C2006/2855, Transcript of Proceedings [2006] AIRCTrans 1305 (13 December 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16246-1

SENIOR DEPUTY PRESIDENT CARTWRIGHT

C2006/2855

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
AND
TRISTAR STEERING AND SUSPENSION AUSTRALIA LTD
s.170LW -prereform Act - Appl’n for settlement of dispute (certified agreement)
(C2006/2855)

SYDNEY

10.09AM, FRIDAY, 01 DECEMBER 2006

Continued from 23/11/2006

Reserved for Decision

PN1

THE SENIOR DEPUTY PRESIDENT: I note a change in appearances in this morning.

PN2

MR M MOIR: Yes, your Honour, if I could announce a change of appearance on behalf of the respondent. I am instructed by the Australian Industry Group. The circumstance is that Mr Mead who was previously appearing on behalf of the respondent has been unavailable over the past few days and remains so this morning I understand and I have been instructed to appear and I therefore seek leave to appear.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes. Any objection to leave?

PN4

MR WALLACE: No, your Honour.

PN5

MR NEILSON: No, your Honour.

PN6

THE SENIOR DEPUTY PRESIDENT: Leave is granted. Well, I'm not sure which of you to turn to first. We've had some many iterations in this matter you might have to remind me where we're up to.

PN7

MR WALLACE: I'll try and do that, your Honour. Your Honour, our primary position today is if your Honour is aware that there is an appeal.

PN8

THE SENIOR DEPUTY PRESIDENT: Yes.

PN9

MR WALLACE: Of an interlocutory decision regarding our summons. Our primary position today is to request you, your Honour, to adjourn this matter pending the appeal. The appeal is now set down for 19 December. Just to try and put that in context or our submission in context, your Honour, you will recall that initially there was no evidence put by Tristar and the unions put on some evidence. The matter then came back following your Honour's decision regarding jurisdiction and then some evidence was put on over the objection to the unions by Tristar. That was Mr Misra's evidence in a statement form and - - -

PN10

THE SENIOR DEPUTY PRESIDENT: I think the first evidence from
Mr Schutz was put on over objections from Tristar. So - - -

PN11

MR WALLACE: Yes, it probably was. I wasn't in that, your Honour.

PN12

THE SENIOR DEPUTY PRESIDENT: No.

PN13

MR WALLACE: Thank you for reminding me. So our summons then came about because of the evidence of Mr Misra, as you would be aware. I'm not going to go over ground we've argued about before. Then of course we appealed your Honour's decision on the allowance of only paragraph 7 of our summons. My submission - our submission - well, my submission anyway, your Honour, and the union's submission is that we cannot properly present our case as we see it against the defence raised by Tristar and Mr Misra's evidence without the material sought by the summons. We say that it could cause injustice, certainly unfairness if this matter proceeds today without the question of the appeal being heard or the question before the Appeal Bench being heard.

PN14

We may well be wrong of course, but then there'd be no real harm done and the matter could still then proceed. But we say until that matter is resolved on appeal the only fair course would be to adjourn pending the outcome of that appeal. Now, your Honour, I refer here to a case - - -

PN15

THE SENIOR DEPUTY PRESIDENT: Just before you do.

PN16

MR WALLACE: Yes.

PN17

THE SENIOR DEPUTY PRESIDENT: You will recall last time we were together briefly because Mr Mead wasn't able to attend that day.

PN18

MR WALLACE: Yes, he wasn't, yes.

PN19

THE SENIOR DEPUTY PRESIDENT: There was reference to a stay application which up till that point I hadn't been aware of.

PN20

MR WALLACE: Yes, your Honour.

PN21

THE SENIOR DEPUTY PRESIDENT: Can you indicate what has happened in relation to that?

PN22

MR WALLACE: Yes, I apologise, your Honour, I thought maybe you might have heard. The stay application was to be heard yesterday afternoon. Mr Moir was for Tristar and myself and Mr Neilson were for the unions. On reflection following discussions among ourselves we recognised that the Act couldn't prevent these proceedings being stayed, the proceedings.

PN23

THE SENIOR DEPUTY PRESIDENT: Yes, I was puzzled about that.

PN24

MR WALLACE: And order or a decision can be stayed but not proceedings.

PN25

THE SENIOR DEPUTY PRESIDENT: Yes. And since the order had been fully complied with it could hardly be stayed.

PN26

MR WALLACE: So we withdrew the stay application yesterday afternoon. We thought probably we'd essentially be in a position of arguing before a stay before Vice President Lawler yesterday and then be forced to make the same applications today before your Honour, so we thought that we'd done one and get the price of two.

PN27

THE SENIOR DEPUTY PRESIDENT: No surprise there, Mr Wallace.

PN28

MR WALLACE: Your Honour, I would like to refer your Honour to the case of Caltex Refining Pty Ltd. I hand up a photocopy of the case.

PN29

THE SENIOR DEPUTY PRESIDENT: Just while that's coming up.

PN30

MR WALLACE: Yes, your Honour.

PN31

THE SENIOR DEPUTY PRESIDENT: Have you addressed your mind to the issue that - or the possibility that we may be in a position to proceed and should the appeal be granted then of course the matter or the unions would have the opportunity to reopen of Mr Misra because it really only goes to the examination of Mr Misra, doesn't it?

PN32

MR WALLACE: Well, it goes to the examination of Mr Misra and his evidence and their evidence of course is in defence of our application and so that's their defence and we'd say that - - -

PN33

THE SENIOR DEPUTY PRESIDENT: Well, when you say in defence of your application, I mean where we are in the proceedings is that I've found that there's a dispute over the application of the agreement and pursuant to the dispute settlement clause in the agreement I'm now seeking to resolve the dispute.

PN34

MR WALLACE: Yes.

PN35

THE SENIOR DEPUTY PRESIDENT: So yes, it was your application that brought the dispute to the Commission but we're now in the process of trying to resolve the dispute.

PN36

MR WALLACE: Well, we are, your Honour, yes. But you see, Mr Mead in the earlier proceedings it was quite clear that the statement of Mr Misra be put on was all relevant evidence.

PN37

THE SENIOR DEPUTY PRESIDENT: Yes.

PN38

MR WALLACE: Now, as I've said, we've argued that and your Honour has found against us on relevance for items 1 to 6 on our summons. But we still say though that if it is relevant that we should at least get the opportunity to test that evidence with whatever material is available provided by Tristar. If we are successful in the appeal, yes, we would then have to come back though, your Honour. I mean it seems that we would be doing something twice when it's necessary. The Caltex case is a similar matter. That was a section 45D application by Caltex because the various unions including the NUW and the AWU had refused to load tankers for Caltex down in Victoria that comes up and down the coast and Caltex served, made their applications and also served subpoenas at the same time.

PN39

There was considerable resistance comply with subpoenas. They had also sought a hearing date and they got a hearing date of 17 December. Because they were then being held up with their subpoena evidence and they couldn't interrogate the witnesses they then sought an adjournment from Einfeld J and Einfeld J refused, as it says on the front page, your Honour, that to vacate the hearing date, I think in the first paragraph, sought an order that it be granted leave to appeal from the judgment of a single judge of this court, Einfeld J, given on 30 November whereby his Honour, so the motion says, refused to order that the date fixed for the commencement of the final hearing of this proceedings, namely,
17 December, being vacated and from certain other orders made by his Honour regarding statements and interrogatories.

PN40

Now, your Honour, the Full Court heard that matter and if you turn the page, page 114, at about point 5 the Bench - or rather I think it was Lockhart J, referred to Ahearn v Deputy Commissioner of Taxation in Queensland where the Full Court of the Federal Court has said at point 146 of that case:

PN41

It's well established that an appellate court will rarely interfere where the trial judge has exercised a discretion upon an application for an ...(reads)... as to warrant interference on appeal.

PN42

Further down in the last paragraph of that page Lockhart J refers to the argument advanced by counsel for Caltex saying that -

PN43

In not vacating the hearing date the learned primary judge either erred in principle or caused a substantial injustice to Caltex, such that caused for this court's intervention on appeal.

PN44

And then his Honour goes on:

PN45

It was argued that in this case Caltex has been unable to prepare or present this case in an orderly manner and with a reasonable opportunity to ...(reads)... by obtaining suitable witness statements and discovery of documents -

PN46

And so on -

PN47

and has been unable to interrogate the respondents.

PN48

Now, the court made an order, your Honour, overturning, effectively overturning Einfeld Js decision of 30 November and that the hearing date was in fact vacated on the basis that even though the parties concerned, Caltex, had sought that hearing date initially, because of some considerable objections regarding the subpoena evidence they sought, they were not able to be ready to run their case as they saw fit. Now, we're in a similar situation, your Honour. I concede that yes, we could continue today with what we would say will be a very small part of the case and if we're wrong, your Honour, that would be the whole case. But if we're right, your Honour, then it would seem that the only fair and practical of resolving this matter of our objection or our adjournment application, would be to adjourn to a later date following the decision of the Full Bench on the appeal.

PN49

THE SENIOR DEPUTY PRESIDENT: It seems in this matter, Mr Wallace, that the factor influencing the decision was that the timetable had been very tight.

PN50

MR WALLACE: Yes, it was. It wasn't tight when they started, your Honour.

PN51

THE SENIOR DEPUTY PRESIDENT: Yes.

PN52

MR WALLACE: It got tight because of objections and resistance to the subpoenas and the interrogatories.

PN53

THE SENIOR DEPUTY PRESIDENT: In this case it's not as if we've had a tight timetable, is it?

PN54

MR WALLACE: No, your Honour, I'm not suggesting is it actually on all fours but it's an approach that the Full Court took when a party wasn't able to run its case. Initially Caltex sought the hearing date, an early hearing date and got the
17 December, but there was such a welter of evidence that they required from the subpoenas and from answers to their interrogatories that they then weren't able to run their case as they saw fit and argued quite strenuously in this appeal and before Einfeld J that this would cause an injustice and they weren't ready to go on. The court, as I said, in any case, your Honour, granted the adjournment or granted their notice of motion and vacated the hearing date.

PN55

It's really the approach taken to that that we argue before your Honour and it would seem that although the Act does wish the parties to - sorry, wish the Commission to act as quickly as practicable, section 109 of the Act does say the Commission must perform its functions in the way that avoids unnecessary technicalities and facilitates the fair and practical conduct of any proceedings and we say that the fair and practical course to take now would be to adjourn until after the Full Bench has heard the appeal.

PN56

THE SENIOR DEPUTY PRESIDENT: In terms of the avoidance of disputes procedure in the agreement which essentially provides the power within which the Commission is acting, is there anything relevant there?

PN57

MR WALLACE: Just the general relevance of section 109, your Honour.

PN58

THE SENIOR DEPUTY PRESIDENT: Yes. It starts off saying:

PN59

All parties agree it's in the interests of both employees and the company that any dispute is quickly resolved and while be resolved does not affect production or the company's ability to service its customer requirements.

PN60

Et cetera.

PN61

MR WALLACE: Yes, that's the discussion we had. I have a copy of the page here, your Honour.

PN62

THE SENIOR DEPUTY PRESIDENT: And the clause in the various steps - - -

PN63

MR WALLACE: Yes, 23, your Honour, the various steps.

PN64

THE SENIOR DEPUTY PRESIDENT: Yes.

PN65

MR WALLACE: Yes.

PN66

THE SENIOR DEPUTY PRESIDENT: 23.3 talks about notifying the other party at the earliest opportunity and then -

PN67

Sensible time limits must be allowed for completion of the various stages, however stages 1, 2 and 3 must be completed within seven days of notification of the dispute.

PN68

In other words, there does seem to be a theme running through that of timely action by all the parties to resolve the dispute quickly.

PN69

MR WALLACE: Well, that's so, your Honour.

PN70

THE SENIOR DEPUTY PRESIDENT: Yes. I mean apart from the issue of having to come back again if the course adopted were to proceed today and when I say come back again, come back again if the appeal were to be granted and the order issued and the documents provided, apart from that is there any other reason why the matter shouldn't proceed?

PN71

MR WALLACE: Well, your Honour, the difficulty is - I was going to start re-running our argument prior. Your Honour, that is the problem we have, that the evidence that Tristar said was relevant is now before the Commission. We would only be able to test a very small part of that. Yes, but your Honour has made a decision and if that's so, well, we would have to be in a position to continue. But our primary position today is an adjournment.

