed the document and considering I haven’t had an opportunity to discuss with Mr Murphy the content of it, and to verify certain aspects of it and also to read it in conjunction with the application received to marry if you like, with the grounds for the application. So if we could have a very brief adjournment 10, 15 minutes to read the document.

**** TONY BRIAN WHALE XN MR FARR
PN46

THE COMMISSIONER: I don’t think you’d have any problem with that Mr Farr would you.

PN47

MR FARR: No objection Commissioner.

PN48

THE COMMISSIONER: I mean you appreciate the fact that – well I’m aware that you gave that document to Mr Morrison during conciliation, he presumably wasn’t reading it whilst we were discussing the issues, so maybe if we just break and you can let my associate know Mr Morrison when you are free and I might actually take it and read it too, so that I’m in the same position, so we’ll just adjourn for 10 minutes or so.

<SHORT ADJOURNMENT [2.54PM]
<RESUMED [3.12PM]

PN49

THE COMMISSIONER: Yes, Mr Morrison.

PN50

MR MORRISON: Thank you Commissioner for the time I’ve had to review the Amcor 1.

<CROSS-EXAMINATION BY MR MORRISON [3.12PM]

PN51

MR MORRISON: Mr Whale this is your statement isn’t it?---Yes, that is correct.

PN52

When did you prepare this statement, just for clarity?---Over the last couple of days.

PN53

Since 21st of the month, is that correct?---It has been prepared over the last few days.

PN54

The last week or so?---I prepared this over the last two days.

PN55

Okay I’m just curious at the bottom of the page it’s got Whale 21/11/06, I’m just wondering what the significance of that was?---I can’t comment, I don’t know.

PN56

So you didn’t prepare it?---I prepared it, but it was just a saving.

PN57

A random series of numbers?---Yes.

PN58

Fine all right Mr Whale, let’s deal first with your statement, you have a copy there?---Yes, I do.

**** TONY BRIAN WHALE XXN MR MORRISON
PN59

If I can take you through paragraphs 11 through to 19, can you tell us what they are 11 through to 19?---They are departments within the operation that I look after.

PN60

This is the entirety of the Taree site?---Yes, exclusive of administrative staff.

PN61

So you’ve got say 12 for instance, can you explain to us what you mean by paragraph 12?---Paragraph 12 is a casting department and within that department there’s two significant specific areas one is the casting where they melt the aluminium and cast it into strip and the other area is the slug area where they press and eel and rumble the slugs.

PN62

Except for the fact that I have absolutely no idea of what you are talking about. What is the slugs, what is the slug?---Slug is a little aluminium brown disk that we extrude into a can.

PN63

So a can comes from the slug?---Correct.

PN64

The casting is where you manufacture the slugs?---The casting is where we manufacture the strip.

PN65

The strip?---Where the slugs are created from.

PN66

Then further on you talk about the other areas of the site?---That’s correct.

PN67

Just for clarity, 18 you talk about QC that would be quality control would it not?
---That is correct.

PN68

Now on that basis could I then take you to your attachments and specifically take you to attachment 8. Attachment 8 was an intention to take protected industrial action, protected action. You saw that?---Yes I did.

PN69

With regard to that you then received – and that is dated is it not
22 November?---Yes, it is.

PN70

Then attachment 9, dated 24 November that notice was withdrawn?---Correct.

PN71

Attachment 10, again dated 24 November is another notice?---Correct.

**** TONY BRIAN WHALE XXN MR MORRISON
PN72

You have seen this notice?---I have.

PN73

If I could take you to the third part of attachment 10 and it’s got nature of intended industrial action?---Yes.

PN74

It’s got a four hour stoppage of work by all employees engaged as day shift team employees, correct?---Correct.

PN75

THE COMMISSIONER: Can I just stop sorry to stop you Mr Morrison, it might just be the way that my copy has been made up, but I’ve actually got attachment 10 and then it’s just a fax cover sheet.

PN76

MR MORRISON: There’s two pages to that.

PN77

THE COMMISSIONER: The next one I’ve got is attachment 11.

PN78

MR FARR: My apologies for that.

PN79

THE COMMISSIONER: I presume there’s something missing but yes.

PN80

MR FARR: I’m happy to provide you with my attachment 10, which is a three page document which my friend is taking the witness to.

PN81

THE COMMISSIONER: Okay, as I say look it may be that it’s got caught up in something here Mr Farr I don’t know.

PN82

MR FARR: My humble apologies Commissioner.

PN83

THE COMMISSIONER: That’s all right.

PN84

MR FARR: I’ll just get you a copy of what is attachment 10.

PN85

THE COMMISSIONER: As I say all I’ve got is just the cover sheet from the union.

PN86

MR MORRISON: Attachment 11 Commissioner, do you also have three pages of that while we are doing this.

PN87

THE COMMISSIONER: Attachment 11, has two pages and then I have attachment 12.

**** TONY BRIAN WHALE XXN MR MORRISON
PN88

MR FARR: I will also provide you with that copy Commissioner. Can we just make sure the witness has the same number of pages as well as we are going, so we can determine that?---I have all of them.

PN89

THE COMMISSIONER: You’re lucky Mr Whale, maybe mine a special Commission one is it?

PN90

MR FARR: It wasn’t supposed to be Commissioner, let me assure you.

PN91

THE COMMISSIONER: Just going through I’ve got through, I’ve got 8 which has got two pages attached.

PN92

MR FARR: No that should also I think have three pages, it seems to be. Sorry 9 has two pages Commissioner?

PN93

THE COMMISSIONER: Yes.

PN94

MR FARR: 9 should be a single page.

PN95

THE COMMISSIONER: Well I wonder if I’ve got - - -

PN96

MR FARR: Commissioner, could I perhaps give you my copy of the witness statement which I do know is a complete set. I’m able to work through your issues, because I will have the original documents here. Commissioner, I have marked on the front exhibit Amcor 1.

PN97

THE COMMISSIONER: So have I so, I don’t think that will probably matter.

PN98

MR FARR: Thank you Commissioner, and my apologies.

PN99

THE COMMISSIONER: You haven’t made any other marks or so on it?

PN100

MR FARR: I don’t believe I have Commissioner.

PN101

THE COMMISSIONER: Sorry Mr Morrison, now where were you up to, 10 was it? Sorry about that I was rather bewildered.

PN102

MR MORRISON: Yes, the third page of attachment 10.

**** TONY BRIAN WHALE XXN MR MORRISON
PN103

THE SENIOR DEPUTY PRESIDENT: So the third, okay, yes.

PN104

MR MORRISON: You have found the nature of intended industrial action Mr Whale?---Yes, I have.

PN105

A four hour stoppage of work by all employees engaged as dayshift team employees?---Yes.

PN106

Who do you understand that notice applies to?---Well that’s the confusing thing. Dayshift employees include people that are working six to two roster, plus also day shift includes team members that are on day shift as well on a rotating shift.

PN107

Mr Whale what are day workers referred to at your site?---Day workers.

PN108

Mr Whale if I could take you to paragraph 16 of your statement?---Yes.

PN109

Do you refer to them as day workers, or dayshift?---Engineering department are eight dayshift engineers who work Monday to Friday who work a dayshift pattern.

PN110

So you are clear in paragraph 16 the dayshift, that you are telling us for when you read this document that you were confused because you didn’t know whether that meant dayshift as you call them or day workers?---No that’s not correct.

PN111

What’s correct then Mr Whale?---There’s two parts to the engineering department. There’s eight dayshift workers and then there’s two engineers and two electricians who work a dayshift pattern and they are also dayshift workers but on a seven day roster.

PN112

Is it not true Mr Whale that they are all referred to as dayshift workers?---Those guys are on shift pattern seven days a week.

PN113

Are they referred to dayshift workers?---Which ones are you referring to?

PN114

All of them?---No.

PN115

No. If I can refer you back to paragraph 16, you spoke about the two engineers and two electricians?---Yes.

PN116

Who work a dayshift pattern, you refer to dayshift there as well don’t you?---Yes.

**** TONY BRIAN WHALE XXN MR MORRISON
PN117

You see isn’t it true you were absolutely clear exactly who that notice applied
to?---No, I wasn’t.

PN118

Moving on to attachment 11. Again to the third page, could you tell us where you have confusion over as to who this notice of intended industrial action would apply to?---As outlined there is two areas in the casting department. There’s a casting per se in terms of the casting area and terms in the creation of the aluminium strip. Then there’s also the casting, part of the casting department is also the slug and slug press and slug and eel and slug rumbling area which reference to the previous areas as well.

PN119

Now you refer to them in your paragraph 12 as casting department?---The entire casting department yes.

PN120

This refers to the casting department, doesn’t it?---Yes.

PN121

So your casting department is there. This is a stoppage of work by all casting department employees pretty clear?---Does that include all casting department does it?

PN122

Does it say all casting department employees, just so I’m clear that’s what the wording says?---Yes, it is.

PN123

Okay can I take you to attachment 12 do you know who all employees engaged in slug room and slug press are do you?---Yes, I do.

PN124

So you are not confused on that are you?---They are part of the casting department.

PN125

But you know who the employees engaged in the slug room and slug press are, do you not?---Yes, that is correct.

PN126

The last one, and I’m sorry to be methodical on this, and I’m referring of course to attachment 13, the third page, a four hour stoppage of work at the beginning of the normal shift by all team three employees commencing at 6 am. Do you know who the team three employees are, do you?---Yes, I do.

PN127

So you are clear on who that applies to?---I’m clear that there’s parts of team three also in the other orders as well.

**** TONY BRIAN WHALE XXN MR MORRISON
PN128

But you are clear on who this notice would apply to?---Correct.

PN129

Thank you for that. Now moving on to the termination of agreement clause. You mention it in your clause 23, where you call it an agreement continuation clause. Is that correct?---Correct.

PN130

Has the AMWU ever used that term to describe the clause, agreement continuation clause?---As far as I’m aware, yes.

PN131

You’ve actually heard the union use that particular title?---Correct.

PN132

Who from the union would use that title?---Steve.

PN133

Mr Murphy?---Yes.

PN134

Can you take us to any documentation in your affidavit where Mr Murphy refers to it in those words?---Not off the top of my head, but I’m sure if we look through we could probably have a look.

PN135

Because in 25, you refer to Ms Brewster telling you the union wanted a continuation clause in the agreement. Do you not?---Yes, I do.

PN136

But I put it to you that she’s the only person that’s ever actually referred it to you as a continuation clause?---That’s not my recollection.

PN137

In all of the documentation you’ve received from the union though, has it not always been referred to as a termination clause?---I’d have to review all the documentation to comment on that.

PN138

How did the term or the clause that has caused this application how did that clause come about do you recall?---Can you be a little bit more specific in terms of what clause you are talking about?

PN139

The wording, an email you received from Steve, Mr Murphy?---Which one are you talking about specifically?

PN140

I will take you to your attachment that might make it easier for you. Attachment 6?---Yes.

**** TONY BRIAN WHALE XXN MR MORRISON
PN141

Now that’s so we can identify it. It is an email from and it’s signed Steve, which is Steve Murphy is that correct?---Correct.

PN142

It’s to Tony which is yourself, is that correct?---Correct.

PN143

It’s termination of the agreement?---Correct.

PN144

It reads:

PN145

Without prejudice clause for discussion and consideration as requested.

PN146

It says that?---Yes, it does.

PN147

Who requested it?---In terms of the meeting we requested it.

PN148

You requested a clause?---We requested that the AMWU go away and draft up some clause around what they believed to be the safeguards they required.

PN149

Then he says;

PN150

I think this reflects the discussions the and the company’s position expressed at the last meeting.

PN151

He says that, doesn’t he?---He does say that.