PN72

THE SENIOR DEPUTY PRESIDENT: Yes. In other words, there's no question of the applicants being denied natural justice by having the opportunity to recall the witness and to be able to proceed should the appeal be granted.

PN73

MR WALLACE: Well, we haven't got - that question hasn't been put to Tristar I don't think.

PN74

THE SENIOR DEPUTY PRESIDENT: No, no. I'm just testing the proposition you put.

PN75

MR WALLACE: No, I mean should Tristar be putting to - agree to that, given an undertaking as to that effect and the Commission were prepared to bring the matter back on again, that would resolve the long term natural justice question, yes.

PN76

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I suppose it's all hypothetical until we hear from Tristar.

PN77

MR WALLACE: Yes. But the decision of course would have to be held we think until the decision of the Full Bench was heard. See otherwise, your Honour, if you went ahead today and then you made a decision on 15 December that would be the end of the matter. We would then be denied natural justice of course.

PN78

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, that's helpful. Well, it's probably appropriate having had that hypothetical discussion to hear from Tristar.

PN79

MR MOIR: Thank you, your Honour. The application is opposed but just on the issue that was raised, Tristar would assume that if the appeal were granted by the Full Bench then the matter before your Honour could be reopened and if the appeal were granted then it would follow from that that Tristar would be required to produce additional documentation and that may necessitate further evidence being heard before your Honour. That assumes however that the appeal which has been jointly lodged by the AMWU and the AWU has some legitimate basis and indeed that's the assumption underpinning the adjournment application that your Honour should defer the resolution of these proceedings pending the outcome of the appeal.

PN80

In my submission a critical factor is whether the appeal that is being lodged would attract the Full Bench's discretion to grant leave. Your decision on 27 October was essentially a discretionary decision but moreover it was a procedural ruling and there is abundant authority in this Commission that appeals from procedural rulings by single members of the Commission will normally not attract leave to appeal and a recent Full Bench decision in that regard is Concept Trading v Finance Sector Union of Australia which is PR945431 and in that case the Full Bench with Giudice J presiding dealt with an appeal from a decision by Vice President Lawler.

PN81

Vice President Lawler had essentially made a procedural ruling during the course of a section 170LW dispute and his procedural ruling was to set aside certain paragraphs of a summons to produce. So it's clearly analogous to the decision that your Honour gave on 27 October and the employer in that dispute filed an appeal whilst the matter was still part heard before Vice President Lawler and sought to overturn the Vice President's procedural ruling on the summons and the Full Bench refused leave to appeal and at paragraph 11 of its decision the Full Bench noted that -

PN82

It is in the public interest to discourage appeals from preliminary or procedural rulings and this is an approach generally adopted by the courts and by the Commission.

PN83

And then the Full Bench went on to quote the well known statement by Sir Frederick Jordan in the case of re the Will of F.B. Gilbert where Sir Frederick Jordan pointed out that there's a key difference between an exercise of discretion on a point of procedure and an exercise of discretion which determines substantive rights. So after quoting that statement by Sir Frederick Jordan the Full Bench then went on and noted that -

PN84

Permitting appeals against procedural rulings may prolong the proceedings overall and favour well resourced parties while working to the disadvantage of other parties -

PN85

Furthermore it was stated by the Full Bench that -

Given the number of procedural rulings which occur, the possibility of a multiplicity of appeals is one to be guarded against. There are other reasons why intervention by an appeal bench at an early stage may be undesirable.

PN86

And they pointed out that even if an error was made by the single member on the point of procedure the party which is aggrieved by such a procedural decision might ultimately be successful in the proceedings overall and in such a case then any early appeal or earlier appeal in relation to the procedural point would be rendered futile. So those were the observations of the Full Bench and on that basis the Full Bench adopted the ordinary approach which was to refuse leave appeal on a point of procedure. In my respectful submission the appeal which is now before a Full Bench of the Commission is not arguable as a prima facie proposition. Clearly in light of those - - -

PN87

THE SENIOR DEPUTY PRESIDENT: But is that relevant to the issue that I need to deal with here?

PN88

MR MOIR: It is in the sense that if your Honour were satisfied that the appeal which is now on foot had some legs to it, then you might be minded to - more minded to exercise your discretion to adjourn this application. However the appeal which was on foot is in my respectful submission clearly unarguable and if the Full Bench were to adopt the ordinary approach leave just wouldn't be granted. The effect of granting an adjournment application then would be simply to create delay and unnecessary delay in the context of an appeal which would become fruitless. That brings me to the second point I wish to make and that is if your Honour were to adjourn these proceedings it would create substantial delay in the proceedings and this is clearly contrary to the policy of the Act.

PN89

Section 108 talks about the Commission acting as quickly as practicable. Moreover, as your Honour has seen from the dispute resolution procedure, it's clearly the intention of the parties to this agreement that disputes of this kind are quickly resolved. That's stated in paragraph 23.1 and then it's reinforced by reference to the time limits which are imposed under the graduated steps found within the dispute resolution procedure. Those steps require that certain things be done within a nominated time frame, so it's clearly the intention of the parties that these matters be resolved quickly and that includes when they're before the Commission as the final step in the process.

PN90

This matter has been on foot now since the end of July. It's not like in the Caltex case where the matter had yet to go to trial. This matter has been on trial for many days now before your Honour, it's part heard. Significant amounts of witness evidence have already been heard and the position of both parties or all parties is that the witness evidence can be resumed but for the adjournment application now being put. Mr Misra is ready to go back into the witness box and Mr Schutz would require some additional cross-examination which should be fairly brief in nature. That would mean that final submissions could be given before your Honour during the course of today and that would effectively bring the matter to an end, subject to your Honour's decision.

PN91

That would be acting quickly or as quickly as practicable in the circumstances. Adjourning the matter would entail an indefinite amount of delay but certainly substantial delay. The appeal is not listed until towards the end of December. We have the January Christmas holiday period coming up. That would mean at the very least that this matter would probably not come back on before your Honour until some time in February and then the evidence would have to be gone through starting with where we're at today, Mr Misra and Mr Schutz. That would entail three or four months additional delay in the proceedings and in my respectful submission that's contrary to the intention of the parties under clause 23.

PN92

Just furthermore on the Caltex decision, apart from the Caltex decision dealing with an application to vacate the trial before the trial had actually commenced, which is clearly not the case here, the Full Federal Court noted that it was an extremely complex case, this is on page 115 of the report, because it involved allegations of contravention of the secondary boycott provisions of the Trade Practices Act and the court noted that it was a case which plainly requires a considerable amount of preparation before trial. Well, that's not the case here. All of that preparation has been done and indeed it's now ready to hopefully bear fruit before the Commission.

PN93

The other point is that the Full Federal Court which relied upon affidavit evidence, this is in the next paragraph on page 115, affidavit evidence about how the matter involved complex issues and it required a number of interlocutory procedures including processes of discovery and interrogatories. In contrast all we have here, your Honour, are assertions from the bar table that in the absence of an adjournment the unions would be substantially prejudiced. That's not a sufficient basis in my respectful submission for a halt to be called in the proceedings when all of the evidence is now on before the Commission and when the appeal which has been lodged by the unions is dealing with a mere procedural point about which leave to appeal would normally be refused. If the Commission pleases.

PN94

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Wallace or Mr Neilson or Mr Currey, how do you want to respond?

PN95

MR WALLACE: Thank you, your Honour, I'll just respond, your Honour, to some of the points raised. You'd have to come to a view on the basis of my friend's submissions that the Full Bench will not entertain the appeal. Well, of course that is before the Full Bench - - -

PN96

THE SENIOR DEPUTY PRESIDENT: That's the view I take, Mr Wallace?

PN97

MR WALLACE: Pardon?

PN98

THE SENIOR DEPUTY PRESIDENT: That's the view I take, that it is a matter for the Full Bench and it's inappropriate for me to have a view on that matter.

PN99

MR WALLACE: Yes. I just say on that, your Honour, that again on the Caltex case, despite the fact that there's complexities and so on, the Full Court of the Federal Court held that if there was a party not able to present its case properly because it cannot get the material it requires then such a case would be suitable for intervention. So we can argue backwards and forwards about whether the Appeal Bench accepts the fact or allows us to appeal or not, but that doesn't get us very far this morning. My friend also speaks about the considerable delay. True it is that the disputes procedure does, on all disputes procedures, on all disputes before this Commission are to be settled as quickly as possible and they're the steps in the dispute procedure, but it cannot be helped but if the matter - if your Honour goes ahead and makes a decision before 19 December then there will be possibly considerable injustice.

PN100

If your Honour doesn't go ahead and make a decision before 19 December then two things could happen. One thing is that we're unsuccessful in our appeal and the second thing is if we are successful and therefore the delay would take place in any case. So if the first premise that the appeal isn't going to be entertained by the Full Bench can't be accepted then we can speculate on how long it's going to take to in fact resolve this dispute. It could be fairly quickly by the end of December, it could be, for instance, some time in February. Unfortunately that's the problem and there's nothing that can be said to help that. Now, my friend says - - -

PN101

THE SENIOR DEPUTY PRESIDENT: Just going back - - -

PN102

MR WALLACE: - - - all preparation has been done. Well, that's our point, your Honour, it hasn't been done.

PN103

THE SENIOR DEPUTY PRESIDENT: Just going back a bit, Mr Wallace, before the issue of the appeal, you know, came into the equation.

PN104

MR WALLACE: Yes.

PN105

THE SENIOR DEPUTY PRESIDENT: It was the submission of both parties that the matter should be dealt with all in all one day, if I recall. I raised the question of how the proceedings - - -

PN106

MR WALLACE: Yes, yes.

PN107

THE SENIOR DEPUTY PRESIDENT: And the proposition was that, well, there would be cross-examination of Mr Misra, the unions might want to put on some evidence in reply and it would be appropriate to immediately deal with submissions, the desire of the parties being to deal with it all in one day. I mean I hear what you say about deciding the matter before 19 December but is there any reason why we shouldn't proceed today and if the appeal is upheld on
19 December then the matter can be reopened, if not the matter will be decided? There will be no need for further proceedings.

PN108

MR WALLACE: Well, that's what would happen, your Honour.

PN109

THE SENIOR DEPUTY PRESIDENT: Yes.

PN110

MR WALLACE: But the matter wouldn’t be decided in one day if we were successful.

PN111

THE SENIOR DEPUTY PRESIDENT: Correct, yes.

PN112

MR WALLACE: We'd have to come back and then go over all this ground again.

PN113

THE SENIOR DEPUTY PRESIDENT: Yes. But nothing would have been lost given the sorts of timing factors that Mr Moir referred to, would it?

PN114

MR WALLACE: Well, not much might have been gained either, your Honour. This is the cleft stick we've given your Honour to decide.

PN115

THE SENIOR DEPUTY PRESIDENT: Yes, yes.

PN116

MR WALLACE: If I might just finish up with two points, your Honour?

PN117

THE SENIOR DEPUTY PRESIDENT: Certainly.

PN118

MR WALLACE: My friend says, well, in Caltex the trial hadn't started and all preparation hadn't been done, but we say that all preparation on our side hasn't been done either, so that is the problem. My friend says, well, all we've got about prejudice or injustice comes from the bar table but you've only got to look at the facts. I mean if the evidence - if we look at Mr Misra's statement and we look at the summons that we issued and connecting as I did carefully before your Honour on the previous occasion, much of Mr Misra's statement can't be tested, except on a question and answer basis. They're my submissions in reply, your Honour.

PN119

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Currey or
Mr Neilson, anything you want to add?

PN120

MR NEILSON: No, your Honour, nothing.

PN121

THE SENIOR DEPUTY PRESIDENT: Okay, thank you. Gentlemen, considering what's been put, I'm not persuaded to adjourn the matter. Noting the indications of the Act and the agreement in favour of timely dispute resolution, in my view the appropriate course is to deal with the matter as was envisaged when it was programmed and if the Full Bench upholds the appeal of course the opportunity is there for the matter to be reopened and the additional evidence provided and Mr Misra of course would therefore be available for cross-examination on that additional material. I see no denial of natural justice in such a course and that is the course I propose to adopt.

PN122

MR WALLACE: If your Honour pleases. Your Honour, I have a further application to make in that case.

PN123

THE SENIOR DEPUTY PRESIDENT: Mr Wallace.

PN124

MR WALLACE: Your Honour, the previous submissions if I may just take your Honour to - or take your Honour over them. In the course of the matter your Honour will remember when we came, I think it was on the - I can't remember the date now, we came back here and it was argued from the union's side that the matter in fact, all the evidence that was required was before your Honour.
Mr Mead who is not here now argued that - - -

PN125

THE SENIOR DEPUTY PRESIDENT: That was 16 October.

PN126

MR WALLACE: Yes, 15th.

PN127

THE SENIOR DEPUTY PRESIDENT: 16th.

PN128

MR WALLACE: 15th and the 27th, wasn't it, that he had the two matters. But in fact Tristar should be allowed to put on further evidence, that was your Honour's decision in that matter and that evidence went on in the form of Mr Misra's statement. Now, I refer your Honour to a transcript and the argument on that day, if I can find it. I think it's page 664, your Honour.

PN129

THE SENIOR DEPUTY PRESIDENT: Mine doesn't have pages.

PN130

MR WALLACE: Paragraph, sorry.

PN131

THE SENIOR DEPUTY PRESIDENT: Yes. 16 October.

PN132

MR WALLACE: Paragraph 664, yes, on 16 October. Was it the 15th or the 16th, your Honour?

PN133

THE SENIOR DEPUTY PRESIDENT: It was the 16th. Yes.

PN134

MR WALLACE: Do you have it there, your Honour?

PN135

THE SENIOR DEPUTY PRESIDENT: Yes.

PN136

MR WALLACE: As part of the submission on whether to be allowed to put on further evidence, as you will remember, the unions objected to that course,
Mr Mead said:

PN137

Well, now we would say, your Honour, in respect of the evidence of Mr Misra the nature of the evidence that will be provided is distinctly relevant to these proceedings and a determination of the merits of this matter.

PN138

Now, having put the evidence in that category as distinctly relevant it was the position of Tristar when we sought our summons, and you will remember, your Honour, I went to each paragraph of our summons and tied it in with various paragraphs of Mr Misra's statement, that in fact Tristar put on in response to our application for the summons that it was oppressive and it was irrelevant and so on. So it was opposed at every step except for paragraph 7 which we did have some measure of agreement. Now, your Honour, I will just take you through - - -

PN139

THE SENIOR DEPUTY PRESIDENT: No, paragraph 7 was opposed also.

PN140

MR WALLACE: Pardon?

PN141

THE SENIOR DEPUTY PRESIDENT: Paragraph 7 was opposed also. Paragraph 7 I found in favour of the union - - -

PN142

MR WALLACE: No, I think we gave some measurement of agreement on some aspects of paragraph 7.

PN143

THE SENIOR DEPUTY PRESIDENT: No.

PN144

MR WALLACE: Didn't we? None at all?

PN145

THE SENIOR DEPUTY PRESIDENT: No.

PN146

MR WALLACE: It was an agreement, yes, it was an agreement on the document. I think what happened, your Honour, yes - - -

PN147

THE SENIOR DEPUTY PRESIDENT: You will recall that in fact despite the submissions of the company, I found in favour of the union, of the union's application for a summons.

PN148

MR WALLACE: In paragraph 7?

PN149

THE SENIOR DEPUTY PRESIDENT: Yes.

PN150

MR WALLACE: Yes, yes. I was confusing with what we had some agreement on a document going to that question but we didn't, as you say - we did meet an objection for the whole of the summons then. Your Honour, what I did was to tie in with Mr Misra's statement various parts of our summons and on that basis we have paragraphs 1 to 6 of our summons related to paragraph 6, 7, 16, 20 - - -

PN151

THE SENIOR DEPUTY PRESIDENT: But Mr Wallace, I've already ruled on this.

PN152

MR WALLACE: Yes, I know you have.

PN153

THE SENIOR DEPUTY PRESIDENT: So what is it that you're raising?

PN154

MR WALLACE: But, your Honour, what I'm going to suggest now is that these paragraphs of Mr Misra's statement be struck out as not relevant.

PN155

THE SENIOR DEPUTY PRESIDENT: So that wasn't an application made at the time. It's already been admitted as evidence.

PN156

MR WALLACE: Well, yes, it was admitted on the basis of the evidence because we believed that that evidence was relevant ourselves. We objected to any evidence going in but once it went in we didn't object to it going in because then we issued the summons to get documentary evidence so that we could test the evidence.

PN157

THE SENIOR DEPUTY PRESIDENT: But how can that evidence now be struck out given that it's been admitted?

PN158

MR WALLACE: Well because, your Honour, our summons goes to those paragraphs of Mr Misra's statement and we're not in a position to test them.

PN159

THE SENIOR DEPUTY PRESIDENT: Well look, Mr Wallace, if the Full Bench upholds the appeal obviously that's a matter to be revisited, isn't it?

PN160

MR WALLACE: Well, that's right, your Honour, but we're saying if we're going to go ahead today we could only go ahead on a very limited basis. If Mr Misra's evidence on those issues stays in we're not in a position to cross-examine on them.

PN161

THE SENIOR DEPUTY PRESIDENT: So the paragraphs were which ones again?

PN162

MR WALLACE: Well, the paragraphs I related - I have the pages of the transcript or the paragraphs of the transcript. Paragraph - I will give you the paragraphs of Mr Misra's statement, I think that will be easier, your Honour.

PN163

THE SENIOR DEPUTY PRESIDENT: Yes.

PN164

MR WALLACE: Paragraph 4, 6, 7, 16, 19, 20, 23 and 24.

PN165

THE SENIOR DEPUTY PRESIDENT: Very well.

PN166

MR WALLACE: We say that they are the paragraphs in which Mr Misra's statement for which we sought summons material in our summons paragraphs 1 to 6. They're my submissions, your Honour.

PN167

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN168

MR NEILSON: Your Honour, can I just perhaps make one or two brief submissions on that point?

PN169

THE SENIOR DEPUTY PRESIDENT: Certainly.

PN170

MR NEILSON: Your Honour will recall that as Mr Wallace outlined, there was some objections to Mr Misra giving evidence in the first place on the basis of what we said was - - -

PN171

THE SENIOR DEPUTY PRESIDENT: Just as there were objections to
Mr Schutz giving evidence.

PN172

MR NEILSON: No, no, I appreciate that, your Honour, and your Honour's made rulings on that and I'm not contesting those particular rulings, I'm just outlining how it is that we see that this matter is proceeding. Mr Misra gave evidence on the basis of a statement that has been tendered in these proceedings. That statement was provided to the unions approximately five minutes before the commencement of the proceedings on that particular day and your Honour will recall that at the time of the statements being tendered by Mr Mead the unions specifically reserved their rights to object to any parts of the statements on the basis that they not had not had the opportunity to review the contents of the statement and it was on that basis that the Commission granted the adjournment would take place following the evidence-in-chief of Mr Misra. That evidence-in-chief was completed and - - -

PN173

THE SENIOR DEPUTY PRESIDENT: Just remind me, Mr Neilson, when that statement was provided did we take an adjournment so we could all read it?

PN174

MR NEILSON: I don't recall that we did, your Honour. My understanding was that - - -

PN175

THE SENIOR DEPUTY PRESIDENT: Yes, I don't recall either.

PN176

MR NEILSON: I think that your Honour took an adjournment to consider the question of whether or not it should be admitted and then your Honour came back, on my recollection and I would have to review the transcript in some detail, and made a determination that it should be admitted and then it was admitted on the basis that Mr Misra would be available for examination-in-chief on that particular day, which Mr Mead subsequently did and closed and that the unions would be entitled to come back should it be necessary for cross-examination of Mr Misra and to deal with any evidence or any issues that they had with the form of the evidence that had in fact been provided.

PN177

The next occasion that we came back before your Honour was the question of the summons purely. It was not deal with in the evidence of Mr Misra and whether in fact it was relevant for the determination of the proceedings and it's on that basis that the unions now assert that on the basis of your Honour's ruling on the question of whether or not the summons should be granted that the paragraphs that we have cited are indeed irrelevant for the determination of these proceedings on the basis of in fact your Honour's own ruling that the summons material that was sought in the summons that was filed by the union was in fact not relevant to the issue that you had determined to be in dispute and we therefore say logically applying that conclusion the evidence of Mr Misra is therefore irrelevant to those very same issues.

PN178

THE SENIOR DEPUTY PRESIDENT: Well, that's only if the - I mean that depends on the characterisation of that evidence, doesn't it?

PN179

MR NEILSON: It does, your Honour, insofar as that - but you will recall on the last occasion that Mr Wallace specifically took the Commission to the various paragraphs of Mr Misra's statement that we say linked into the material that was sought in the summons and your Honour subsequently characterised that by ruling that they were not relevant to your characterisation of the dispute. So we say that your Honour has effectively characterised the evidence as irrelevant and therefore we can see no assistance for the Commission in having the material before the Commission. The submission that we make we see as being the logical conclusion of your Honour's determination on the issue of the summons.

PN180

THE SENIOR DEPUTY PRESIDENT: Yes, I understand.

PN181

MR NEILSON: I was hoping that that would assist your Honour but I understand that I've probably been more involved in these proceedings than
Mr Wallace given the length of the matter.

PN182

THE SENIOR DEPUTY PRESIDENT: Yes. Just looking at the transcript of those proceedings, it looks like - no, sorry, I'm looking at the wrong place. How does the company want to respond?

PN183

MR MOIR: Your Honour, the unions say that it is logical for the Commission to reject those paragraphs of Mr Misra's statement because of the ruling you made on the summons and as I understand it the unions argument is that because you rejected categories 1 to 6 of the summons and because those categories were linked to the paragraphs in question in Mr Misra's statement it logically follows that the summons category is 1 to 6 and not granted, then those paragraphs should also be struck out. In my respectful submission if one applies logic it should be the other way around. Mr Wallace put to you on the previous occasion rather extensively how each of those categories was apparently relevant to certain paragraph in Mr Misra's witness statement and you'll recall Mr Wallace took you through each of the categories and then attempted to link those categories to particular paragraphs within Mr Misra's statement and the submission was put, well, if it's relevant for the company to include those paragraphs within its statement then it's relevant for us to seek production of these documents.

PN184

Your Honour did not accede to that request and indeed it's implicit within your Honour's ruling that you rejected the connection which was being advanced by
Mr Wallace and the unions between the categories 1 to 6 and the particular paragraphs of Mr Misra's statement. Your Honour did not accept that it logically followed that categories 1 to 6 ought to be produced because of the contents of
Mr Misra's witness statement. That is simply a matter of logic and it's implicit within your Honour's ruling. Given that your Honour has rejected that there is a nexus or proximity between the relevant categories in the summons and
Mr Misra's witness statement, your Honour should reject this application.

PN185

If I could turn to the relevant paragraphs of Mr Misra's statement which are in question and I'll be very brief on this, your Honour, because I know my friends have not gone through each of the paragraphs in any detail, they've just put it to you as a general proposition that they ought to be rejected. If one looks at the paragraphs in question, in my respectful submission they are of relevance to the dispute before your Honour. The unions have characterised the dispute as dealing with three issues. Each of the paragraphs deals with those three issues although some of the paragraphs provide what might be described as background material. For example, paragraph 6 which the applicants say is now irrelevant deals with how many employees there were at the site.

PN186

It's hard to see how that sort of information would not be relevant to your Honour. That provides your Honour with some assistance about the nature of the site and the number of employees involved. Paragraph 4 is in the same category, it provides relevant background material. Paragraph 7 is the same, it provides context to the dispute. Paragraph 16, 19, 20, 23 and 24 concern one of the key issues which is on foot before your Honour, namely, the direction by the respondent for certain employees to perform remanufacturing work. In my submission it's impossible to see how those paragraphs are not relevant to your Honour's determination.

PN187

Of course it's a matter as to how much weight your Honour might put upon those paragraphs given that some paragraphs express matters of opinion, matters of opinion which are also reflected in Mr Schutz's evidence. Ultimately it's for your Honour to determine the issues at stake, but nonetheless your Honour might be assistance by the evidence contained in those paragraphs and the contents really go to the sufficiency of the evidence, not its admissibility. If the Commission pleases.