PN152

He then says:

PN153

I will be clear this clause is not the AMWUs claim.

PN154

He says that doesn’t he?---He does.

PN155

Because what he has said in the earlier paragraph:

PN156

I think this reflects the discussions and company’s positions expressed at the last meeting.

PN157

He says that doesn’t he?---He does.

PN158

So he in fact qualifies it:

**** TONY BRIAN WHALE XXN MR MORRISON
PN159

But in good faith we are considering the company’s position –

PN160

As he understood it, that’s what he says?---It does.

PN161

So he is saying that the clause termination of the agreement clause, is to his understanding the clause the company was seeking?---That’s what he’s written, yes.

PN162

Then he says:

PN163

You will obviously need your time for your people to review or be comfortable there is to prohibitive content et cetera.

PN164

He says that doesn’t he?---He does.

PN165

And:

PN166

We will not distribute this clause until we have discussed it with yourself when would be a reasonable time to meet and discuss.

PN167

Okay, so bearing in mind the questions that I’ve asked you about the specific email question what do you understand Mr Murphy was doing sending you this clause?---My understanding was that he was sending us this clause post discussions we had at the meeting on 30 November I believe it was around development of safeguards that the AMWU and their members were seeking from the company around the termination of the agreement.

PN168

But what he’s saying there is in fact his understanding of what the company was seeking, not what the AMWU is seeking, but what the company is seeking?
---Well I can’t comment on what he was thinking.

PN169

Well it’s what he wrote, isn’t that how you interpret what he wrote?---That’s not the company’s position.

PN170

I’m sorry?---That wasn’t the company’s position.

PN171

But it’s Mr Murphy’s understanding of what the company was seeking?---You’ll have to question Mr Murphy on his understanding.

**** TONY BRIAN WHALE XXN MR MORRISON
PN172

Would you say that from his email the wording of his email, is what Mr Murphy understood the company was seeking?---It appears to be in his email, yes.

PN173

THE COMMISSIONER: Sorry Mr Whale, I just missed the last bit?---It appears to be what’s in his email.

PN174

MR MORRISON: So you requested and you accepted that you requested that
Mr Murphy send you some document?---Correct.

PN175

Why didn’t you do it yourself?---Because we had gone around and around in circles in terms of all the clauses that we’d proposed to the AMWU and we were seeking what they were really wanting in terms of the safeguards around termination.

PN176

Once Mr Murphy undertook to send this document to yourself, did he do it straight away?---No, he did not.

PN177

Did you in fact not chase him to say where is it, we want it?---Yes I did.

PN178

You pursued him for that wording?---Correct the areas delegates.

PN179

You received it as it is stated in that document – now I’ll just try and find the exact dates so that we can be absolutely clear. You received it on 9 November, is that correct?---Correct.

PN180

When did you have a meeting to have further discussions about that wording?
---With the delegates are you talking about?

PN181

And Mr Murphy after he’s sent it to you?---17 November I believe is the date we met.

PN182

That would be your attachment 7?---Correct.

PN183

You had no communication with Mr Murphy between receiving this on the 9th and the meeting of the 17th?---No, that’s incorrect.

PN184

You’ve had a discussions with him?---I sent Steve an email saying that I would be out of town in Brisbane for three days and therefore would be unable to get back to him and we needed three or four days for our people to review that. So the earliest I could see him would be the Friday.

**** TONY BRIAN WHALE XXN MR MORRISON
PN185

If I can perhaps hand you a copy of that email. Commissioner we will arrange for a copy to be handed out to you, if that’s appropriate, I just don’t have enough copies at the moment.

PN186

So am I to read from that in reply to Mr Murphy’s email of 9 November you immediately sent an email back, or on that same day the 9th as discussed we will need two to three days to review?---Correct.

PN187

I am in Brisbane Monday, Tuesday and Wednesday next week, so the earliest I am able to get to discussing this with my team in detail is Thursday, I would therefore suggest Friday week, as a tentative day to meet?---Correct.

PN188

Then Mr Murphy on the 13th replies:

PN189

I believe that 9 am Friday has been set to discuss this clause.

PN190

?---Correct.

PN191

Did you at any time, send a message or an email or a phone call to Mr Murphy to say Steve I’ve got problems with what you are proposing or words to that effect?
---No I did not.

PN192

Is the title or the subject of these emails, termination clause reflective of our discussions?---Yes, it is.

PN193

It is but you never went back to him in the week that from Monday 13 to Friday 17 to say we’ve got real problems with this, we disagree?---No, I did not.

PN194

You didn’t. In attachment 7 of your document that’s the minutes of a meeting that occurred on 17 November?---Correct.

PN195

If I can take you to the first point, continuation clause/termination of agreement and you’ve got clause provided by the union has been review by Amcor as it was presented, the clause is both not acceptable to Amcor and believed to include prohibitive content?---Correct.

PN196

Then no further feedback was provided by the company in terms of specific elements that are unacceptable or prohibited nor was suggestions for modifications to a proposed clause?---Correct.

**** TONY BRIAN WHALE XXN MR MORRISON
PN197

So you just told Mr Murphy, no that clause is unacceptable to us and we believe it may – or we believe it includes prohibitive content but you didn’t give him any details?---Correct.

PN198

Even though he had, as you acknowledged, written that clause at your request?
---Correct.

PN199

Did you indicate at all any general things apart from the very broad prohibitive content and unacceptable, anything more detailed about why that Amcor were not prepared to accept that clause?---I mentioned that it was Amcor’s belief that they don’t know what’s going to happen in three years time and they wanted to maintain their right to terminate. It’s a right that they wished to have and wanted to maintain.

PN200

So you didn’t say well let’s tweak the drafting, did you say that?---No, I did not.

PN201

You didn’t say, well maybe if we took out this or put a full stop here, we might be able to live with those words?---No, I did not.

PN202

Did you say to him that we don’t want a termination clause agreement full stop?
---No, I did not.

PN203

Is it the position that you want a termination of agreement clause but the wording is what is standing in the way?---Correct.

PN204

Wasn’t this a very good opportunity to achieve that aim?---Debatable, possible.

PN205

You accept from Mr Murphy’s email to you that it wasn’t the union’s claim that he had sent to you, this termination of agreement clause it was in fact his clause that he thought, what he understood to be the company’s position, it wasn’t the union’s position that clause, you accept that?---I accept that he sent me an email saying that.

PN206

Saying that?---Yes.

PN207

So why didn’t you just say to him, look you haven’t quite got what we were looking for go and change it, you didn’t say that did you?

PN208

MR FARR: Commissioner, if I may, I’m just not sure where this takes us in relation to whether this matter is prohibitive content or whether there is any confusion about the notice and the subject matter of the proceedings before you.

**** TONY BRIAN WHALE XXN MR MORRISON
PN209

MR MORRISON: Perhaps I’ll come to the point. I’m quite willing to come to the point, Mr Farr.

PN210

MR FARR: These are matters that relate to the negotiations of the agreement and the various positions that the parties bring to the negotiating table.

PN211

THE COMMISSIONER: Yes, Mr Morrison.

PN212

MR MORRISON: Where did you gain the information that that termination of agreement clause contained prohibitive content?

PN213

MR FARR: Commissioner, I think it’s fair again Commissioner that still doesn’t go to the matters before the Commission whether Mr Whale received legal advice, which would he privileged whether he rang up a help line or whatever he may have done, that doesn’t take us any further down the track of understanding whether or not this matter is prohibitive content or not, which is a matter for submissions or whether or not there is any confusion surrounding these notices. With time in mind Commissioner, I object to this line of questioning.

PN214

THE COMMISSIONER: Mr Morrison?

PN215

MR MORRISON: Commissioner the question I asked was simply who informed Mr Whale that it was prohibitive content. If he feels that he is not able to answer that question or Mr Farr feels it is inappropriate that question be asked, then I’ll withdraw that question, so that we will let it slide from there.

PN216

What was the company’s position with regard to a termination of agreement clause.

PN217

MR FARR: Commissioner, I’m going to continue to press my objection in relation to this matter, this is not an opportunity for the union to cross-examine the company as to what’s negotiating position is, what it’s prepared to do, what it’s not prepared to do. This is an application under section 496 of the Act in relation to industrial action these matters have nothing to do with the content of that application in my respectful submission and to put Mr Whale in a position where under oath he’s required to outline effectively the company’s negotiating strategy is a misuse of this opportunity Commissioner in my respectful submission.

PN218

THE COMMISSIONER: Mr Morrison?

**** TONY BRIAN WHALE XXN MR MORRISON
PN219

MR MORRISON: Did the union as the union put that clause to you as part of negotiations?---Yes, they did.

PN220

They did could you take me to your affidavit where the AMWU takes that clause in attachment 6 and says this is the AMWUs position?---There’s nothing in the submission that shows that, but my recollection we had a meeting on 30 October where we sat down and tried to understand what the AMWUs position was and those were the key points that came back from the delegates and Steve in terms of what they were seeking in terms of safeguards from the company.

PN221

Did you ask Mr Murphy to prepare this clause?---I asked Mr Murphy to prepare some ideas that he had around how they would like that worded, yes.

PN222

So at your instigation, and you accept from what you said it’s your instigation Mr Murphy supplied you with your attachment 6?---Correct.

PN223

In attachment 6 does Mr Murphy make it abundantly clear that it’s not the AMWUs claim but it is as he says earlier, it reflects the discussions and company’s position expressed at the last meeting?---That’s what is stated in his email, yes.

PN224

That’s what is stated in his email. Is there any clauses supplied to you prior to attachment 6 from Mr Murphy in identical terms saying this is the AMWUs claim?---There’s mention in attachment 4 from Steve around proposals for termination clause.

PN225

In attachment 4?---Yes

PN226

Is that where Mr Murphy says:

PN227

We are dealing with the log of claims for Taree termination of the agreement remains unresolved.

PN228

?---Yes and he also proposes some views in terms of that.

PN229

Would that be, on turning the page of attachment 4, would that be those
views?---Correct.

PN230

And that’s it?---I’m sure there’s other documentation available.

**** TONY BRIAN WHALE XXN MR MORRISON
PN231

Well not with us today?---Not with us today no.

PN232

Not that you are relying on to seek the order is that correct?---Correct.

PN233

Was it both the agenda of the company and the union to have in the agreement a clause that dealt with the termination of the agreement?---No, not initially no.

PN234

Not initially, or no absolutely?---No.

PN235

Didn’t you take us earlier to Ms Brewster supplying some words?---That was back in June or something, six months into the negotiations.

PN236

Six months into the negotiations the company actually did put up some thought on the termination of the agreement is that correct?---Correct.

PN237

That was still the company’s position when you were discussing this at the end of October with Mr Murphy?---Correct.

PN238

Ms Brewster’s words or just words dealing with the termination of the agreement?---My recollection of the process there was a sub committee formed which Steve Murphy and Carina were part of to merge the two, the award and collective contract together and coming out of those discussions were discussions around a continuation clause.

PN239

Continuation clause, whose word are they? The only person that we know who has used continuation, words, is Ms Brewster, isn’t that correct?---That’s not my recollection. It’s my recollection that continuation clause has been used by all parties.

PN240

In your document do you concede that the only reference to the term continuation clause by a particular person is Ms Brewster?---On face value yes I can’t without going into a lot more detail.

PN241

Getting to attachment 4 where we were. This is an email dated 26 August 2006. Isn’t that correct?---Correct.

PN242

What’s the subject of this email?---Talking about the continuation clause is my belief.

**** TONY BRIAN WHALE XXN MR MORRISON
PN243

What’s the subject of the email of 26 August from Mr Murphy to Gary Honeysett, with cc to yourself and Ms Brewster?---Garth Honeysett, termination of the agreement.