PN188

MR WALLACE: Nothing further in reply, your Honour.

PN189

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Gentlemen, at paragraph 7 of my decision I said:

PN190

In this case the company has been reducing the number of its employees and the dispute is now over the company's direction to the remaining employees to perform ...(reads)... to transfer from afternoon to day shift.

PN191

From looking at the paragraphs of the statement in question I'm unable to agree with Mr Wallace's submission that that material would not be relevant to dealing with the dispute as characterised and I don't accept the application. Unless there's anything further, I believe Mr Misra will be in the witness box for cross-examination. What's the next one, Mr Wallace?

PN192

MR WALLACE: There's nothing further, your Honour.

PN193

THE SENIOR DEPUTY PRESIDENT: Thank you.

<AMIT KUMAR MISRA, RECALLED ON FORMER OATH [11.09AM]
<CROSS-EXAMINATION BY MR NEILSON

PN194

MR NEILSON: Mr Misra, you are engaged as the operations manager at Tristar Steering and Suspension?---Yes.

PN195

And how long have you been engaged in that particular position?---From December 2002.

PN196

Can you provide an outline of some of the duties that you perform as part of your operations managerial role?---Day to day management of the production and general operations of Tristar.

PN197

And Mr Misra, are there other managers at Tristar that perform similar roles to you?---No.

PN198

So you are pretty much, it would be fair to say, the sole manager out there directing the operations of Tristar and the employees at the moment?---That is correct. I have got managers, ..... managers reporting to me. They are responsible for certain, distinct functions.

PN199

I will just excuse Mr Schutz so he doesn't hear the evidence of Mr Misra. Can your Honour just excuse me for one moment?

PN200

THE SENIOR DEPUTY PRESIDENT: Yes.

PN201

MR NEILSON: Mr Misra, what type of material or product would Tristar formerly produce?---Formerly?

PN202

Yes?---Tristar was producing steering gears and ball joints primarily. Also we were manufacturing ......

PN203

And the steering gear and ball joints, was it that you referred to, they were provided to major car manufacturers in Australia?---Yes.

PN204

And does Tristar have any contracts to produce those materials for anyone at the moment?---No, apart from the ..... orders for Toyota which are yet to be fulfilled. But there is currently an order which needs to be completed.

PN205

And when will that order be completed?---We are expecting that to be completed by December.

**** AMIT KUMAR MISRA XXN MR NEILSON
PN206

And how many parts are encompassed - - - ?---For steering gears - - -

PN207

If you just let me finish my question?---Sorry.

PN208

How many parts are encompassed in that order?---For steering gears approximately 250 parts. There are some orders for certain sub assemblies which go into the steering gears. There are orders for approximately 5000 of those which we expect to complete some time next year because the orders came through late.

PN209

And at its peak operations how many parts per day would Tristar produce?
---Steering gears about 1400, 1300 per day. Ball joints, I have to work out the number but 180 to 200,000 parts and there are two per so 400,000 per year divided by about 230 number of days.

PN210

So it's fair to say that the remaining orders - - - ?---Substantial number.

PN211

That the remaining orders that remain outstanding that Tristar produce will be completed in a very short period of time?---We expect to complete by February, March.

PN212

Now, Mr Misra, you as the manager are responsible for the ongoing operations of Tristar have conducted an assessment, presumably, of the skills that Tristar requires into the future?---For the kind of work that we are going to perform in future we have reviewed what sort of skills and people do we require.

PN213

And what type of work do you want to produce in the future?---We are expecting to carry out remanufacturing work of steering gears.

PN214

And how many employees does Tristar currently employ?---I believe approximately 30 shop floor employees.

PN215

And you have conducted an assessment of each of those employee's skills and assessed that against the future production requirements of Tristar?---Yes.

PN216

And do you have a copy of that particular skills assessment that you've conducted handy?---We have known these employees for many years and this assessment has been done as a team by a number of people within the company and that team obviously I was a member of that team.

**** AMIT KUMAR MISRA XXN MR NEILSON
PN217

So you - - - ?---Can I complete the question?

PN218

Sorry, yes?---We looked at what is the requirement to - what sort of skills and people we require to carry out the remanufacturing work and remanufacture, because of the volume of the remanufacturing work and type of activities of required for the remanufacturing work we basically decided on a certain number of people for certain skills and have carried out certain types of work, our activities in the past.

PN219

Now, you say that you conducted that as a team, was that assessment conducted in writing or electronically?---No, it was not.

PN220

So effectively - - - ?---It was electronically to the extent that we put a list together of which are the employees that should remain back, who should continue to work in Tristar because there was a written electronic copy, yes.

PN221

So the only effectively assessment criteria that you have recorded is a list of names of who you decide that should be retained by Tristar?---Yes.

PN222

So it's not the case, Mr Misra, that you sat down with your team, as you referred to it, and created a written criteria that said, for instance, years of service and any particular skills and then you rated the employees, you haven't got anything like that?

PN223

MR MOIR: Your Honour, I object to that. I'm not sure that the witness answered the first proposition that the only skills assessment in writing was the list of names. I'm not sure that the witness answered that proposition.

PN224

THE SENIOR DEPUTY PRESIDENT: Do you want to rephrase the question, Mr Neilson?

PN225

MR NEILSON: Well, your Honour, Mr Misra did.

PN226

Is it the case that the only written assessment criteria that you have is the list of names that you've referred to?---We have got a list which contains which section they're working to, they did work in the past, the name of the employee that signifies the section what that person did and the years of experience that person has that list contains that.

**** AMIT KUMAR MISRA XXN MR NEILSON
PN227

And it only contains their name, their area of responsibility and their years of experience?---Yes.

PN228

And in fact, Mr Misra, one of the key areas for Tristar in deciding who and who was not to be made redundant was in fact their years of experience, wasn't it?
---That was one of the criteria.

PN229

And the reason that their years of experience is important is because those employees are entitled to claim redundancy entitlements under the terms of the enterprise agreement, is that not the case?---The company has not made a decision that those employees will be made redundant. In fact when I look at the number of employees who have actually been made redundant there are a number of employees who have worked in Tristar say between 25 to 30 years or 31 years in Tristar and still have been made redundant. If that was the only criteria, the number of years of service, then there are people in Tristar now who have got less than 25 to 28 years of service, they should have already been gone.

PN230

Now, Mr Misra, how many - if you can give a rough approximation of how many employees you've selected for redundancy in the past say six months?---How many employees we have selected in the past six months? It will be very difficult for me to give you an accurate figure.

PN231

If you can give a rough approximation?---Six months that means going back to June, probably - it's very difficult to guess. I can only give a rough, very, very rough figure, between 60, 70.

PN232

60 or 70. And how was it that Tristar determined that those 60 to 70 employees should be made redundant?---Based on this section they worked in, what sort of activities they performed, whether those activities, those employees can be utilised to carry out remanufacturing work which we believe we will be engaged in in future.

PN233

Now, let's focus on that remanufacturing work. What type of machinery does Tristar require to perform this type of manufacturing work?---It requires disassembly tools, the work benches. It requires hydraulic testing facility. It requires assembly benches. It requires some electronic equipment, like XY plotters, et cetera, to carry out the testing.

PN234

And does Tristar presently have that equipment available to it at its Marrickville premises?---Yes.

**** AMIT KUMAR MISRA XXN MR NEILSON
PN235

It does. Is Tristar currently effectively removing all other equipment from its Marrickville premises in terms of machinery and lines referred to as rack line, pinion line, sleeve line?---That is correct, excess equipment which are not likely to be used for remanufacturing in the near future is being moved to Caringbah for storage.

PN236

So when was the decision made by Tristar that it was going to remove that material?---That machine?

PN237

That machine, sorry?---That decision was made probably two months or three months ago.

PN238

Two or three months ago?---As far as I know.

PN239

And how many employees have Tristar made redundant in that three month period?---Again it's very difficult to put a number because - - -

PN240

Can you make an approximation again, Mr Misra?---In three months, less than - I would guess probably between 10, 15.
Now, there are a number of lines formerly operating at Tristar. I think it would be fair to say that there was a rack line?---Yes.

PN241

And are you aware of how many employees Tristar have kept who were formerly employed in the rack line?---As of today?

PN242

As of today?---One or two I think.

PN243

One or two. Would it be fair to say that Mr Kokinovski was one of those employees?---Yes.

PN244

And Mr Milos was the other one of those employees?---Yes.

PN245

What particular skills do they possess that require them to be retained by Tristar?
---Kokinovski was the setter. He has the skills to set the machines, particularly grinder which is perhaps the only task that would need to be performed on remanufactured gears if we don't replace the rack. We have already introduced quite a number of racks, kept them ready for grinding. We have heat treated them, kept them ready up to the grinding stage. If we grind them once they go rusty we can't use them so we have kept them heat treated ready for grinding with the expectation that in future if we need these racks to be ground we can do it. So Simon Kokinovski has got the skills to set up the grinding correctly and carry out the process.

**** AMIT KUMAR MISRA XXN MR NEILSON
PN246

And Tristar currently has a grinder machine available to it at the moment?---The grinder will be moved but it can be called in as required. We have storage. In the storage of the machine there is a logic being applied to that and in fact that also applies some of the equipment that are required in January they're also being disconnected now and they're removed and connected as and when necessary, which is probably end of January we still have to reconnect them. Because we are moving from our current site to another site we have to move the machines as required. We can't keep the machines in the current location.

PN247

So let's break that down. Tristar has a requirement for Mr Kokinvoski to set the grinder?---If the need arises.

PN248

I'm just trying to understand your evidence. Tristar has a particular requirement for Mr Kokinovski to set the grinder, that's what you said, that's why his particular skills are required, is that correct?---That is correct.

PN249

And Tristar requires the grinder to be available to it to remanufacture the steering racks that it wants to do, that's correct?---That is correct. There is a bit more to it though.

PN250

Yes, but just answer the question. Is that correct?---Yes.

PN251

Yes, thank you. Now, Tristar have made a decision to remove the grinder from the Marrickville premises and locate it elsewhere, is that correct?---Yes.

PN252

And has that grinder been removed at the moment?---No.

PN253

And when will it be removed?---In the near future.

PN254

So Tristar in order to produce the material that it says it wants to produce requires Mr Kokinovski to set the machine. The machine is being removed from the premises, how is it then logical that Tristar can maintain that it adequately wants to continue remanufacturing steering gears when the machine in fact has been removed?---What Tristar is trying to do is keep those employees who will be required to carry out remanufacturing work and we have always said that the remanufacturing work will involve what they were originally performing the tasks that they were performing originally, as well as the tasks which are related to remanufacturing and when we look at the tasks which are related to remanufacturing there are operations like manual honing, cleaning, polishing and those sort of works which Simon Kokinovski should be able to do. Not just Simon Kokinovski, there are many other employees who will do similar kind of work which is over and above what they were doing previously because the previous task, as we have said has diminished as and when the original work becomes available they will do the original work that they were employed to perform but ongoing they will be involved in remanufacturing business which involves machining, honing, grinding, lapping, that sort of work of which we have already got equipment at Marrickville.

**** AMIT KUMAR MISRA XXN MR NEILSON
PN255

So as it stands at the moment the machine that's being moved, there's no real work for Mr Kokinovski to perform, is there?---Not on that particular machine but there are other work available for remanufacturing which are within the skills and competencies of Mr Kokinvoski.

PN256

Of course, well, that's what you maintain. But the very skills that you retained him for you have no retained him for you have no requirement for at the moment?---Right at this point of time, no.

PN257

Thank you. Now, Mr Misra, in one of your earlier evidence and I want to go on and deal with some other employees in a moment, but you said that Tristar had made a decision to move?---The excess equipment.

PN258

You're now qualifying your answer that Tristar in fact is not moving premises from its Marrickville that they're only moving the excess equipment?---That is correct. I think this has been told to the union previously as well.

PN259

I'm just clarifying your answer, Mr Misra. Let's focus on Mr Milos who was the other employee engaged on the rack line. Do you know Mr Milos?---Vaguely. I don't have great deal of knowledge about Milos.

PN260

Sajinovic?---Sajinovic.

PN261

And what particular skills does Mr Milos present for - well, what particular skills does Mr Milos possess that Tristar continue to require?---My understanding is Milos is going to perform a number of tasks on the rack line. He's a flexible operator and he can carry out a number of tasks.

PN262

Okay. So he's a flexible operator and you said he's able to carry out a number of tasks on the rack line, is that correct?---Rack line, general machining, yes.

PN263

So your answer just a moment ago was the rack line?---He's employed on the rack line but he can carry out a variety of tasks. He's a flexible operator.

PN264

Now, what's happening to the rack line at the moment?---As we have said, the majority of the rack line were removed to Caringbah for storage.

PN265

So the rack line is being removed because it's no longer needed and it's not anticipated that it will be needed in the near future?---No, we didn't say that. What I said is it's not needed at present, there may be a need for certain equipment to be pulled out in future, depending upon how the remanufacturing business picks up.

**** AMIT KUMAR MISRA XXN MR NEILSON
PN266

But it's all very speculative because Tristar have got no contracts, do they?---That is correct.

PN267

Tristar have no contracts whatsoever to reproduce, remanufacture steering gears, do they?---That's correct. The company has taken on its own to build up a number of gears to get involved in remanufacturing work and get some business.

PN268

Mr Misra, the case is really, isn't it, that Tristar is just maintaining a facade of keeping these employees technically or supposedly employed and active so as to keep them on long enough so that it can make its application to terminate the certified agreement, isn't that the case?---I don't want to speculate why. That's your interpretation. The direction that I have got from the company, that we want to get into remanufacturing, we want to maintain these people, we want to carry out certain tasks. What happens in future I cannot speculate.

PN269

And are you aware, Mr Misra, of what steps Tristar have taken to secure contracts, presumably to sell these remanufactured gears?---I have got some. I have got some idea about that.

PN270

And can you elaborate what steps they've taken?---They have contacted a number of customers, potential customers, had discussions with them and as far as I am told, some of the discussions are advanced stages.

PN271

Are those discussions reflected in documentation?---In what way?

PN272

Well, you said that you're aware that Tristar has approached a number of customers?---I'm aware that there have been meetings with a number of customers.

PN273

And is there any documentation reflecting that fact?---I have not been involved in these meetings. My boss has been involved in those meetings so I do not know what level of documentation is available from those meetings.

PN274

But your boss hasn't told you, right, Mr Misra, get ready, we've got a contract, we're going to proceed full speed ahead with remanufacturing steering gears, has he?---My boss has told me that proceed full steam ahead with remanufacturing of steering gears and build up the stock of steering gears because that's the minimum requirement to get into the manufacturing work, which we are trying to do.

**** AMIT KUMAR MISRA XXN MR NEILSON
PN275

Has your boss put a time limit of how long they're going to continue to try to get into the manufacturing work?---Under the situation that we are in, where we have completely stopped the manufacturing of steering gears because of the status quo ban, the time limit is irrelevant. This should be done now. The direction was get started with it and do now. We, in fact, made a few gears in the factory, we have sold a few gears. We were working towards building up a bank of gears when this ban came in.

PN276

Mr Misra, it would be fair to say that - and you may have participated, Tristar would have conducted an analysis of the steering gear market. Is that the case? Are you aware of that being done?---I am aware that they have had meetings with various parties and they obviously have made some assessment before - they made an ongoing assessment during the discussions.

PN277

Because it makes business sense, doesn't it, Mr Misra, to assess a market that you're trying to enter into, doesn't it?---Certainly.

PN278

So it would be fair to say that Tristar has assessed the market that it wants to enter into?---That's correct.

PN279

And it has assessed the level of losses it's prepared to sustain so as to enter into that market?---I would not say that they would have assessed the level of losses. It could be a level of profit as well with the few employees that we have.

PN280

That's correct, because they may very well get more contracts, isn't that right?
---That's correct.

PN281

They may very well not get the contracts, isn't that right?---That is correct.

PN282

So presumably Tristar, if it really wanted to enter into this particular market, would have assessed, well, this is what could happen if we get the contracts and this is what will happen if we don't get the contracts. Is that correct?---I don't know. I did not make those assessments.

PN283

So you don't know whether documents exist to that effect?---That's correct. I mean, profit and loss and those things are not under my area, my umbrella.

PN284

Mr Misra, there was a line at Tristar called the ball joint line. Are you aware of that?---Yes.

**** AMIT KUMAR MISRA XXN MR NEILSON
PN285

What is happening to the ball joint line at the moment?---In the ball joint line, there's some work that is coming up, the 5000 ..... for Toyota, that order has come through. We have to dismantle some machines, re-installed them somewhere else and produced those parts.

PN286

When you say dismantled some of the machines and re-installed them somewhere else, what do you mean by that?---Because we are moving the excess equipment to Caringbah and we are relocating it at another part of the Marrickville site, so we'll have to move the machines either into Caringbah and reconnect it to carry out those specific parts or we move into the existing Marrickville site and carry out those tasks.

PN287

So the production capabilities for the ball joints, it's not really there at the moment, you have to reassemble the machines?---The capability is there, but the machines - they assemble the connection and reconnection, that's what I was referring to. The machines will be disconnected from the Caringbah site because we are moving into a different part at the Tristar site and they have to be reconnected to run those specific - to make those specific parts.

PN288

Didn't you just say a moment ago and you'll correct me if I'm wrong, that the ball joint machines were being relocated to Caringbah?---There are a number of machines there, there may be about 20, 25 machines and all those machines are not required to carry out the work that we have got. Some machines will be relocated. In fact, the majority of them will be relocated to Caringbah.

PN289

So how many employees do you need to perform the work for Toyota in the ball joint area?---One or two, two perhaps.

PN290

And how many employees continue to remain who were formerly employed in the ball joint area? Do you know how many there are?---To the best of my memory, two.

PN291

Would it be Mr Gosano and Mr Hrycyk?---Yes, that is correct.

PN292

What particular skills does Mr Gosano possess that require Tristar to keep him employed?---He can do the assemblies and he's suitable to carry out any work related to the manufacturing, because the manufacturing involved assembly and disassembly.

**** AMIT KUMAR MISRA XXN MR NEILSON
PN293

Mr Gosano has 33 years' service with Tristar?---I don't know that off the top of my head. That could be right.

PN294

I put it to you that he does?---Yes, it could be right.

PN295

What particular skills does Mr Hrycyk possess that requires him to be retained at Tristar?---Similar. He has got assembly skills and the manufacturing, general process work, assembly and disassembly.

PN296

How many employees were formerly engaged in the ball joint area, say in January 2006?---Again, very difficult to answer.

PN297

Could you give an approximation?---Maybe 15, 12 to 15.

PN298

So Tristar roughly has made redundant this year approximately 10 employees from the ball joint area?---Approximately.

PN299

What particular skills did Mr Gosano and Mr Hrycyk possess over and above those 10 employees who have been nominated for redundancy?---Similar skills, but they can also do the manufacturing work, so obviously a number of the service was one consideration, but also the capability to carry out the manufacturing work was another consideration, whether they can carry out those tasks or not and the decision was made accordingly.

PN300

So you said they had similar skills to the other 10 that have been made redundant?
---Some, not all of them, sorry, I must tell you. There are some with specific machining skills out of those.

PN301

Who?---The ball joint area involves ball joint assembly and ball joint machining. There were out of those 12 to 15 that I said, there were a number of them who were in the ball joint machining area.

PN302

Okay, let's focus on those employees in the ball joint - - -?---Mostly they have specific machining skills, so they have - - -

PN303

Let's focus on those that were in the ball joint assembly area. How many of those were there?---Probably four or five.

PN304

What particular skills did those four or five - sorry, what particular skills do Mr Gosano and Mr Hrycyk possess over and above the four or five who were made redundant?---Had similar skills. Eugene is probably the best operator on the assembly. I'm not so sure about the other person, Gosano, but I have heard quite a number of times during discussions that he's very good, very experienced.

**** AMIT KUMAR MISRA XXN MR NEILSON
PN305

What do you mean you're not too sure about Mr Gosano? What does that mean?
---How much better he was compared to the other employees who have been made redundant.

PN306

Mr Misra, you've given evidence before this Commission that you conducted and were participating in an assessment of these employees' skills for the purposes of retaining their services and now your evidence is that you don't even know what Mr Gosano does?---I do know what he does. He does ball joint assembly, as I said. What I also said, Mr Gosano does ball joint assembly. We looked at the suitability of any employee to carry out the tasks that they were performing and also that in manufacturing work that they would be expected to perform, whether that employee is suitable to carry out that manufacturing work as well.

PN307

What was the criteria to consider whether or not an employee was suitable for manufacturing work?---We looked at what's required in the manufacturing. We have done quite a number of gears in the factory, we have produced a number of manufactured gears in the factory, so we understand what's required in the manufacturing which is basically disassembly, rework, some of the process work like washing and cleaning, putting new parts in and doing the assembly.

PN308

So what skills does Mr Gosano possess over and above the four or five - - -?---In terms of process work and assembly skills, a general understanding of assembly.

PN309

Did you test the employees on their understanding of assembly in order to come to that conclusion?---A lot of employees have already performed assembly work and the manufacturing work and we are fully aware that they are capable to do that, we have tested that, because we have made approximately 200 gears.

PN310

And the tests that you've conducted, are they reflected in writing anywhere?
---They don't need to. This is a very established product and these people have been doing the work related to assembly and disassembly for many years. It's not a new employee that we would go about and start writing what they can do and what they can't do. These people are very experienced because they can carry out this sort of work.

PN311

Mr Misra, your evidence before the Commission is that you conducted an assessment of these employees to determine who is required and who wasn't required.

**** AMIT KUMAR MISRA XXN MR NEILSON
PN312

MR MOIR: I object to that, your Honour. I don't think the witness said that earlier this morning.

PN313

MR NEILSON: He can answer the question.

PN314

THE SENIOR DEPUTY PRESIDENT: An objection is being taken, Mr Neilson.

PN315

MR MOIR: What I recall is the witness said that he had participated as part of the team to assess the skills needs of the business into the future. Now, that's not necessarily the same as what my friend is putting to Mr Misra, that he said earlier in his evidence that he had conducted an assessment of these employees. I assume that means the employees within the ball joint area, some of whom, or the majority of whom were made redundancy. Mr Misra talked earlier in his evidence about an assessment of skills for the future which was conducted as part of a team. It's not clear when that assessment was done or whether it related to the assessment which my friend is now positing about the ball joint area and the employees within that area.

PN316

MR NEILSON: Your Honour, the next time Mr Moir wants to make submissions from the bar table, I would ask that he excuse the witness. I will rephrase the question, your Honour.

PN317

MR MOIR: It's not up to me to ask the witness to be excused. My friend could cause that to occur, sir.

PN318

MR NEILSON: Mr Misra, you answered that you were part of a team in assessing the criteria. Do you recall that evidence?---Yes.

PN319

Who was part of this team?---The shop supervisor.

PN320

Can you provide names?---Adam Grant, Ivan Bosinski, myself and the director.

PN321

And who is the director?---Mr Chen Hong.

PN322

And what knowledge does Mr Chen Hong have of Mr Gosano, for instance?---He has some knowledge about what these people do. He asks questions to understand what these people do and he certainly has got some level of knowledge. I don't know what level of knowledge he has, but he has got some level of knowledge.

**** AMIT KUMAR MISRA XXN MR NEILSON
PN323

I asked you what particular knowledge does Mr Hong suggest of Mr Gosano, not these people?---Mr Gosano, what work he does, how many years he has been in Tristar, his gender, male, female, his salary, his wages.

PN324

Would he be aware of his years of service?---Yes.

PN325

In fact, Mr Misra, isn't it the case that the reason that Mr Gosano was kept on was because of his length of service? That was the sole determinating factor in Tristar's decision to retain his services?---I would not say that's the sole criteria. That would be one of the criteria.

PN326

And because Mr Gosano, if he was paid out on a redundancy would be entitled to four weeks per year of service uncapped, is that correct?---Under the EBA, all employees are entitled to same entitlements on redundancy.

PN327

And Tristar do not want to pay that redundancy to Mr Gosano because of his length of service?---The company has made a decision not to make Mr Gosano redundant. Whether it's because of his length of service or other factors, it could be a number of issues.