PN244

Termination of the agreement?---But the email sent previously was the Amcor employees of Taree collective agreement.

PN245

But Mr Murphy is clear, his subject is termination of the agreement and further he is clear termination of the agreement remains unresolved, isn’t that correct?
---That’s correct.

PN246

Then negotiations continue and then the company agreed and the union agreed that the clause contained in the new agreement needs to meet the needs of both parties allowing the right to terminate under certain circumstances. That was agreed at a EBA, EA negotiating meeting, wasn’t it?---The discussions were that we were seeking what the union and the delegates were after in terms of safeguards around the termination, yes.

PN247

The company was seeking it as well?---The company was seeking what the AMWU and the delegates were seeking.

PN248

You are seeking what we’re seeking?---No, we were seeking to understand what their safeguards they required were.

PN249

Then you asked Mr Murphy to supply you with a clause?---Correct.

PN250

Which he did – your attachment 7 – I’m getting circular I know.

PN251

THE COMMISSIONER: Sorry Mr Morrison, I’m going to have to adjourn, we’ll just have to – I don’t know how long this matter is going to take, so you’ll just have to wait I’m sorry.

<SHORT ADJOURNMENT [3.52PM]
<RESUMED [4.16PM]

PN252

THE COMMISSIONER: Yes, Mr Morrison.

PN253

MR MORRISON: Yes, Commissioner.

PN254

Mr Whale, do you recall a meeting of the EA negotiating committee on
30 October 2006?---Yes, I do.

**** TONY BRIAN WHALE XXN MR MORRISON
PN255

In your submission you don't have a copy of the minutes of that meeting, do you?
---I don't believe so, no.

PN256

If I could hand up a copy of those minutes?---Mr Morrison, just while that's happening, the earlier issue that you put to an email that you put to Mr Whale, did you want that marked, you were going to organise for a copy of it?

PN257

MR MORRISON: Yes.

PN258

THE COMMISSIONER: Or do you not want to worry about it? I don't know that it - that was the one about - - -

PN259

MR MORRISON: It's not really necessary I suppose to be marked, your Honour.

PN260

THE COMMISSIONER: Okay, that's all right.

PN261

MR MORRISON: However we may require copies of this document. We don't have spare copies I'm afraid. Well, let's just see how it pans out. We may not need it to be marked..

PN262

Could you identify that document for us, please, Mr Whale?---Yes, it is, yes.

PN263

Yes, that document?---Yes.

PN264

Could you identify it for us, please?---It's the Aerosols Taree EA negotiation meeting, meeting 15.

PN265

Dated 30 October, is that correct?---That is correct.

PN266

If I could take you to the second page of that document and its continuation clause/termination of agreement?---Yes.

PN267

That's correct?---Correct.

PN268

And:

PN269

The company and union agree that the clause contained in the new agreement needs to meet the needs of both parties allowing the right to terminate under certain circumstances.

**** TONY BRIAN WHALE XXN MR MORRISON
PN270

?---Correct.

PN271

Now, if I could take you to the last paragraph of that clause and it reads:

PN272

Steve is to have AMWU prepare some possible points/clauses for review by company for inclusion in document aiming for Tuesday afternoon. The company will then review and communicate with AMWU re further change required prior to agreeing inclusions into agreement.

PN273

Is that correct, that's what it says?---That's what it says.

PN274

Is that, if you like, the genesis for the document that Mr Murphy sent you?
---Correct, yes, I believe so.

PN275

And so he's sending you a document for the company to review and to communicate back to AMWU, being Mr Murphy, re further changes required prior to agreeing to inclusion into the agreement. That's exactly what it says, isn't it?---Yes.

PN276

Did you at any time communicate to Mr Murphy the further changes required?
---No.

PN277

No. And you never agreed to include it in the agreement?---No.

PN278

You agreed to include a termination of agreement clause into the agreement?
---We had some discussions around that, yes.

PN279

Can I hand you up another document.

PN280

THE COMMISSIONER: Just to keep track of this - - -

PN281

MR MORRISON: It's attached to it, sorry.

PN282

THE COMMISSIONER: Okay. I'm just finding this difficult without copies of any of these because I'm having to do it on the run.

PN283

MR MORRISON: I'm sorry.

PN284

THE COMMISSIONER: We can arrange for copies as you go, Mr Morrison, so maybe we can do that.

**** TONY BRIAN WHALE XXN MR MORRISON
PN285

MR MORRISON: Well, this is one document so - sorry. You've got a copy of that document. You might take the opportunity to read the email that's attached to that while we're waiting for the copy to be brought back. While we're waiting, could you just inform us who actually prepares those minutes of the meeting?
---Mr Ron Smith.

PN286

And who's Mr Ron Smith?---Ron Smith is the technical manager at the site in Taree.

PN287

Is Mr Ron Smith there on behalf of the union or there on behalf of the company?
---There on behalf of the company.

PN288

So there's no doubt on the accuracy of those minutes?---Sorry?

PN289

There's no doubt to the accuracy of those minutes?---Those minutes are taken in good faith, yes.

PN290

And if there was some confusion over the accuracy of those minutes is there a process to correct those minutes?---Those minutes are reviewed by Steve and Garth Honeysett who is the chairman of the committee, yes.

PN291

So without any changes you would say that those are the agreed minutes of the meeting?---The ones attached?

PN292

Yes?---I believe so, yes, without comparing it to the ones that I had.

PN293

Commissioner, I just ask that this actually to be marked.

PN294

THE COMMISSIONER: This is the minutes of the meeting of 30 October?

PN295

MR MORRISON: Of 30 October with attached emails, the last two pages.

EXHIBIT #AMWU1 MINUTES OF MEETING OF 30/10/2006 WITH ATTACHED EMAILS

PN296

MR MORRISON: And just for the Commission's clarification, on page 2 there's the continuation clause/termination of agreement that Mr Whale was asked questions and - - -

PN297

THE COMMISSIONER: Yes, and also the last paragraph.

**** TONY BRIAN WHALE XXN MR MORRISON
PN298

MR MORRISON: And the last paragraph in particular.

PN299

THE COMMISSIONER: Okay.

PN300

MR MORRISON: Now, if I could take you to the email from Mr Murphy to Ron Smith, cc Garth Honeysett, dated Wednesday, the 1st, and -

PN301

I have spoken to Garth.

PN302

And then it says:

PN303

The only issue in relation to the clause reading, "As proposed by union delegates, we are seeking three meetings of termination of agreement as safeguards, those being" -

PN304

Do you recall that discussion?---No, I wasn't party to that discussion.

PN305

Now, if I could take you back then to the second page?---The second page of?

PN306

Of the minutes?---Yes.

PN307

There's a series of - there's 1, 2, 3 and a few dot points?---Mm.

PN308

As proposed by union and delegates, they are seeking three meetings of termination of an agreement as safeguards, those being new agreement or majority vote, or by order or direction of AIRC taking into account -

PN309

Do you recall that?---Yes, I do.

PN310

Then Mr Murphy replies:

PN311

To clarify, we were never seeking three meetings of termination. We did jointly discuss three meetings of termination, those being as listed and then AMCOR requested that they maintain their right to terminate. We discussed how that pre reform right if it is non negotiable may be maintained and reflected in the document.

PN312

Do you agree that that's the wording?---Well, that's the wording in the email, yes.

**** TONY BRIAN WHALE XXN MR MORRISON
PN313

What do you understand that to mean?---That Steve was seeking to change the minutes to reflect that his belief that it was the company and the union seeking to terminate the agreement, or put clauses around the termination.

PN314

And the top from Ron Smith, the top email from Ron Smith to Garth Honeysett, cc'd to yourself and Steve Murphy -

PN315

Rather than us take the rest of the week modifying and reviewing minutes how about I issue it as is with Steve's comments attached?

PN316

Is that what happened?---I believe so.

PN317

So these four pages were what was issued as regards the minutes of the meeting of the 30th?---I believe they were put on the noticeboard, yes.

PN318

And that includes -

PN319

To clarify, we were never seeking three meetings of termination.

PN320

?---That's to clarify Steve Murphy's position, yes.

PN321

Yes, as pointed out, as proposed by union delegates, where it says they were seeking three meetings of termination, it's to clarify that point, is it not?---That's Steve's view on the minutes, yes.

PN322

Yes. So the minutes were, if you like, agreed?---No, they were not agreed. If they were agreed we would have changed the minutes.

PN323

But didn't Mr Smith, to save modify and reviewing minutes, he took the option how about I issue it as with Steve's comments attached?---I can't comment on what Mr Smith's thoughts were but my recollection of the process was that I disagreed with Mr Murphy's comments and believe that the minutes to be a true and accurate reflection of what was discussed and - - -

PN324

And Mr Murphy clearly did not, do you agree with that?---He did not, correct.

PN325

Yes. So what would be the normal procedure if there was a conflict as to the accuracy of the minutes?---We would show the difference in opinion.

**** TONY BRIAN WHALE XXN MR MORRISON
PN326

Which is how Mr Smith achieved that by issuing Steve's comments attached?
---Correct.

PN327

Do you understand why Mr Murphy objected to that?---No, I don't.

PN328

Well, is it so that all union members who would see these minutes without
Mr Murphy's further comments might get the wrong impression as to the union's position?---I can't comment. I don't know what Mr Murphy's thoughts were.

PN329

Well, I put it to you that wouldn't that be a logical explanation as to why he sought the minutes to initially be changed?---It appears logical, yes.

PN330

So we have as a result of this meeting of the 30th Mr Murphy going away, preparing a document to be sent to the company on, as you put it in this way, continuation clause/termination of agreement you, according to the minutes, and there's no change from your version of the minutes, you undertook to review and communicate further changes required. Mr Murphy, after you chase him and I acknowledge that, in your documents you chased him for it, he sends you as what you show as attachment 6?---Correct.

PN331

Mr Murphy in attachment 6 makes it very clear -

PN332

This clause is not the AMWUs claim but in good faith we are considering the company's position.

PN333

And he sends you then this termination of agreement clause?---Yes.

PN334

Do you accept that, that's what it says on its face?---Yes.

PN335

He sends it to you?---Correct.

PN336

You then meet again on 17 November with no correspondence to Mr Murphy or no communication to Mr Murphy as to any changes sought to that clause?
---Correct.

PN337

And simply say that the clause as it was presented is not acceptable to Amcor, Amcor believed it included prohibited content. You provided no details?---That is correct.

**** TONY BRIAN WHALE XXN MR MORRISON
PN338

That is correct. The world moves on. We have now issued you with protection action notices?---Correct.

PN339

Do you accept that?---I accept that, yes.

PN340

And your case is that the union is seeking prohibited content?---Correct.

PN341

What is the union seeking that's prohibited content?---Can you please explain a bit further?

PN342

Well, you're saying in your document, AMCOR1, just so I'm clear, that the union is taking industrial action over prohibited content?---Correct.

PN343

What prohibited content are we taking industrial action over?---I think as explained by Mr Farr early this morning or this afternoon it was over the reference to the negotiation on the proposed clause and also the reference to the potential for AWAs.

PN344

In that clause that Mr Murphy sent to you at your request that's not part of the AMWU claim. He did it for you at your request, that you chased him for, he sends you this claim, it's not an AMWU position. He did it for you at your request and somehow you now see that as the AMWU seeking to make a claim, is that correct?---Correct.

PN345

No further questions, Commissioner.

PN346

THE COMMISSIONER: Mr Farr, did you want to re-examine?

PN347

MR FARR: Just a few matters, Commissioner, if I may.