PN328

Mr Misra, there was a line formerly at Tristar called the sleeve line. Are you aware of that line?---Yes.

PN329

Can you outline what was produced on the sleeve line?---Sleeves, as the name implies.

PN330

What do you mean by the sleeves?---A sleeve is a part of the steering gear.

PN331

How many employees were employed on the sleeve line in say January 2006?
---Probably four, three, four, five.

PN332

How many employees who were formerly on the sleeve line remain employed by Tristar at this time?---Between one and two.

PN333

Would it be fair to say that it's one, Cecilia Maiolo?---No, there's another person whose name is Lam. He makes the blanks for the sleeve, he does the turning, which is the first operation. He's still there.

PN334

So there's two that are remaining and approximately four or five were made redundant, is that correct?---Probably two or three.

**** AMIT KUMAR MISRA XXN MR NEILSON
PN335

What particular skills does - let's focus on Cecilia Maiolo - possess over and above the two or three who were made redundant?---We are looking at, as I said, for any future work, if we need any future - when we do the manufacturing of steering gears, we will need people to carry out machining, normal process, assembly, disassembly, washing, polishing, that sort of work and the company was of the view that Cecilia Maiolo could carry out those activities.

PN336

And what particular skills did she possess over and above the other employees who were made redundant? Were they all the same?---Similar.

PN337

So the deciding factor again, Mr Misra, is the fact that Cecilia Maiolo has 32 years' service with Tristar?---As I said, that's one of the factors.

PN338

In circumstances where the skills are similar, it is the deciding factor?---Are you asking me a question?

PN339

Yes?---That's what I've been looking at, this employees, that's what you consider.

PN340

Sorry, I don't necessarily know if you answered my question. Is it the deciding factor when the skills are similar?---Looking at those specific employees, there are other employees in the company who have got far less number of years of service, but they're still being maintained.

PN341

No, I'm focusing on Ms Maiolo on the sleeve line. The deciding factor was the years of service?---For sleeve line for that person, two things, one is her years of service and the second one the company's ability to use her services for manufacturing.

PN342

But she had the same skills on your evidence as all of the other employees who were made redundant, so the sole issue is years of service, Mr Misra?---You could say that.

PN343

No, Mr Misra, I'm asking you is the sole issue in the circumstances of the sleeve line when all employees on your evidence have the same level of skills, the years of service?---At the end of the day, the decision is not made by one person, so I can't say yes or no. It was the company's decision at the end of the day, how the company has finally proceeded.

PN344

Mr Misra, your evidence is that you participated in the decision?---Yes.

**** AMIT KUMAR MISRA XXN MR NEILSON
PN345

Your evidence is that you participated in the assessment of skills?---Yes.

PN346

So you participated in the decision to make redundant the other employees, but keep Mr Maiolo?---We participated in the discussions, we proposed the names of the employees that should be made redundant and the final decision was taken by the board.

PN347

THE SENIOR DEPUTY PRESIDENT: I'm sorry, taken by whom?---By the board, the Tristar management, senior management.

PN348

MR NEILSON: And did the team make a recommendation to the board or did the board just pick a name out of the hat?---The team makes recommendation of the possible names that can be made redundancy with explanations and the board makes the decision.

PN349

I put it to you, Mr Misra, that the reason that Mr Maiolo was retained was because of her years of service and that was the sole and dominant reason for her retention?---You're telling me?

PN350

I'm putting it to you. You can answer yes or no?---As I said, the decision at the end of the day is made by the board.

PN351

There are a number of other examples, Mr Misra, that we could go through and I think you'd be aware of the valve line?---Yes.

PN352

How many employees were engaged on the valve line?---Six or eight.

PN353

Are you aware of how many remain at Tristar?---One.

PN354

In fact, there was two, but one took a voluntary redundancy, Ms Kuzevska, Luba Kuzevska?---That is correct. One is left.

PN355

So there's now one and that one employee who remains at Tristar is named Brsakovska, Jordanka?---Sorry, two employees remaining, not one. One is Vince Balovski and the other one is Jordanka.

PN356

What particular skills did Mr Balovski and Jordanka retain over and above the other employees who were made redundant?---Mr Balovski has got very special anchor skills which no-one in the company has that sort of skill.

**** AMIT KUMAR MISRA XXN MR NEILSON
PN357

And Jordanka?---And Jordanka was kept with the view that she can be utilised effectively for the manufacturing work and any grinding and polishing. Jordanka does the final grinding. I used to do the finish grinding of the input shaft and for the manufacturing, that's the area that may be - the parts are dismantled, that's the final outside ......

PN358

Now, Mr Misra, you kept on Luba as well. She was one employee who you retained at the time of making the redundancies and why did you keep Luba employed?---To carry out any process work related to the re-manufacturing.

PN359

So you made a decision that you required her skills for re-manufacturing. Now, Luba is no longer with the company, is she, Mr Misra?---No, she is not.

PN360

And why is that?---She applied for voluntary redundancy and the application was accepted by the management.

PN361

But the company had made a decision that it required her services, had it not?
---At one point of time, yes.

PN362

What changed between the company making a decision that it requires her services and then accepting her for voluntary redundancy?---As time goes on, the requirement for the number of employees required for re-manufacturing is reviewed and also because we have not done any of the re-manufacturing work in the last two or three months, I'm told that there is an impact on the way the re-manufacturing happens, so that's resulting in the review of the number of employees that are required to carry out re-manufacturing work.

PN363

What is the distinction in terms of monetary payments between a forced redundancy and a voluntary redundancy?---Forced redundancy is uncapped.

PN364

Four weeks per year of service?---Sorry.

PN365

Four weeks per year of service?---Four weeks per year of service for whatever number of years they work. Voluntary redundancy is capped at 52 weeks if the person has worked 13 years or more.

PN366

So Luba was paid 52 weeks voluntary redundancy?---That is correct.

PN367

And that was a discount on what she would have otherwise been entitled to as a forced redundancy?---In case of forced redundancy, she would have got more than 52 weeks.

**** AMIT KUMAR MISRA XXN MR NEILSON
PN368

Yes, the real reason that the company kept Luba employed again is not because it requires her skills, it's because she was entitled to a significant amount of money under the redundancy agreement. Isn't that the case, Mr Misra?---Again, as I said the employees who are the main bank, it's the decision of the company at the end of the day, not one person, so it's not one person who can answer that question. It's the company's decision.

PN369

Now, Mr Misra, the valve line, what's the current status of the valve line? Is it operating?---No.

PN370

Is the machinery present at Marrickville, at the Tristar site?---No.

PN371

Where has it been taken?---It has been taken to Caringbah.

PN372

Is it operational at Caringbah?---No.

PN373

So it's being stored at Caringbah?---That is correct.

PN374

There's no current plans to use that machinery at the moment?---Not right at this point of time, but the company is of the view that they can - they may be able to succeed in setting up a joint venture with either China or India where this machine would be required to produce some parts and that is why the skill of the person or persons are required to be maintained.

PN375

Now, the joint venture with China or India, that's something that's been on the company's agenda for would it be fair to say three years?---Two to three years.

PN376

And has any work eventuated out of this joint venture in those two to three years?
---We manufactured some prototype gears supplied to the Chinese parties.

PN377

So it was just a sample to show them what you produce?---Not really. They were made to the drawings sent by China for certain vehicles, but we have not gone into the full agreement and the production stays here.

PN378

Is there a date on when you will go into the full production?---No.

PN379

So it's unknown as to whether there will be any work at all eventuating from this proposed joint venture?---It is not known at this stage when and how much, what work will eventuate.

**** AMIT KUMAR MISRA XXN MR NEILSON
PN380

Do you think that the work will eventuate?---It doesn't matter what I think.

PN381

Mr Misra, I will just take you back slightly. You gave some evidence in relation to the sleeve line and Cecilia Maiolo. Is the sleeve line currently at the Marrickville premises, the machinery?---No.

PN382

Can you tell me where it's currently located, the machinery?---It's been stored at Caringbah.

PN383

Is it operational at Caringbah?---No.

PN384

Is the sleeve line similar to the valve line insofar as you're trying to get work, but there's no current work?---Yes.

PN385

Mr Misra, what is the current status of employees - sorry, how many employees are engaged in the tool room at Tristar?---Three.

PN386

What do the employees in the tool room, or what did they formerly do?---They make these tools and bits and pieces to keep the different lines turning.

PN387

Is there machinery to assist them in that task?---Yes.

PN388

Is that machinery operational at the moment?---Some of the machinery is.

PN389

Is it planned that that machinery will remain at Marrickville?---No.

PN390

So where will that machinery be taken?---They will be stored at Caringbah.

PN391

So the three employees engaged in the tool room, they were manufacturing tools, were they?---Not exactly precision tools, but to fix certain assembly problems, maintenance problems, various things. They were general purpose tools.

PN392

In your re-manufacturing operations, you require those employees?---To some extent, yes.

PN393

To manufacture tools for - - -?---General ongoing maintenance things. For example, we need to turn down certain diameters, we might call upon an employee to do that sort of work. There are machines available in the area that are going to be located in the Marrickville site which can be operated by these tool room employees.

**** AMIT KUMAR MISRA XXN MR NEILSON
PN394

To undertake similar tasks as to what they're undertaking?---There are three employees now. One has applied for voluntary redundancy, so we'll be left with two.

PN395

So you will be accepting that employee for voluntary redundancy?---We have already accepted.

PN396

Do you know the name of that particular employee?---Michael Dare.

PN397

So two employees, is it Mr Hoos and Mr Brabant?---That's correct.

PN398

Mr Hoos has approximately 20 years' service with Tristar?---I'm not sure, but in that vicinity, yes.

PN399

And Mr Brabant has 35 years' service with Tristar?---Yes.

PN400

How many employees were engaged at the tool room in say January 2006?
---I'm not 100 per cent sure, but it would be about four or five.

PN401

So the company made redundant two employees from the tool room in recent times?---I can think of Michael Dare only. Have you got another person's name? I can't tell you.

PN402

I'm just taking your evidence that if there's five employees in the tool room on your evidence approximately - - -?---Five or six, yes.

PN403

Five or six and then there's three remaining, that it would be fair to say that there's effectively three that have been made redundant in recent times?---Yes.

PN404

What particular skills does Mr Hoos, Mr Dare and Mr Brabant possess that those particular employees who have been made redundant not possess?---Well, Mr Dare is the leading hand of that, so he has got the skills, he had the skills to basically run most of the machines. Mr Brabant is a specialist turner and there is no-one in the tool room who has got better skills than Mr Brabant with respect to turning. Mr Hoos is a specialist grinder of tools and again there's no-one in the factory who has got better skills than Mr Hoos for doing those sort of things, including sharpening the tools, sharpening the drills.

PN405

Now, Mr Misra, you just said that Mr Dare - what particular skills did he have again?---He was a general purpose - - -

**** AMIT KUMAR MISRA XXN MR NEILSON
PN406

He could set the machines?---He could do a lot of things, yes. There's not a lot of setting in the tool room because it's not meant for production.

PN407

But you've now accepted his voluntary redundancy?---Yes.

PN408

You accepted his voluntary redundancy because there's no work for him or anyone in the tool room really to perform, is there, Mr Misra?---As I said before, the business is reviewed continuously to see what is the minimum number of people required to be maintained for any future work in re-manufacturing and any possible work for China or India.

PN409

Why would you accept him for voluntary redundancy and not make him or not offer him a forced redundancy if you had made a decision after your review that he was no longer required?---For Michael Dare, it did not make any difference because he was under 13 years of service. He was probably nine years. We wanted to keep as many people as possible employed with Tristar. So when the company reviewed its business and thought that we can do away with one more person, we did that. It was not that we had a large number of ..... and he was maintained because of that. He was maintained because he had a general level of skill which the company thought was useful.

PN410

Now, we'll move on from the tool room, and I want to take you now to the trim room. Are you aware of the trim room?---Yes.

PN411

Can you outline what type of material or work is produced in the trim room?
---The pinion, valve and sleeve assembly - assemblies are balanced on certain machines in the trim room.

PN412

How many employees were in the trim room in about 2006, January 2006?
---Approximately five, six.

PN413

Five or six? And are you aware of how many remain at Tristar to this day?---One.

PN414

One? Now, was there machinery used in the trim room?---Balancing machines.