<RE-EXAMINATION BY MR FARR [4.33PM]

PN348

MR FARR: Mr Whale, if I could get you to attachment 4 of your witness statement and in particular in relation to page 2. There's an email there from Garth Honeysett about two thirds of the way down the page, who's Mr Honeysett, Mr Whale?---Mr Honeysett is the head delegate and the chairman of the EBA committee.

PN349

And what does his email state to Steve Murphy on 25 August?---It says:

**** TONY BRIAN WHALE RXN MR FARR
PN350

Hey, Steve, here's the agreement that Amcor has presented to the employees to vote on. Need your reply on the continuation clause.

PN351

So that's discussions between the two parties of the union, the organiser with lead delegate talking about a continuation clause?---Correct.

PN352

MR MORRISON: I object to that question. That's a conclusion that's drawn not from the matters that were raised. The continuation clause referred to is earlier and it's important for Mr Farr to draw that conclusion from the witness.

PN353

THE COMMISSIONER: Did it arise out of cross-examination, Mr Farr?

PN354

MR FARR: It certainly did. My friend made a lot of issue about whether or not whether there was any part within Mr Whale's witness statement where the union make reference to "Continuation clause".

PN355

THE COMMISSIONER: Yes, I realise that but yes, go ahead.

PN356

MR FARR: Thank you, Commissioner.

PN357

My friend handed you AMWU1 which was the minutes of 30 October. If I could take you to page 2, those minutes, the heading of the clause there again is Continuation Clause/Termination of Agreement?---Correct.

PN358

And in any of the correspondence that you have received from Mr Murphy or any of the other union delegates that you've been dealing with in relation to this, have they sought to correct that part of the minutes related to that heading?---No, they haven't.

PN359

If I could take you then to your attachment 7, about the first clause again, what is the heading of that particular part of the minute?---Continuation Clause/Termination of Agreement.

PN360

And again, has Mr Murphy or any other delegate on behalf of the union sought to correct those minutes in relation to that heading?---Not as far as I'm aware.

PN361

Now, my friend asked you some questions in relation to the union's position and when the discussions around the content of their proposal. Could I take you to paragraph 52 of your witness statement, Mr Whale? Could you tell the Commission about what - please read that clause?---

**** TONY BRIAN WHALE RXN MR FARR
PN362

I then said that I understood the union's position - - -

PN363

Excuse me, sorry, to yourself, Mr Whale. I apologise. So Mr Whale, what was the union's position - sorry, let me take one step back. Around what time was this union's position put to the company?---In and around 14 October.

PN364

And what was the position that was being put by the union at the time to Amcor?
---That they wanted us to give up our unilateral right to terminate the agreement.

PN365

And then I think your evidence is that you met again on 30 October 2006?
---Correct.

PN366

My friend has taken you to those minutes and also to the emails sent from
Mr Murphy to Mr Smith. Do you have AMWU1 with you?---Yes, I do.

PN367

You attended this meeting?---Which meeting was that, sorry?

PN368

The meeting of 30 October?---Yes, I did.

PN369

And you were there for the whole of the meeting?---I was.

PN370

And what's your view on the minutes and Mr Murphy's correction in his email?
---My understanding, that the minutes were a true and correct reflection of the meeting and they stood.

PN371

So you don't agree with Mr Murphy's email then of 1 November?---Correct.

PN372

And in relation to attachment 6 of your witness statement, it's an email from
Mr Murphy to yourself, what's your opinion of - please read the first two paragraphs to yourself, what's your opinion of Mr Murphy's position as opposed to what is the company's position on that matter?

PN373

THE COMMISSIONER: Sorry, Mr Farr, was that 6, was it?

PN374

MR FARR: Sorry, attachment 6, Commissioner.

PN375

THE COMMISSIONER: It was. Yes, thank you.

PN376

MR FARR: The first two paragraphs of the email from Mr Murphy to
Mr Whale?---Could you please repeat the question?

**** TONY BRIAN WHALE RXN MR FARR
PN377

Certainly. What's your position - sorry, what is the company's position on what Mr Murphy has said in - sorry, excuse me, Commissioner, if I may withdraw that. What is your position, Mr Whale, in relation to those first two paragraphs outlining Mr Murphy's email to you?---My position was that Mr Murphy was positioning it to ensure that Mr Murphy was positioning it to ensure that whatever was written below was not deemed to be prohibited.

PN378

And was what was written below the company's position in relation to the continuation clause?---No.

PN379

And was that proposed by the company as its position in relation to the continuation clause?---No, it was not.

PN380

Finally, Mr Whale, if I could take you to attachment 8 - excuse me, attachment 10, I apologise. I think your evidence there was some discussion about day shift team employees if you recall?---Correct.

PN381

Could you list for the Commission who you considered to be day shift team employees?---Day shift employees would be people, the engineers that work Monday to Friday, the one QC person who works Monday to Friday, the five day shift that currently runs the slug presses, there's another shift that runs it as well, and one productivity improvement coordinator who works Monday to Friday.

PN382

And are there employees who work on the can line who work day shift?---Yes, they do.

PN383

Okay. And that's a rotating shift that comes onto day shift?---Correct.

PN384

And so the employees that are covered by that definition in attachment 10, are they also covered by the definition, if I take you to attachment 11, casting department employees?---Yes, they do.

PN385

So at this stage, Mr Whale, the casting, if attachment 10 includes casting department employees, there is a possibility of industrial action on Thursday,
30 November 2006 under attachment 10?---Correct.

PN386

And the possibility of industrial action under attachment 11?---Correct.

**** TONY BRIAN WHALE RXN MR FARR
PN387

Do you know whether attachment 11 replaces attachment 10 in terms of notices?
---I’m not aware if so, no.

PN388

Or whether it's cumulative, do you know whether that's the case?---No, I do not.

PN389

Commissioner, I have nothing further.

PN390

THE COMMISSIONER: Thank you, Mr Whale, you can be excused.

<THE WITNESS WITHDREW [4.42PM]

PN391

THE COMMISSIONER: Do you have any more evidence, Mr Farr?

PN392

MR FARR: No, Commissioner. Thank you, Commissioner.

PN393

THE COMMISSIONER: Did you wish to call any evidence, Mr Morrison?

PN394

MR MORRISON: Well, Commissioner, I would like to call Mr Murphy and I understand Mr Farr had some objections, but it would be simply as rebuttal to points raised in cross-examination by Mr Whale. I realise Mr Murphy has been with us the entire time and I'm not sure how the Commission would view that.

PN395

THE COMMISSIONER: Well, no objection was raised at the beginning I suppose. Maybe I should have asked whether you were intending to call evidence. Do you have a problem, Mr Farr, if it is only in relation to whatever those points of rebuttal are?

PN396

MR FARR: I accept that Mr Murphy needs to give instruction to Mr Morrison in this matter and so it's not inappropriate that he did sit through that particular part of the evidence of Mr Whale and so, no, I don't press any objection.

PN397

THE COMMISSIONER: It's one of those sort of, I suppose, if it had been the other way you probably would have been in a similar position perhaps with - - -

PN398

MR FARR: Yes. We don't press any objection.

PN399

THE COMMISSIONER: Okay, thanks. Well, in that case did you want to call Mr Murphy?

PN400

MR MORRISON: Yes, Mr Murphy.

<STEVEN JAMES MURPHY, SWORN [4.43PM]
<EXAMINATION-IN-CHIEF BY MR MORRISON

PN401

THE COMMISSIONER: Yes, Mr Morrison.

PN402

MR MORRISON: For the record could you please give us your name, your address and your occupation?---Steven James Morrison, (address supplied), an organiser for the AMWU based out of the Newcastle regional office.

PN403

THE COMMISSIONER: Sorry, Mr Murphy, can you speak up a bit?---Sure.

PN404

I can't hear you very well, sorry.

PN405

MR MORRISON: Could you further tell us in your occupation your involvement with the Amcor Aerosol site at Taree?---I'm the organiser that looks after and has responsibility for the Amcor Taree site.

PN406

Thank you. Mr Murphy, if I could give you a document and it might be appropriate to - it's a document that's in AMCOR1. Could you identify that document for us, please?---That was the minutes that were sent to myself from Ron Smith from the meeting dated 17 November.

PN407

These are the minutes of that meeting?---That were recorded by the company, yes.

PN408

Has the union agreed to these minutes?---No, I sent on two occasions, I sent Ron an email saying that I objected to a number of things, they were inaccurate. One of them simply was that I wasn't on the attendees list and there was a number of other dot points. The delegates have also reviewed the clause and informed Ron that they reject the minutes outright.

PN409

Mr Murphy, have you seen copies of the intention to take protected action at the site that had been issued by the union to the company?---Yes, I've seen copies of those.

PN410

Are you in any confusion as to who and when they applied?---I'm in no confusion as to which parts of the plant, which departments they apply to and which employees are affected.

PN411

You don't work exclusively at that site, do you?---No.

**** STEVEN JAMES MURPHY XN MR MORRISON
PN412

But are you able to clearly identify each site and each individual if necessary?
---I'm aware of the different departments, the different shifts that people work on, the different teams for the can lines, the casting, the slug room, et cetera, et cetera.

PN413

Lastly, you're aware of the document contained in attachments 6 which was the email that you forwarded to the company as termination of agreement. And it might be appropriate if I could perhaps give Mr Murphy a copy. I'm not sure whether - - -

PN414

THE COMMISSIONER: Just a separate copy. Do you need a copy,
Mr Morrison, because I think I've got a spare here?

PN415

MR MORRISON: Well, if that spare could perhaps be given to Mr Murphy it might be more appropriate.

PN416

THE COMMISSIONER: The only thing is I have put a question mark at the side but I don't think there's any difficulty. It was only - - -

PN417

MR MORRISON: Well, we have a clean one.

PN418

THE COMMISSIONER: That might be better, yes. It was just in conciliation you might remember, Mr Farr, when you were outlining the difficulties I just put a question mark at the point for my own point.

PN419

MR FARR: No problem, Commissioner. Yes, of course.

PN420

THE WITNESS: Yes, I'm familiar with that clause.

PN421

MR MORRISON: The first two paragraphs of that email that was sent on
9 November from yourself to Tony?---Yes.

**** STEVEN JAMES MURPHY XN MR MORRISON
PN422

What did you mean by those two paragraphs?---Whenever we were going down the line of discussing an issue that we were at poles apart I guess you'd say around an issue, we would have some discussion without prejudice about what a middle ground would be. For instance, when we first started talking about the agreement we wanted the award to underpin it as a separate document, the company wanted a single document. We met in the middle without prejudice discussions. We developed a document which has got a part A and a part B, a single document where we were both happy. In relation to termination of the agreement we had a clause that we drafted up earlier on similar to the EDI clause. The company had a position where they weren't prepared to give away their right to terminate and we'd had some discussion about how termination might take effect and my understanding of that discussion was the company wanted to retain their pre reform right, so once again I drafted up an email that was a without prejudice, here's some wording that you've requested from me, it's not our claim, we've still got our claim over here, you've still got your claim, here's the clause for your consideration and we'll discuss it at the next meeting.

PN423

And this was not the first time that you had come up with a - you did describe it as a middle ground wording?---This was the first time that we were putting wording together for the middle ground but there were occasions where we have proposed wording in the past but Amcor was in control of the final wording of the document because they're the ones that have got to lodge it and are liable for any fines if there was prohibited content included.

PN424

You say in the second paragraph:

PN425

I'll be clear, this clause is not the AMWUs claim.

PN426

?---Yes.

PN427

Was in this email the first time you made that point with regard to the termination of agreement clause?---In relation to the termination of agreement clause, well, this was never our claim. This was a clause that I was asked to develop out of the discussions from the previous meeting which I believe was 30 November and I used the minutes - - -

PN428

That would be 30 October?---30th, sorry. 30 October and I used the minutes as the map to draw up the clause, as was the discussion between all the parties sitting at the table when it was written on the whiteboard.