PN415

Yes, and where are the balancing machines currently located?---Still in Tristar.

PN416

Still in Tristar, yes. Are there any plans to move those balancing machines?
---Yes.

**** AMIT KUMAR MISRA XXN MR NEILSON
PN417

Where will those balancing machines be moved to?---To Carringbah for the time being.

PN418

Will they be utilised at Carringbah for production?---No.

PN419

So they will be disconnected and stored at Carringbah?---Yes.

PN420

You said that there was one employee remaining who was formerly engaged in the trim room?---Yes.

PN421

Would that employee be Katerini Georganda?---Yes.

PN422

What particular skills does Ms Georganda possess, that the five or six employees who were made redundant did not?---Katerini - the reason why Katerini is there is because she can run the trim - the balancing machine when required and also more because she - the company believed that she can be utilised by remanufacturing work.

PN423

Your Honour, could you just excuse me for two minutes?

PN424

Sorry, could you just repeat your answer? Ms Georganda possessed what particular - - - ?---Katerini? Katerini can run the previous assembly machines, previous balancing machines as and when required, but also the company is of the view that she can be used for remanufacturing activities. She is basically a process worker and for remanufacturing, we need some process workers to remain and that was the reason why Katerini's job is still maintained.

PN425

The other employees couldn't operate that machine that you were talking about?
---They could operate.

PN426

They could operate? So it's not a case that Katerini is the only one who could operate that machine?---No, it is not. Correct.

PN427

So the particular skills that you say that she possesses that the others didn't is that you think she would be better suited to remanufacturing operations?---Process work. She - she did not work in the previous assembly for a long time. She's
- her background is general process work, inspection, that sort of work, and you need some people to do that, the process work for the remanufacturing of - yes, and the company was of the view that she could be useful for doing that sort of work.

**** AMIT KUMAR MISRA XXN MR NEILSON
PN428

That's right, because the company has made a determination that it doesn't think the machinery in the trim room will be operational again?---In the near - in the immediate future, no, but in - later on, if we have an agreement with China to produce pinion, valve and sleeve assemblies, which is what the company is expecting to come up with, then Katerini would be required to perform those work.

PN429

So she'll be directed back to the trim - - - ?---When that opportunity arises.

PN430

Yes. Now, Katerini was not the most experienced in the trim room, of those five or six who were made redundant, was she?---That is correct.

PN431

In fact, Katerini was engaged previously in an area known as the forge?---That's correct.

PN432

When Katerini first came across to the trim room, she had substantial problems, did she not?---What sort of problems?

PN433

She had a workers compensation injury; are you aware of that?---She was - when she was moved into the trim room, because she came from forging background, forging inspection background, she was not actually operating the machines, she was a bit stressed because she never worked on the machines, on this sort of automated machines which had computer screens and things like that. That caused some stress and she was - she made a stress claim, or a workers comp claim for stress, not that she was injured to the extent of any cuts or bruises or muscle strains or that. She had a mental issue which was just stress.

PN434

Yes?---And she made it - a workers comp claim.

PN435

Because she didn't feel that she was sufficiently skilled to operate in the trim room?---That is correct.

PN436

Yes, and in fact, I think Tristar supported her through that process, didn't they?
---That is correct.

PN437

They did the right thing by her, by trying to assist her in adapting her skills, is that correct?---Yes.

PN438

So if Tristar believe that the trim room is possibly going to be operational again, why would you keep your least experienced employee in the trim room, and an employee who had had significant difficulties in operating in the trim room?
---That difficulty was - she experienced many, many months ago. She was fully confident and running like any other operator in the later period. Purely simply, she has been working as good as any other employee.

**** AMIT KUMAR MISRA XXN MR NEILSON
PN439

So you didn't, in conducting the assessment as part of the team, take into account her previous concerns in operating in the area?---That - that problem that you're referring to occurred many months ago. She has got well over that problem. She is now able to learn the trim machine without any difficulty.

PN440

Are you sure she got over those problems?---Yes.

PN441

How are you sure?---Because her output has been as good as any other employee.

PN442

But have you spoken to her? Did you talk to her in relation to the assessment that you were doing?---I have spoken to her many times about general manufacturing related issues. She has never come up with any problems. Not just to her, to most other employees I speak time to time, and I - I'm not aware of any concerns being raised by any employee related to the work, or the nature of work that they were performing.

PN443

So of the five to six employees that you made redundant, and when comparing with Katerini, the main distinction is again, is it not, their respective length of service?---She had lot more number of years of service, yes.

PN444

Yes. In fact, of the five to six that you made redundant, they all had less than 20 years' service?---I'm not 100 per cent sure. There were some long term employees there as well, but it's under 20 or over 20, I'm not 100 per cent sure.

PN445

In fact, Katerini has 27 years' service?---Yes.

PN446

So if Tristar was going to offer or make people redundant, it would be cheaper for them to offer redundancies to those with less service than Katerini?---Yes.

PN447

Yes, thank you. Now, Mr Misra, in your witness statement, you make a lot of the fact that Tristar employees are engaged under the terms of a classification structure?---Yes.

PN448

You highlight, I think at - do you have a copy of your witness statement there?
---Yes.

PN449

You highlight at annexure AM1, do you see that?---Yes.

PN450

Annexure AM1 sets out what you say is the classification that operates at Tristar, is that correct?---Yes.

**** AMIT KUMAR MISRA XXN MR NEILSON
PN451

It is, you say, predicated on the classification structure in the Metal, Engineering and Associated Industries Award, is that correct?---There's some - I believe this is based - worked out based on that, because this has been there even before I started, this classification structure.

PN452

So you don't know for sure whether it's based on the Metals, Engineering and Associated Industries Award?---That's what I have been - I have been told.

PN453

You're just basing it on what you understand to be the case?---No. I have asked the employees who have been there, the HR employees who have been there for many years, and that's what I have been told, that this is line - this has been based on the metals - the award, and there are some additional alphabets there, as you see, or numbers, which are put in by T&W to identify the employees and give them a progression within the classification.

PN454

All right. Let's focus on exhibit AM1. Now, are you broadly aware of how classification structures work?---Broadly. Very broadly.

PN455

So it's fair to say that if someone is doing work on the sleeve line, for instance, next-door to someone who is doing the exact same work, they would be classified in the exact same classification?---My understanding is based on the skills and those sort of things. And not - - -

PN456

So two employees are doing the similar type of work and they have similar type of skills, then they would be classified - - - ?---They should be classified.

PN457

Yes, and that's how the Metals Award operates, that if you're an employee doing the same type of work as an employee next to you, or even in a different part of the factory, then you're entitled to be paid the same amount as them? Is that correct? Is that your understanding of it?---My understanding, yes.

PN458

You say that that understanding has been applied in coming to the classification structure that you set out in AM1?---That - I believe that was the understanding to start with, when these people were classified, and then within the classification, people have moved up based on their performance, and in some cases, they have
- you know, within the same classification, there can be different - different pays for different people.

PN459

Certainly. Mr Misra, are you aware that under - I think you've referenced at the annexure C12, for instance, there is reference to the Metals Award being classification, then level, the number being 12. C10 in the Metals Award, are you aware of the fact that that is generally regarded as the base tradespersons classification level?---Yes.

**** AMIT KUMAR MISRA XXN MR NEILSON
PN460

So in order to be classified as C10 or above, you have to have at least possession of some sort of trade certificate?---Yes.

PN461

Is that correct?---Yes.

PN462

Yes, okay. Now, would you regard a machinist first class as being someone in possession of a trade certificate?---Machinist first class, whether he needs to have a trade certificate or not? Is that what your question is?

PN463

Yes?---I'm not sure, to be honest.

PN464

You're not sure?---I mean, if this sort of situation occurs, I will seek advice.

PN465

Certainly. Certainly. Mr Misra, a machinist second class at Tristar, would it be fair to say that if you had one machinist second class, that they would be doing exactly or similar type of work as another machinist second class? Is that correct?---Similar.

PN466

So therefore if you apply the logic of the Metals Award in terms of its classification structure which you understand and how it applies, they should be classified in similar levels? Is that correct?---Yes.

PN467

Now, take a look at Mr Gorgi Stojcevski, number 28 in that list. Do you see him?---Yes.

PN468

It says, Stojcevski, Gorgi, then it goes on, C12 L3, do you see that?---Yes.

PN469

Then it says, "Machinist second class"?---Yes.

PN470

Do you see that?---Yes.

PN471

Then take a look at number 33, Duc Hung Nguyen?---Yes.

PN472

Do you see that? And then it says C10?---Yes.

PN473

Do you see that?---Yes.

PN474

And then it says, "Machinist second class"?---Yes.

**** AMIT KUMAR MISRA XXN MR NEILSON
PN475

Can you explain to me why there is a distinction between those two particular employees, in terms of their classification level?---We had to look at the files for these two employees. I know for sure that Duc Hung Nguyen, number 33, had far more skills than Stojcevski who is a process worker. I know that for sure. But to know exactly why he was moved to C10 and what other additional qualification he had acquired, I have to look at the file.

PN476

But isn't it the case, Mr Misra, that on your evidence and your understanding, if you're a machinist second class, then you are classified at a particular rate and if another machinist second class also works at Tristar, they're classified in the same rate because they're doing the same work?---That is correct.

PN477

So that would appear to be, would it not, not the case, not applicable in the case of Mr Stojcesvki and Mr Hung, that I've referred you to?---Look, I - I have to see why is the description of his position still remain as machinist second class. There's a difference in one. C10 has been called as a machinist second class, C12 has been called as a machinist second class, so obviously there is something that needs to be changed or upgraded.

PN478

But Mr Misra, did you annexe AM1 to your statement?---Yes.

PN479

So you have attested to it being true and correct to the best of your knowledge?
---That is correct.

PN480

So presumably at the time of annexing a copy of AM1, you were aware of its contents?---Yes.

PN481

And you have attested to the fact that you understand how the classification structure at Tristar works?---Yes.

PN482

And you're now telling us that maybe you don't know, you need to go away and review your file?---The - no, what I said is why there is a description or the position description has not been changed in line with C10. I can see this person has moved to C10 and I know that this person had better skills than Gorgi Stojcevski, because Gorgi Stojcevski is a washer, a process worker, this person is a machine operator and he had significantly higher skills than Stojcevski. I have to go and see why the name - the position description has not been changed accordingly. I can see his position is higher and that's in line with my understanding about this person. Why his position description has not been changed from machinist second class, that's something that I have to see.

**** AMIT KUMAR MISRA XXN MR NEILSON
PN483

It's the case, isn't it, Mr Misra, that the reason that they're different is because Tristar apply their own particular classification structure, don't they? They don't reference the Metals Award at all?---That is not correct. They are intended to be in line with the award and then subsequently there was discussions with the unions to review the classification in Tristar as a group, and what got the - to fix up the - or bring them in line with the actual award. So that task did not happen and maybe there are some certain things that need to be addressed.

PN484

So you're saying that - - - ?---It is basically in line with the award. That is the basis - - -

PN485

Yes, so you're saying that it's possibly a mistake?---Possibly a mistake with respect to the position description.

PN486

With respect to the position description? Okay?---What we tried to establish here, that there is a classification structure in Tristar and people have got the skills and competencies within their classification structure.

PN487

Are there any other errors in this document that you want to correct?---I have to go through it more in detail, if you - I mean - - -

PN488

But you didn't go through it at the time of annexing it to your statement?---I produced a document the way it existed in the company to demonstrate that the employees have got a classification, within the - within Tristar. C12, C10, C11, they have got certain tasks as understood by - within Tristar as - you know, what the classification means and what those employees are supposed to do. That's what - that is the objective of this, to highlight that process workers who are required to do manufacturing work, they are C12, and that's within the competency of the people who are remaining behind. That was objective. Whether the accuracy of the description, position description, is there or not, is something that can be reviewed and done.

PN489

So keeping in mind your evidence about your understanding that in order to be classified at C10, you have to possess a trade certificate, do you recall that?---Yes.

PN490

Would a setter of machines or an operator possess a trade certificate?---Not necessarily.

**** AMIT KUMAR MISRA XXN MR NEILSON
PN491

Not necessarily. Can you go to exhibit AM2?---Yes.

PN492

Do you see the employee's name?---Yes.