**** STEVEN JAMES MURPHY XN MR MORRISON
PN429

Was it ever the AMWUs position to have a clause like the one below?---No, this was developed at the company's request to develop a clause for their consideration because they were requested that Aaron Neilson draw it up. That came from the company, for Aaron Neilson to draw up a clause for their consideration to simplify the process, I think were their words.

PN430

And following your delivering this clause to the company what was your expectations of what would be the next steps?---The impression I got from the
30 October meeting was that there was an agreement in principle around how the middle ground would be drafted, what would be contained within that middle ground if it was to be a clause. We go away and draw up some wording and flick it their legal people. If it's all okay that's the middle ground we're going to go agree or disagree. That's my understanding of the reasons behind it, trying to find that middle ground if we could.

PN431

But once you sent this clause to Tony Whale what did you expect to happen after that?---I was expecting one of two things. One was that they would agree with the clause, or secondly, that they would identify parts of the clause, and I've spoken with the company since in relation to this, parts of the clause that were not palatable or were more than what they believed was reasonable.

PN432

Did they ever get back to you?---The only meeting we'd had, formal meeting, was the meeting where the company claimed that it was unacceptable and believed it contained prohibited content.

PN433

But they never told you why?---No, they couldn't go into any detail.

PN434

No further questions, Commissioner.

**** STEVEN JAMES MURPHY XN MR MORRISON
PN435

THE COMMISSIONER: Mr Farr, did you wish to cross-examine?

PN436

MR FARR: I do, Commissioner, but I'm just wondering if I may take a brief adjournment of a moment just to take some instructions from my client before embarking on cross-examination, only two minutes at best, Commissioner.

PN437

THE COMMISSIONER: Yes, okay. We'll just adjourn for - it might be best to just adjourn for five minutes then. Thank you.

<SHORT ADJOURNMENT [4.52PM]
<RESUMED [4.56PM]

PN438

THE COMMISSIONER: Yes, Mr Farr?

PN439

MR FARR: Thank you, Commissioner, for that indulgence.

<CROSS-EXAMINATION BY MR FARR [4.56PM]

PN440

Mr Murphy, if I could just take you to - I believe that you have your email from yourself to Mr Whale of 9 November in front of you?---I do.

PN441

In relation to that particular clause that you have proposed in that email?---Mm.

PN442

So I take it from your evidence that this is not the union's preferred position in relation to termination of agreement?---This is not the union's claim in relation to termination of agreement.

PN443

So your evidence is that this represents the company's claim in relation to termination of agreement?---As I identified to Mr Smith in an email, the union were never seeking three methods of termination. That came out of discussion
- some of those were introduced by the company, the methods of termination. I was charged with the task, and asked at that meeting to have Mr Neilson draft up a clause for Amcor's legal people to consider and my understanding, the rationale behind that was to simplify the process, so I got the impression from that meeting that it was agreed in principle that we were going to have some middle ground around the discussions and the notes that were put on the board. Mr Neilson draft up a clause, your people have a look at it, if there's no prohibited content and it pertains to the relationship, it gets the tick.

PN444

Do you accept that this particular clause has prohibited content?---I don't accept it has prohibited content and I'm yet to have any part of it that's to be identified as prohibited content.

**** STEVEN JAMES MURPHY XXN MR FARR
PN445

Now, have you been, or do you have any knowledge of the negotiations between the AMWU and EDI Rail in relation to a new collective agreement?---As a matter of fact, I do.

PN446

Why do you have that knowledge, Mr Murphy?---I was the organiser that looked after EDI Rail.

PN447

Was it the AMWU's position that it sought a clause in the agreement in relation to termination of employment?

PN448

THE COMMISSIONER: Agreement probably, is it, Mr Farr?

PN449

MR FARR: Excuse me, I apologise.

PN450

THE COMMISSIONER: You said termination of employment. You
probably - - -

PN451

MR FARR: I probably did. So small faux pas, I have no doubt that that would be one of the clauses. I do apologise.

PN452

A clause in relation to termination of the agreement?---That was correct.

PN453

Thank you. That was a matter that the union ultimately sought a secret ballot application before the Commission?---Yes.

PN454

As a result of a decision, the union has redrafted its clause in relation to termination of the agreement?---My understanding was the clause as drafted was approved.

PN455

Sorry, so the union went away and redrafted a new termination of agreement clause?---No, it was the same clause.

PN456

Thank you. So this clause doesn't represent the AMWU's position in relation to a termination clause?---No, this clause is not the AMWU's claim as identified in the email. It's a clause that was drafted up reflective of discussions, what was on the whiteboard and printed out and given to everybody, as again, as I was asked to get Mr Neilson to draft up some middle ground.

PN457

Could you take us through the clause? It goes from 1.1 right through to 1.2.7, and indicate which parts are the union's claim and which parts are not the union's claim? Just so that we can understand which parts may be prohibited content.

**** STEVEN JAMES MURPHY XXN MR FARR
PN458

MR MORRISON: I object to that question. Mr Murphy has already said this is not the union's claim, which is pretty much in its entirety. To differentiate on which words, I think is completely pointless for what we're trying to achieve. It is the claim is not the claim. The clause is not the claim, and that's the point. He can't say which word in isolation, whether it is a 1.1 in a claim is a pointless question, in my submission.

PN459

MR FARR: Commissioner, it's not pointless in terms of we are trying to determine what parts of the union - whether parts of the union claim are prohibited content or not.

PN460

THE COMMISSIONER: Yes, but Mr Farr, you haven't got to the point yet of convincing me that this is the union's claim.

PN461

MR FARR: And that's what I intend to try and do from this question, to
either - - -

PN462

THE COMMISSIONER: Have you got somewhere, and this is what I'm searching for, where the union has said "This is the clause we want"?

PN463

MR FARR: The company's position and Mr Whale's evidence is that this is, as they understand it, the union's claim.

PN464

THE COMMISSIONER: Yes, and there's evidence to the contrary.

PN465

MR FARR: I appreciate that. So what I'm trying to do is trying to understand from the AMWU what they say their claim is. Because if they say this is not their claim, we can't point to something else that says this is their claim.

PN466

THE COMMISSIONER: Well, doesn't it leave you with a problem?

PN467

MR FARR: Well, no, it doesn't necessarily, Commissioner, because if their claim is that they wish to have a termination of agreement clause that provides only that the agreement may be terminated by a new agreement, then that's the same as if it's in writing here in this draft clause. So that's what we're trying to understand, Commissioner.

PN468

THE COMMISSIONER: Well, I just don't see how it's going to assist at all, Mr Farr. We're going down all sorts of alleys. Have you got something in writing from the union saying this is the clause that we want, as in the one that was in EDI, for example?

**** STEVEN JAMES MURPHY XXN MR FARR
PN469

MR FARR: I have nothing further to add than what I've just put, Commissioner. That is, we understand that this is the clause that the union and its delegates are seeking. Now, I understand what Mr Murphy is saying; contrary to that, the company has also put evidence and it's put its evidence in relation to the meetings that have been held, as to its understanding of the union's position.

PN470

THE COMMISSIONER: Well, can we perhaps not go through it - maybe - just go ahead, Mr Farr. Maybe it'll be quicker to do it that way.

PN471

MR FARR: Is it or is it not, Mr Murphy, the union's position that it only wants the agreement to terminate when replaced by a new agreement?---You'll have to ask that question again.

PN472

Is it the union's position, or is it not, that the union only wants the new collective agreement at Amcor Taree to terminate when it's replaced by a new agreement?
---In relation to termination of the agreement, what we proposed to the company, and it's recorded in the minutes, is that termination agreement is an issue that we wish to discuss. We're trying to find some middle ground at the moment as to how that termination should take place, but my understanding is the company keeps coming up with some middle ground and every time we meet in that middle ground, they then withdraw their position and go back, say we only want to consult now. So we're still trying to find that middle ground in relation to termination of agreement.

PN473

I appreciate the sort of process of negotiation and I'm not asking for your negotiating position. What I'm asking for to understand, is the union's position as it's presently put to the company that it only wants for the new collective agreement at Taree to terminate when it's replaced by a new agreement?---In relation to reflective of the EDI clause?

PN474

No. I'm asking simply in relation to Taree, not in relation to EDI. I'm asking in relation to Taree, is that the union's position that it only seeks for the new collective agreement to be terminated when it's replaced by a new agreement?
---I'm not sure what you mean.

PN475

I'll ask the question perhaps slightly in a different way to assist. You have a negotiating position?---Mm mm.

PN476

Has your negotiating position in relation to termination of the agreement been articulated to the company?---It was articulated to them on many occasions.

**** STEVEN JAMES MURPHY XXN MR FARR
PN477

Is part of that articulation to the company on many occasions that the new collective agreement is to be terminated only when it is replaced by a new agreement?---There was wording around that discussed at all meetings.

PN478

So you accept that that is part of the union's position?---It's part of the discussion that we've been having.

PN479

Is it or is it not, Mr Murphy, part of the union's proposal that the new collective agreement at Taree will be terminated only when replaced by a new agreement?
---It's one of a number of ways that we've discussed.

PN480

But you'd accept that that is part of the union's position as it presently stands?---In relation to termination? We want a clause that deals with - - -

PN481

Commissioner, I've asked this question probably four or five times and I'm still yet to receive an answer to the question. I'm prepared to ask it again.

PN482

THE COMMISSIONER: Mr Murphy, could you listen to the question and answer it properly, please. It's a crucial point in this matter?---Yes.

PN483

MR FARR: Is it the union's proposal, is it the union's position as it presently stands, that it only wishes to enter into a new collective agreement with Amcor at Taree if it incorporates a clause that the new agreement will not be terminated except or unless it is replaced by a new agreement?---The clause - the draft clause that we submitted to Amcor early on, the wording was that this agreement shall continue in force after its nominal expiry date pursuant to the Act, and will not be terminated except when replaced by a new agreement.

PN484

That is still the union's position?---That's the same clause that was in EDI.

PN485

But that's still the union's position?---That's part of - that's part of the AMWU's claims moving forward.

PN486

Okay. Thank you. The drafts of each of the various versions of the enterprise agreement have been - sorry, collective agreement, have been shared with the union as the negotiations have progressed?---The copies of it, yes.

PN487

Yes?---Yes.

**** STEVEN JAMES MURPHY XXN MR FARR
PN488

The company's position - sorry. Could I show the witness attachment 3 to Mr Whale's affidavit? I can pass up my copy.

PN489

THE COMMISSIONER: Does that leave you without, Mr Farr, because I was going to say, Mr Murphy can borrow mine.

PN490

MR FARR: No, I'm able to borrow Mr Whale's. Thank you, Commissioner.

PN491

So if I can take you to - it actually says it's page 3 of 4, the third page?---Yes, up the top. Yes.

PN492

Attachment 3, then you go to page 3 of 4, the third page in?---Mm mm.

PN493

That's an email from Carina Brewster to yourself on 18 August 2006?---Yes.

PN494

The first one is clause 6, Date of Operation?---Mm mm.

PN495

And in that, there's a quote:

PN496

The company will consult with the parties to the agreement in the event that it decides for the agreement to be terminated under section 393 of the Act.

PN497

?---Yes, I found that.

PN498

Okay. Is that wording still in the draft agreement, that's the current draft, of where the negotiating positions are at?---I don't know if it's the exact wording, but there's familiar wording that says the company will consult in relation to termination of agreement.

PN499

So you accept that it's either that wording or very similar to that wording? And that position hasn't changed effectively since 18 August in the drafting of the document?---The wording in the document hasn't changed. In meetings, it has.

PN500

Thank you, but the document hasn't changed?---No.

PN501

Okay, thank you. Let me just take you - perhaps I might provide Mr Murphy with attachments 10, 11, 12 and 13 to Mr Whale's witness statement. Attachment 10 doesn't have a statement of Mr Murphy, I'm sorry.

**** STEVEN JAMES MURPHY XXN MR FARR
PN502

So attachment 10 is a notice issued on 24 November and if you go to page 3, it's about all employees engaged as dayshift team employees?---Yes.

PN503

Can you find that?---Mm mm.

PN504

Did you write these notices?---No, it's - I think it's done by a spreadsheet.

PN505

Pardon me?---It was done by a Word document.

PN506

I'm sorry, I still didn't - - - ?---I think it's a Word document.

PN507

It is, sorry?---Yes.

PN508

Did you draft these documents?---No, this is done by our research department.

PN509

So you'd accept, then, that the casting department, with your knowledge of the site, also operates dayshift?---My understanding is that dayshift team is different to somebody who is on dayshift as part of a customary rotation of 12 hour shift roster.

PN510

Right. So that's what your understanding of that is?---That's correct.

PN511

Is your understanding, then, of attachment 10, means it doesn't include people in the casting department?---It includes all employees who are of the dayshift team. As listed there.

PN512

Well, does that include the casting department or does it not?---My advice is that that does not include the casting department. That's a separate department and operates on a separate shift roster system.

PN513

You've sat through Mr Whale's evidence and his evidence was that slug pressers are part of the casting department. Is that correct?---But those slug pressers are on the dayshift team.

PN514

So when I was saying the casting department, you were using - you weren't meaning the slug presses people as well?---My understanding is that there are slug press people who are on - in the casting department on shift and there are also slug press people who are on the dayshift team.

**** STEVEN JAMES MURPHY XXN MR FARR
PN515

You'd be aware that casting department employees work a dayshift as well?
---Yes, but they're not part of the dayshift team.

PN516

On your definition?---On the employees' definition where the notice was developed from.

PN517

But that may not be Amcor's definition? You'd concede that point?---Well, it's a site definition.

PN518

So you're saying that this is the site definition?---That's correct. That's the employees' words in relation to dayshift team as opposed to somebody who is on dayshift as part of the normal rotation between night and dayshift.

PN519

Well, that's not what Mr Whale said in his evidence?---Well, Mr Whale should ask some of his employees, including his administration staff to clarify this.

PN520

But you'd accept that he's operations manager at the site?---Yes. There's no doubt of that.

PN521

Perhaps if I could take you to Amcor11, which I think is a notice in relation to another four hour stoppage by casting department employees?---That's correct.

PN522

So are casting department employees who are dayshift employees going to be taking industrial action on Thursday, 30 November in accordance with attachment 10 as well as industrial action on Friday, 1 December 2006 in relation to attachment 11?---Attachment 10, as I pointed out, was for dayshift personnel. Attachment 11 is in relation to the casting department and my understanding is the casting department is defined as people that are on a customary rotational shifts.

PN523

But you accept that there are casting department employees who work dayshift?
---But not on the dayshift team.

PN524

On your definition?---On the employees' definition.

PN525

So the answer to my question is that it's not intended for the casting department to be taking industrial action on 30 November and on 1 December, pursuant to those two different notices?---You have to refer to 10 and 11.

PN526

Yes, attachment 10 and attachment 11. So are casting department employees taking both sets of industrial action, or are they taking only set of industrial action?---The casting employees, if they are slug pressers who are on the dayshift team would take industrial action on attachment 10. Those casting employees
- casting department employees, sorry, who are not on the dayshift team are taking industrial action under attachment 11.

**** STEVEN JAMES MURPHY XXN MR FARR
PN527

So casting department employees on dayshift, on 30 November, are not taking industrial action? That's what you're saying?---I'm just trying to find the date on it. The 30th does not cover casting department employees. It covers dayshift team employees.

PN528

So in answer to my question, employees in the casting department who work dayshift are not taking industrial action, in accordance to your evidence, on 30 November, in accordance with attachment 10?---That's correct. The dayshift team sub-pressers, engineer and QC on the 30th. The casting department employees are the 1st.

PN529

In relation to attachment 12 - - - ?---Yes.

PN530

- - - that's industrial action by the slug room and slug press employees?---That's correct.

PN531

And that's for 1 December 2006?---That's correct.

PN532

So that's in addition to the industrial action proposed for 30 November?---And that's number 10? Attachment 10?

PN533

Attachment 10, yes. My apologies?---That is in addition to the attachment 10, yes.

PN534

So attachment 12 doesn't replace attachment 10 in relation to those employees? It's cumulative?---That's correct.

PN535

Is there anywhere on the notice to the company that advises the company of that being the case?---That it's cumulative?

PN536

That there will be - that this doesn't replace the first notice, that it's in addition to attachment 10?---Wouldn't all notices be additional, though?

PN537

I'm asking the question; is there anything in that notice at all that would indicate to the company that this in addition to the notice in attachment 10?---No, there's nothing on the standard form where there's a box to tick.

PN538

So you accept that there's nothing in the notice?---No, there's nothing in the notice.

**** STEVEN JAMES MURPHY XXN MR FARR
PN539

Thank you. So if the casting department includes the casting as well as the people working in the slug area, what's the difference between attachment 11 and attachment 12?---Attachment 11 - - -

PN540

Attachment 11 relates to casting department employees which we have evidence that includes the employees in the slug area and people who perform slug rumbling, and then attachment 12 is about employees engaged in the slug room and slug press. Is that supposed to replace part of attachment 11 or is it just simply a duplication?---My advice from the employees is that the casting department employees are separate to the slug room and slug press employees and a separate notice should be issued in relation to those employees.

PN541

If I can then just take you to attachment 13 which is in relation to team 3?
---Attachment 13.

PN542

Team 3, industrial action?---Yes.

PN543

Now, that's a dayshift that they're working on that particular day?---Yes, that's a dayshift. Their normal shift starts at 6 am.

PN544

But by your definition, they're not part of the dayshift team in attachment 10?
---Well, the employees do not deem team 3, who are on a rotating roster, to be part of dayshift team.

PN545

Have you issued more notices today, Mr Murphy?---My understanding is that there should be further notices issued today.

PN546

What are those notices for, and which employees?---I can't recall. That's all on my laptop.

PN547

MR MORRISON: Commissioner, I object. They're not part of this application.

PN548

MR FARR: Commissioner, it really goes to the fundamental point of can the organisation take defensive action to the industrial action if it doesn't understand what that industrial action is and who is going to be taking it at any particular time. In my submission, Commissioner, that's a reasonable question to be asking the organiser of the site who professes to have this in depth knowledge of the departments and the employees in order to put these notices together. Which is contrary to the evidence of the manager of the site. So I do press the question, Commissioner.

**** STEVEN JAMES MURPHY XXN MR FARR
PN549

THE COMMISSIONER: Yes, Mr Morrison?

PN550

MR MORRISON: Well, Commissioner, I object. That's more to the failings of the manager than the knowledge of Mr Murphy.

PN551

THE COMMISSIONER: You can ask the question, Mr Farr.

PN552

MR FARR: Thank you, Commissioner.

PN553

Mr Murphy, you have accepted that there are more notices today. How many more notices have been issued today?---My understanding - I'd have to look at a calendar. Today is the 29th, Wednesday. One notice should have been issued today.

PN554

Who is that in relation to?---Could be team 1, perhaps.

PN555

So you're not certain, but there are more notices?---Yes. I couldn't tell you who it's for, but it will be 72 hours' notice of whoever that affects.

PN556

To your knowledge, when does team 1 next come on dayshift?---I'm not sure that it is team 1. I can only say that that's logical because they're opposite to team 3.

PN557

If I put it to you that team 1's next rotation on dayshift is tomorrow, 30 November, would you accept that?---I haven't got it in front of me, I don't know.

PN558

If I'm putting it to you that that's the case, is that controversial for you?---I'm not offended by it.

PN559

Okay. So let's assume, and it is the case, that team 1 comes on dayshift tomorrow, 30 November, is team 1, because they're on dayshift, covered by the notice in attachment 10?---Attachment 10? No, that's - again, that's the dayshift team.

PN560

But they would consider themselves to be on dayshift on that day, wouldn't they?
---But they're not part of the dayshift team as defined by the employees.

PN561

If team 2 starts dayshift on Friday, 1 December, is this notice in attachment 10 proposing to have a four hour stoppage of team 2 on 1 December?---Attachment 10 deals with 30 November.

**** STEVEN JAMES MURPHY XXN MR FARR
PN562

But it says, "Date on which industrial action will begin", it doesn't say will only be on or is limited to?---It says dayshift team.

PN563

So the only point of clarification is your definition of what a dayshift team is?
---Well, my understanding is, it's the definition that the employees, their supervisors, their leading hands, production planners, the whole lot, use.

PN564

Mr Whale's evidence is that is not the case. You don't accept that to be the case?
---I think Mr Whale, with his nine months being there, is still coming to terms with a lot of things that happen on the site.

PN565

And it would be Mr Whale's obligation as the operations manager to implement defensive action to this industrial action, you'd accept that as a proposition?---The company's got a right to do whatever it sees fit.

PN566

Okay. Commissioner, I have nothing further.

PN567

THE COMMISSIONER: Thank you, Mr Farr. Mr Morrison, did you want to re-examine?

PN568

MR MORRISON: Very briefly, Commissioner.

<RE-EXAMINATION BY MR MORRISON [5.21PM]

PN569

MR MORRISON: The attachments 10 and 11, if I could take you to those? You recall the questions asked about those questions?---Yes.

PN570

One is on the third page, "Date on which industrial action will begin", attachment 10 has 30 November?---Yes.

PN571

Attachment 11 has 1 December?---Yes.

PN572

So fairly clear on the dates, they are all dated, are they not?---That's correct.

PN573

How did this industrial action that is planned, how was it developed?---The actual - when the stoppages take place? It was developed out of a mass meeting decision that called on the delegates to develop a roster. That roster has been developed by the delegates. I then got them to clarify in wording that's used on the sites about who each of those stoppages affect and that came together around the four hour stoppage, the date, who it affects, to form the notice. So the length of the stoppage, the date and who it affects was developed by the delegates who represent the employees on the site.

**** STEVEN JAMES MURPHY RXN MR MORRISON
PN574

Have any delegates or members come to you and said, "We're not clear on who this action is and when we're taking it"?---No.

PN575

Have they expressed to you any understanding of how it applies and who and when?---My understanding, from talking to a different group of employees the other day, was that they fully understood what was taking place and when.

PN576

You told us you were party to the dispute with regard to EDI Rail?---Yes.

PN577

You were party to the negotiations on the termination of agreement clause as contained in the EDI Rail agreement?---That's correct.

PN578

Do you recall the words that were deemed by this Commission as being acceptable with regard to that clause?---Yes.

PN579

Could you tell us what those words were?---The words that were included in the document were:

PN580

This agreement shall remain in force after its nominal expiry date pursuant to the Act and will not be terminated except when replaced by a new agreement.

PN581

Did any member of this Commission say that those words were acceptable?
---Yes. My understanding is Cartwright SDP approved those words as being acceptable.

PN582

No further questions, Commissioner.

PN583

THE COMMISSIONER: Just to clarify for my point of view, Mr Murphy, I think your evidence was that the words that you have just recited as being the EDI words, if I could take it that other ones that the union put on in its claim against the company - - - ?---That's correct, and they're much tighter than the clause that was drafted up for discussion.

PN584

I just wanted to clarify that?---Hence the new agreement. Yes.

**** STEVEN JAMES MURPHY RXN MR MORRISON
PN585

It's just there was a bit of to-ing and fro-ing at that time. I think it might have been in cross-examination, Mr Farr, and I just was a little unclear. Thank you. You can be excused, Mr Murphy.

<THE WITNESS WITHDREW [5.25PM]

PN586

THE COMMISSIONER: Now, are you ready for your submissions, both of you, now?

PN587

MR FARR: I am, Commissioner.

PN588

THE COMMISSIONER: You're right, Mr Farr?

PN589

MR FARR: Yes, I am.

PN590

THE COMMISSIONER: Mr Morrison, would you be - assuming Mr Farr doesn't come up with something that you haven't thought about, you'd be right to follow?

PN591

MR MORRISON: I'm fine, Commissioner.

PN592

THE COMMISSIONER: Okay. Mr Farr, if you'd be - take a moment to collect yourself, if you want.

PN593

MR FARR: No, that's fine. Thank you, Commissioner. This is an application for an order to stop or prevent industrial action filed by Amcor Packaging Australia Pty Ltd on 28 November 2006. Again, the company would like to acknowledge the assistance of the Commission in bringing this matter on urgently and sitting late today. We seek an order to stop or prevent industrial action in the form of the notices which are attachments 10 through attachment 13 of the witness statement of Mr Whale, which is Amcor1, in relation to proposed industrial action by the AMWU's members at Amcor's manufacturing site at Taree. In summary, the company submits that the notices to take protected industrial action do not have the requisite specificity to comply with section 441(6) of the Act, or that the industrial action is being engaged in to support or advance claims that include prohibited content in the agreement and is therefore not protection action pursuant to section 436 of the Act. Commissioner, I'm sure you are very familiar with section 496, but I am happy to take you though those provisions, should that assist?

PN594

THE COMMISSIONER: It's up to you, Mr Farr. I don't mind.

PN595

MR FARR: Essentially, there are three jurisdictional requirements.

PN596

THE COMMISSIONER: I think it's probably uncontroversial - - -

PN597

MR FARR: Uncontroversial.

PN598

THE COMMISSIONER: - - - between you, unless Mr Morrison has some argument that hasn't yet been raised before various members, but it's probably relatively uncontroversial.

PN599

MR FARR: Thanks. And I take it from that, then, there is no controversy about industrial action that is threatened, or that it would be industrial action by an employee.

PN600

THE COMMISSIONER: I think, for what it's worth, I presume, Mr Morrison, you would concede that - well, perhaps I shouldn't put words in your mouth - that if this action were being taken without the benefit of the protected action ballot order and ballot, et cetera, et cetera, that this would fall foul of section 496. Is that the - - -

PN601

MR MORRISON: Certainly, Commissioner, and I think you know my counterargument to that, so, yes.

PN602

THE COMMISSIONER: But what I mean is, there's no argument that - - -

PN603

MR MORRISON: No, if it was not protected action, it would be industrial
action - - -

PN604

THE COMMISSIONER: Yes, so I think we just really to focus, everyone I suppose, on the issue of whether it's protected or not. Yes, Mr Farr.

PN605

MR FARR: Thank you, Commissioner. In the company's submission,
section 441(6) requires a greater degree of specificity and clarity in the notices than is presently in the notices that have been served by the union. The Commission would be very familiar that section 441(6) is the former section 170MO(5) and that there has been considerable judicial interpretation of that section. In our submission, this jurisdiction is directly applicable to the interpretation of section 441 in its present form. In interpreting the almost identical - sorry, the identical words in that section of the pre-amended Act, a number of cases arise. Perhaps, Commissioner, it might be of assistance, Watson SDP provided a neat summary of the - - -

PN606

THE COMMISSIONER: Is the Carlton and United one?

PN607

MR FARR: It was.

PN608

THE COMMISSIONER: I have it here, Mr Farr.

PN609

MR FARR: I thought that might be the case, Commissioner.

PN610

THE COMMISSIONER: It's the one that is a very useful summary of all the various things, and I think we're all grateful to his Honour for having put them all together in one spot.

PN611

MR FARR: It certainly is, particularly for travelling lawyers, Commissioner, rather than chopping down trees. But essentially, Commissioner, I think the summary that's put out, I think at paragraph 31 of that decision, suggests the principles which his Honour has put together in terms of that adequacy of specification and for the record, simply state that MO(5) itself provided limited guidance in the degree of specificity. Commissioner, given the nature of the time, I don't intend to take you through all those points, unless you wish me to.

PN612

THE COMMISSIONER: Certainly. I have my copy here. I mean, I don't know whether we need to dwell on them, but you can take it that certainly I'm aware of the decision, I'm aware of the points that his Honour has noted there. I suppose it's really only if you want to depart from them or you want to emphasise particular ones, Mr Farr?

PN613

MR FARR: Your Honour, I think this really turns on the facts of what is in the notice or not.

PN614

THE COMMISSIONER: Yes. Yes.

PN615

MR FARR: We're not submitting that there is some new or novel order that we wish to create before you today. But effectively, it relates to the lack of ability for the company to adequately protect itself in relation to the industrial action that's proposed by the employees and to understand which of its employees will be taking industrial action at any particular time. The evidence of Mr Whale is that a majority of employees work on dayshift at some time, including employees for example in the can lines. We say in relation to attachment 10, Commissioner, that it's unclear from the drafting of that clause, in page 3 of that attachment where it says:

PN616

A four hour stoppage of work by all employees engaged as dayshift team employees including but not limited to dayshift employees engaged in QC, engineering and slug presses.

PN617

We say that that is uncertain as to whether that is supposed to incorporate anybody who is working on dayshift on 30 November. Is it anybody from 30 November that when they come onto dayshift, they will then be taking the same industrial action? In our submission, there is a sufficient degree of uncertainty around that, that the Commission can form the view that the requirements of section 170MO(5) - sorry, section 441(6) have not been met. This is particularly the case, Commissioner, when very soon after receiving that attachment 10 notice, that the company is served with further notices which would appear on its face to duplicate the breadth of the employees covered within attachment 10. It's unclear on the face of those notices whether they are in addition to, to supplement the original notice, or whether they are to replace the original notice in relation to those employees.

PN618

It's only for the first time, evidence given in the witness box that discusses that issue around those notices, that clarity comes. But that's not what the requirements of Act are. The requirements of the Act are that the notice provide that degree of clarity and certainty for the company. Mr Whale's witness statement, towards the end of the witness statement, outlines the defensive issues from the company in relation to how it might protect itself from the industrial action, in relation to its customers and the start-up issues, safety issues, along those lines. It's clear because of definition, at the very least, but perhaps further misunderstanding on the part of the union as to what it is seeking to do in relation to the industrial action. The company is entitled to say, well, here is a notice. If it's not clear, then you are not taking protected industrial action, that you haven't met the requirements of the Act.

PN619

This is in an environment where, as we hear from evidence, that there are further notices coming. So it provides a very difficult situation for the organisation to understand which of its employees at any particular time will be taking industrial action. In our submission, Commissioner, it's clear that these notices fail that test. Commissioner, I don't think I can take that point any further, but I think Mr Whale's evidence is very strong on that lack of certainty and given the position that he holds within the organisation, that should weigh very heavily in the Commission's mind in forming its decision about specificity. In relation to the issue about supporting claims which include prohibited content, and in particular around the issue of renegotiation of the agreement, section 356 of the Act provides that regulations may specify matters that are prohibited content for the purposes of the Act.

PN620

The relevant regulation in this particular matter, Commissioner, is Regulation 8.5 in chapter 2 of the Workplace Relations Act Regulations 2006.

PN621

THE COMMISSIONER: I'll get the other folder.

PN622

MR FARR: Yes, hiding in here somewhere. Which essentially reads that a term of a workplace agreement is prohibited content, and importantly, to the extent that it deals with the following, and subsection (e) of subsection (1), the renegotiation of a workplace agreement. So it's not that the clause only has to be that or that the words have to be there. It's clear that the legislature has given a broader ambit to prohibited content because in the preamble to the clause, using the words that it deals with the following. So it's sufficient for one part of the clause to deal with prohibited content and that would make the whole of the clause deal with prohibited content and essentially the clause falls away on that basis. As the Commission is aware, under section 436, that section provides that:

PN623

Engaging in industrial action in relation to a proposed collective agreement is not protected action if it is to support or advance claims to include prohibited content in the agreement.

PN624

In our submission, Commissioner, the evidence is clear that the union is seeking to incorporate a clause which limits the liability of the company to unilaterally terminate the proposed collective agreement. Obviously notwithstanding section 393 which applies regardless of what was in a collective agreement, it's submitted that the clause is prohibited content. So in our submission, the anti-ouster clause in section 383 does not save the union in this matter. Cartwright SDP in the first decision in relation to the secret ballot, when it came before his Honour, said that it was finely balanced, but said that the nature of the claim being pursued by the AMWU in that case, which was set out in paragraph 23 of that decision which I'm happy to hand up, Commissioner.

PN625

THE COMMISSIONER: That's fine.

PN626

MR FARR: Do you have a copy of that decision?

PN627

THE COMMISSIONER: I've actually got the second. I mean, I have the first somewhere in the list, but I can't locate it right at the moment, so if you do have a spare, Mr Farr, that's probably helpful. Thank you. I'm sorry, what paragraph did you say?

PN628

MR FARR: It was paragraph 23, Commissioner. Essentially, Cartwright SDP in that matter characterised the clause as a clause that the union is proposing in the agreement that that would provide that the parties to the agreement will not take steps to terminate the agreement except by the replacement of it with a new agreement. And later, Commissioner, at paragraph 34, the draft clause is actually set out:
I'm sorry, what paragraph did you say?

PN629

MR FARR: It was paragraph 23, Commissioner. Essentially, Cartwright SDP in that matter characterised the clause as a clause that the union is proposing in the agreement that that would provide that the parties to the agreement will not take steps to terminate the agreement except by the replacement of it with a new agreement. And later, Commissioner, at paragraph 34, the draft clause is actually set out:

PN630

This agreement will continue in force after its nominal expiry date pursuant to the Act and will not be terminated except when replaced by a new agreement.

PN631

Now, when pressed in the witness box, Mr Murphy accepted in cross-examination that the union was saying that it would enter into a collective agreement at the Taree site unless the only way to terminate the agreement was when it was replaced by a new agreement. That was the exact question that was put to Mr Murphy, that ultimately he accepted that as a proposition. In the first decision, Cartwright SDP took the view that that clause in the drafting before his Honour at that time intended to limit the employees' rights to access section 393, although observing in practice that couldn't be achieved. Ultimately, his Honour took the view, although finely balanced at that time, the claim could be characterised as a claim that deals with the renegotiation of a workplace agreement because it contemplates a new agreement. Essentially, it goes from an implied perspective, Commissioner. That is, you can only have a new agreement if there is renegotiation of an agreement.

PN632

A new agreement does not simply arise out of thin air. The Commission can certainly take into account its practical knowledge of the flavour, the foundations, of reaching agreements that this Commission has spent many times seeking to assist the parties to resolve. These are not simply matters that the company can go and lodge a document that becomes a new agreement pursuant to the Workplace Relations Act. So at some point there must be some form of negotiation of an agreement. The only way to terminate a workplace agreement under the Act is twofold. Sorry, twofold, there are a number of ways, but predominantly the ways are that it is replaced by a new agreement, and by replacing it with a new collective agreement, that means that the first collective agreement ends for all time, because under the structure of the Act, only one industrial instrument may apply at a time.

PN633

A workplace agreement does not terminate the collective agreement. It does in relation to the individual employee, but the collective agreement continues on in operation in relation to other employees who would be covered by that document. Secondly, obviously, the process of termination is set out in the scheme of the Act. So it's not sufficient to say, well, it could be any form of agreement. That's not sufficient. Because that is not the law and that is not the practical reality the Commission is certainly able to refer to. So the only conclusion, in our submission, Commissioner, that can be made from a statement about including a termination of agreement clause is that it relates to the renegotiation of the agreement. Now, the issue about terminology has become somewhat important in this matter. The who said it was a continuation clause versus the who didn't say it was a continuation clause.

PN634

Mr Whale's evidence is quite clear, that it's certainly a term that has been used by the union. It is certainly clear that it has been in the minutes of the negotiation meetings between the parties. It's clear that when the union have taken offence to what is put in the minutes, that it has clearly attempted to say that is not their recollection of the minutes, but yet they have not, in relation to that terminology, continuation clause, sought to disavow themselves from that. In fact, the email between Mr Honeysett and Mr Murphy in attachment 4, where Mr Honeysett himself uses that terminology, we think, Commissioner, you can certainly draw the inference that that is what the union is all about. On that basis, it is prohibited content. We also say it's prohibited content because it sets up a scheme which effectively prohibits an AWA being offered, and that's Regulation 8.5 in chapter 2, subsection (8), a term concerning an AWA:

PN635

A term of a workplace agreement is prohibited content to the extent that it directly or indirectly restricts the ability of a person bound by the agreement to offer, negotiate or enter into an AWA.

PN636

We say that because the terminology within the drafting of the clause as proposed by the union talks about a new agreement. We say that when you read the context of that proposal that the union is saying that at the Taree site the only way to have a future pass at this collective agreement is a new collective agreement. Commissioner, unless there's anything further that I can assist the Commission with, those are the company's submissions.

PN637

THE COMMISSIONER: Thank you, Mr Farr. Mr Morrison?

PN638

MR MORRISON: Yes, Commissioner. I shall firstly deal with the notice of protected industrial action. Mr Murphy was absolutely clear on which employees will be affected by what industrial action and when. Mr Murphy does not even work at the site, but he has no doubt in his mind who will be taking industrial action and when, and which part of the site they work at. That Mr Whale does not understand that is extraordinary, in his position. It is not - to accept his arguments would be simply to have, at every time there is protected action sought, for a manager to sit there and say, I do not understand what the agreement - and on that basis, the industrial action no longer - you know, the protected action notice falls foul of section 441, which is such a nonsense argument.

PN639

There can be no doubt in Mr Murphy's mind as to who is taking the action. His evidence, and not challenged, was that there was no doubt in the members' minds, the employees who developed it, who was taking industrial action and when. The failing of Mr Whale is, we would say, a problem for the company because on their face, very clear who and when and where the action was occurring. With regard to the prohibited content - and just before I leave the protected action, it's worthwhile to note that this, if you like, came out of nowhere to us because it wasn't even included in the grounds that were sent to the union yesterday and
- they were mentioned, but they weren't stated. The grounds for the issue was the prohibited content. But with regards to the prohibited content, it is been - - -

PN640

THE COMMISSIONER: Mr Morrison, I could just say I'm sure Mr Farr will alert you to the - I think it did have the sort of catch-all at the bottom. You know, any other grounds that might be developed or raised, or something to that extent. I can't remember the exact wording, but something - - -

PN641

MR MORRISON: That comes in from my failing as not spending quality time with solicitors, Commissioner. But the issue that seems also to be before you is regarding the prohibited content that the union seeks to be included in the agreement. The company rely on what is regarded as attachment 7. Was it - or attachment 6, sorry.

PN642

THE COMMISSIONER: I was getting a little confused, Mr Morrison. I was thinking I don't think 7 has made a big appearance in this matter and I was worried whether I'd missed a vital attachment.

PN643

MR MORRISON: No, no. My mistake. Attachment 6, which Mr Murphy's evidence and supported by Mr Whale, was that this was put not as a union claim, and there is no doubt that it's not part of the union claim. This was simply a document developed by Mr Murphy and Mr Neilson from my office, as based on their record of the company's thinking, and for the company to digest and then discuss with Mr Murphy. It was definitely and clearly acknowledged not a union claim. So the only union claim that seems to be attracting the claim of prohibited content is Mr Murphy's words which were the EDI words, that the agreement will continue in force after its nominal expiry date pursuant to the Act and will not be terminated except when replaced by a new agreement. If that is the position, and I hand up, if you don't have it, a copy of the second decision by Cartwright SDP.

PN644

THE COMMISSIONER: Yes, I have that, thanks, Mr Morrison. That's 22 September.

PN645

MR MORRISON: That's the decision of 22 September. PR973968.

PN646

THE COMMISSIONER: Yes.

PN647

MR MORRISON: Thank you. Where his Honour is very clear on that wording in his decision. Part of his thinking in 9 is that nothing in it mandated renegotiation of an agreement, putting it bluntly. Then in 13, he further expanded that by saying towards the end:

PN648

The full clause proposed by the AMW cannot be said to be concerned with the renegotiation of a workplace agreement in a way that is direct as opposed to inconsequential or remote. It does not deal with a prohibited matter and accordingly is a clause which may be included in the agreement.

PN649

It is that clause that Mr Murphy stands accused of trying to insert into the agreement, is our understanding. Now, the clause sought by the union, it is submitted, that this clause somehow offends the Workplace Relations Act Regulations, and in particular, Regulation 8.5.1(e) which is in the following terms:

PN650

A term of a workplace agreement is prohibited content to the extent that it deals with the following; (e) the renegotiation of a workplace agreement.

PN651

We would say that the question for the Commission, the question the Commission must determine, is whether the clause that Mr Murphy in fact has acknowledged that he has put forward, requires Amcor as a person bound by the agreement to negotiate or conclude a future agreement, and the answer to that question, we would submit is, no, it does not. Therefore, we say does not attract the prohibited content provisions. Now, we would say it would be handy if the Commission
- and I could go to great length to talk about the intentions of the parties, what the word negotiate actually means in the dictionary, the New Shorter Oxford Dictionary definition of negotiate, but put it in a nutshell, it is our submission there is nothing in the proposed termination clause as put forward and acknowledged by Mr Murphy which would require Amcor to communicate or confer, which is the definition of negotiations, or have discussions with a view of some compromise or settlement.

PN652

They are strictly the definition of negotiation. Or to negotiate. Because as the New Shorter Oxford English Dictionary states:

PN653

Communicate or confer with another or others for the purpose of arranging some matter by mutual agreement; have a discussion or discussions with a view to some compromise or settlement.

PN654

That is the definition of renegotiate, and there is nothing in the words of Mr Murphy that could lead Amcor to that position. So we say there is no prohibited content in our claims, that there is no basis for this application and it should be dismissed. Unless you have any further questions, Commissioner.

PN655

THE COMMISSIONER: The only thing, Mr Morrison, is there anything you want to say in response to Mr Farr's submission about Regulation 8.58 I think it is, the issue about the AWAs, that you can't - a term is prohibited content to the extent it directly or indirectly restricts the ability of a person bound by the agreement to offer, negotiate, or enter into an AWA. You might remember he raised that, so - - -

PN656

MR MORRISON: Yes, Commissioner. I'm sorry, I do recall him mentioning that. I think that's taking a very, very limited view on that wording and what the word, agreement, means. We take the broader view that agreement, be it individual or collective, and I don't think that assertion really - it has not been identified by the Office of the Employment Advocate in any clauses we've seen where that clause has been inserted into agreements and I think it's quite a unique interpretation of the Act for today's purposes.

PN657

THE COMMISSIONER: There you are, Mr Farr.

PN658

MR FARR: I didn't think it was quite that unique, Commissioner, I must admit.

PN659

THE COMMISSIONER: Mr Farr, did you want to put anything in reply?

PN660

MR FARR: Only one point, Commissioner. That is that the clauses being sought here in relation to the differences with EDI Rail, is that the clause - and if I take you to paragraph 11 of the second decision of Cartwright SDP, is there are additional words that Mr Murphy is seeking, and those additional words are:

PN661

- except when replaced by a new agreement.

PN662

THE COMMISSIONER: Yes, which is in paragraph 13 of his Honour's decision.

PN663

MR FARR: Yes, but Commissioner, our point is very clear; that replacement by a new agreement must, in our submission, lead to the point that there must be renegotiation. I accept that, Commissioner.

PN664

THE COMMISSIONER: So you're saying his Honour is wrong?

PN665

MR FARR: In our submission, Commissioner, yes.

PN666

THE COMMISSIONER: Politely, I'm sure.

PN667

MR FARR: Politely, and with the greatest of respect, we believe that his decision at first instance was the correct decision.

PN668

THE COMMISSIONER: That was all, was it, Mr Farr, that you wanted to put?

PN669

MR FARR: That's all.

PN670

THE COMMISSIONER: Because of the particular type of matter this is and the requirement of the legislation to provide a decision, or a determination I think it's termed these days, within 48 hours of the application which I think expires at 11 o'clock tomorrow morning or something to that effect, what I think I will do, I would have actually preferred to have had a period of time to go away and perhaps mull over what's been said with a little more care and come up with a proper decision, but given the hour and the particular circumstances I have just alluded to, I think what I'm going to do is to indicate what my decision is, but in fact then not provide reasons at the moment, and reserve the right to obviously provide those reasons in writing. I know that's probably not terribly satisfactory to the parties, but I think the alternative is, you know, we sort of wait around for a considerable time.

PN671

I can indicate that I don't intend to issue the orders sought by the company. Just in very brief compass, I can indicate this relates to both grounds of the application. I am not satisfied that the union is in fact seeking to pursue or take industrial action in pursuance of prohibited content. On the basis of the evidence that is before me, I am satisfied that the clause that has been put by Mr Murphy as being the one being pursued by the union, which just happens to be the same clause that was accepted by his Honour, Cartwright SDP in the EDI matter, it's the same clause, I agree with his Honour and intend to follow him in his decision in relation to the wording of that clause. I am not satisfied on the evidence before me that the union is in fact seeking to pursue what is I think set out in attachment 6, the email from Mr Murphy to Mr Whale.

PN672

Just briefly in relation to the second part of that matter, if I could put it that way, is that - sorry, the second part of the application, I am not satisfied that the notices lack the required specificity. I mean, I think minds could always differ over how specific these notices have to be, however, I certainly take onboard the comments that Watson SDP put in the Carlton and United Breweries case and take onboard particularly the principles that he has set out at paragraph 31 of that decision. I think what has to be borne in mind is that in this case, the notice in my view certainly complies with section 441(6). It was in writing, and I don't think there's any controversy about that. It states the nature of the intended action in each case, and it also states the day on which each of the action will occur. Whilst there might be some differences between people as to exactly who is covered by which notice.

PN673

I think it seems to me to be clear that the notices are sufficiently specific enough and meet the requirements of section 441(6). So unless there are any questions, the application is dismissed and the matter is now adjourned. Thank you.

<ADJOURNED INDEFINITELY [5.59PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

TONY BRIAN WHALE, AFFIRMED PN30
EXAMINATION-IN-CHIEF BY MR FARR PN30
EXHIBIT #AMCOR 1 WITNESS STATEMENT OF TONY WHALE PN42
CROSS-EXAMINATION BY MR MORRISON PN50
EXHIBIT #AMWU1 MINUTES OF MEETING OF 30/10/2006 WITH ATTACHED EMAILS PN295
RE-EXAMINATION BY MR FARR PN347
THE WITNESS WITHDREW PN390
STEVEN JAMES MURPHY, SWORN PN400
EXAMINATION-IN-CHIEF BY MR MORRISON PN400
RE-EXAMINATION BY MR MORRISON PN568
THE WITNESS WITHDREW PN585