PN493

Do you know that employee?---Yes, he used to work in Tristar.

PN494

And do you see under the heading, "Current title, setter operator"?---Yes.

PN495

You see grade, C10?---Yes.

PN496

How is he classified as having a trade certificate and being entitled to be paid at C10?---Are you saying that he did not have a trade certificate?

PN497

Well, I'm asking you?---He was a C&C setter. He was a C&C operator.

PN498

But you just told me that a setter or an operator wouldn't have a trade certificate?
---I don't know. He probably would. I don't know.

PN499

You just don't know, do you, Mr Misra?---How can I remember which employee has work certificates when there are 350 employees in the company?

PN500

Well, Mr Misra, you've given evidence that exhibit AM1 is a fair and accurate description of the classification structure at Tristar, haven't you?---The objective of why the document was in there, to demonstrate that there is a classification structure in Tristar. How accurate it is, that is a different question, but there is a structure and - - -

PN501

So you can't - - - ?--- - - - and - - -

PN502

- - - attest to the accuracy of exhibit AM1?---Well, let me finish that. And objective was to demonstrate that the people who are asked to perform the manufacturing tasks, they - they have got the skills and competencies as required and there is a classification structure exists that demonstrate that at least they are C12.

PN503

Can you attest to the accuracy of exhibit AM1?---I can attest to the accuracy of the AM1 as it exists in the company today. Whether that's fully correct or not, that's something that has to be worked out as a team, as a group.

**** AMIT KUMAR MISRA XXN MR NEILSON
PN504

When was the last time that Tristar went through an assessment of the classifications at its operations?---The accuracy of the classification structure?

PN505

Mm?---This has been on the agenda for a while, between the union and the company, and the parties have not been able to get - it cannot be done by one party, it has to be done by both parties as agreed and that activity has not taken place.

PN506

Has the company invited the union to do that?---Yes, they have.

PN507

When was the last time that was done?---I think that was - that was quite a number of years ago and as far as I remember, there was not enough willingness on part of certain unions to come forward and involve in that assessment.

PN508

So let's focus on this classification structure that you've got. You say that the work that you want the employees to perform in remanufacturing is equivalent to C12?---Yes.

PN509

Do you recall that?---Yes.

PN510

Yes. Now, is it the case that all of the employees on this list remain at Tristar?
---No.

PN511

Can we go through it to work out who remains and who has been made redundant? Has Mr Eugene Hrycyk present at Tristar?---Yes.

PN512

Is Mr John Gosano present at Tristar?---Yes.

PN513

Is it Mr Nhan?---Lam.

PN514

Lam Van Nhan?---Yes.

PN515

He is present, yes? Antonia Karabasis?---Yes.

PN516

Toula - - - ?---Yes.

PN517

Michael Rutherford?---Yes.

PN518

John Anderson?---He has been made redundant.

**** AMIT KUMAR MISRA XXN MR NEILSON
PN519

John Williams?---Has been made redundant.

PN520

Colin Williams?---Has been made redundant.

PN521

Charles Schofield?---Still employed in Tristar.

PN522

Ivan Bozich?---Has been made redundant.

PN523

Mitre Mitreviski?---Continues to be employed.

PN524

Hamad Dennaoui?---Redundant.

PN525

Cao, Jing Lin?---Redundant.

PN526

Jordanka Brsakovska?---Remains in Tristar, continues.

PN527

Luba Kuzevska?---Made redundant.

PN528

Nguyen, Van Ut?---Made redundant.

PN529

Veselin Balovski?---Continues.

PN530

Cecilia Maiolo?---Continues.

PN531

Tran, Long Van?---Made redundant.

PN532

Kokinovski, Simeon?---Continues.

PN533

Nguyen, Hue?---Made redundant.

PN534

Kotevski, Blagojce?---Continues.

PN535

Sajinovic, Milos?---Continues.

PN536

Georganda, Katerini?---Continues.

PN537

Vo, Ngoc Anh?---Made redundant.

PN538

Nicolas El-Hawi?---Continues.

**** AMIT KUMAR MISRA XXN MR NEILSON
PN539

Stojcevski, Gorgi?---Continues.

PN540

Petrovski, Nikola?---Continues.

PN541

Vukici, Jone Tui?---Continues.

PN542

Jasmani, Othman?---Continues.

PN543

Milosevski, Gorgi?---Has been made redundant.

PN544

Nguyen, Duc Hung?---Has been made redundant.

PN545

Nguyen, Hue Sun?---Continues.

PN546

So, Mr Misra, in assessing, as part of the team that you were part of, the remanufacturing work and the type of work that it was, you assessed the classification of that type of work; do you recall that?---Yes.

PN547

Presumably, you said, well employees in C12 will do the remanufacturing work because it's within their classification. Do you recall that?---Yes.

PN548

In fact, you gave evidence to that effect in your statement, do you recall giving that evidence?---Yes.

PN549

Yes. Now, let's go through, let's assume that C12, the remanufacturing work, is correct, so the classifications for it were correct, and that your AM1 is broadly correct, and let's go through whether or not this particular employee is in fact being transferred within classification, because as you said, the remanufacturing work is the only work that Tristar has at the moment, apart from the gears that are coming up?---No, I didn't say that. I said remanufacturing work is what Tristar is trying to do now and there's a possibility that in future there will be some work related to steering gear components.

PN550

Yes, and my question was, that it's the only work that they have now, and that's correct?---That is correct.

**** AMIT KUMAR MISRA XXN MR NEILSON
PN551

Yes. So Mr Eugene Hrycyk, he's classed as C10. Is it not the case that he is being deskilled by being transferred to a C12 position?---No, that is not correct. Because firstly, there is for Eugene this particular work cycle. There is some work that is similar to what he was doing, it was just the - and the assemblies for Toyota. That he will be doing next year. After that, he will be involved in remanufacturing activities and as and when - if, as the China - business with China evolves, he will be required to perform the tasks that were similar to what he was performing earlier.

PN552

So - - - ?---He will not be doing only remanufacturing. And that's what we expect. We expect him to do the other work as and when that becomes available.

PN553

Mr Hrycyk, again, was employed on the - he was employed in the ball joint line?
---Yes.

PN554

Now, the ball joint line has been removed, has it not, Mr Misra?---Has been stored for the time being, yes.

PN555

Has been stored. So how is it that you say Mr Hrycyk can perform his ordinary duties and not the remanufacturing work?---The - as I said earlier, the machines are being stored at Carringbah, they are Tristar's property still. They can be called upon as and when required, depending on how the business evolves. If there is work for China, a lot of those equipment need to be installed. If the work for China does not happen and that continues to, you know, go on for the next many months, the company will have to review its decision.

PN556

So at the moment is it fair to say that there is no work other than remanufacturing for Mr Hrycyk to perform?---There is work, as I said, for Toyota that's going to happen in January. So that work Mr Hrycyk will be involved in. And remanufacturing work is available now.

PN557

Remanufacturing work is available now?---Yes.

PN558

I see. And that work is at C12, again?---Yes.

PN559

Yes. Thank you. So, I put it to you, Mr Misra, that Mr Hrycyk is being deskilled by your decision to direct him to perform work at a C12 level?---As I said, he will be performing the remanufacturing work as well as really performing the other work which was - was employed to do as and when that becomes available, so I can't see where the deskilling - how the deskilling - - -

**** AMIT KUMAR MISRA XXN MR NEILSON
PN560

Mr Misra, I put it to you that Tristar has made a decision that it no longer requires the work previously performed by Mr Hrycyk to be performed by anyone?---No, it has not made the decision.

PN561

Now, if we go to Mr Gosano, he's at C12, so for the purposes of our exercise we'll accept him. We then go to Mr Lam Van Nhan. Again, he's a C10 employee?
---Yes.

PN562

It's the case, isn't it, Mr Misra, that he's been directed to perform work at a C12 level?---Plus any work that will arise as and when. He will be required to turn the parts, if this is a requirement.

PN563

Mr Misra, we're focusing on the work that is available at the moment, not what Tristar - - - ?---Right at this point of time - - -

PN564

- - - thinks that it may be able to get some time in the future, so let's focus on the work that's available at the time?---I think that there's no need to go through it name by name because that applies to all the employees on the shop floor.

PN565

So they're all being directed to perform work at a lower classification level than they're - - - ?---All the employees in the shop floor, for the immediate period, we expect them to be involved in the remanufacturing work.

PN566

No matter what their classification level?---Yes.

PN567

No matter what their skill-set?---Yes. As we have said, those skills will be - may be required down the line when we get some additional work, but even for remanufacturing, we may be required to produce some parts. We may have to call upon those skills.

PN568

Just bear with me, Mr Misra. It's the case, isn't it, as you said, Tristar require employees to work at the C12 level. Why is it, then, that Tristar made a determination to make redundant employees at the C12 level when, as you say, they require them to do work?---Well, first, we have quite a number of people who have higher classification. They have got certain skills. If we lose them, and even at C12, I think there is, for example, Balovski, Veselin, from one of Ford, serial number 18. If you lose that person, then we will not be able to run any parts on that guy in future. So just to retain that person's skills, the company is continuing to give him work. Similarly, if you look at number 24, he's a C10, there's no work of the level of C10 for him in the immediate future, but the company still wants to keep him employed because he has got certain skills which the company believes that we will require in future, or that could be required in future.

**** AMIT KUMAR MISRA XXN MR NEILSON
PN569

Okay, but it has work for C12s at the moment, doesn't it?---It does.

PN570

So why make redundant Mr Bozich, Ivan?---Mr Bozich, Ivan, applied for - he wanted to retire.

PN571

But you had work for him. Why did you make him redundant if you had work for him?---He - it was - he applied for redundancy and the company accepted his redundancy.

PN572

So if employees apply for redundancy, the company just accepts them, no matter even if they have work for the employees to perform?---No, that is not correct. There are a number of employees who have currently applied for redundancy
- sorry, currently applied for voluntary redundancy and the company has not accepted their application. Quite a number of them.

PN573

On your evidence, Mr Misra, you have work for Mr Bozich, Ivan, to perform and yet you accepted his application for redundancy?---As we have said, we expect the other employees who are a different classifications as well, to perform the remanufacturing work so that the remanufacturing work still gets done and we still retain the skills.

PN574

How many years' service did Mr Bozich have?---I can't remember, maybe - I don't know, if you have some information, you could tell me. Maybe 20 or more?

PN575

20 or more?---Yes.

PN576

So it was cheaper for Tristar to pay Mr Bozich a voluntary redundancy as opposed to a - well, as opposed to forcibly make him redundant - - - ?---Yes.

PN577

- - - some time in the future?---Yes.

PN578

And that's why Tristar effectively accepted his application, isn't it?---I think that was one of the reasons in deciding that, apart from his age and his condition.

PN579

Tristar are not interested in continuing to retain their business, are they, Mr Misra? What they're interested in doing is making sure that they pay as little as possible to their employees on redundancy?---That's not the direction that I have got. The direction that I have got is the company still wants to continue to remain in business, get involved in remanufacturing activities, and if possible, get into joint ventures with overseas parties.

**** AMIT KUMAR MISRA XXN MR NEILSON
PN580

Do you, as the operations manager, think it strange that you're getting directions from the board to make redundant employees that you yourself say are required at Tristar?---The requirement at Tristar is being reviewed continuously and based on the current situation, the number of employees are believed to be adequate.

PN581

Do you ever question the board at all, Mr Misra, about their directions to make redundant employees that you need, as you say from your evidence?---As I said, for the kind of remanufacturing business that I understand that we will be involved in, we have got adequate number of people.

PN582

Mr Misra, it's true, isn't it, the case that this is all a bit of a ruse? Tristar are creating a situation where they say they have some work for these employees to do, but in reality they don't have any work for them to do, do they?---That's the direction that I have got, that there is remanufacturing work, we need to build gears, we need to build a bank of steering gears, to get into remanufacturing work. Whether this is a ruse or what, I cannot comment because that's the direction the company is paying so many people to carry out this sort of tasks. Whether company is wrong in doing that, that's a different question.

PN583

Now, Mr Misra, of these employees, and it says names in italics are from afternoon shift, so can I just identify them for you? Colin Williams, he was on afternoon shift?---He was on afternoons. He was working from 11 o'clock to 8.20, but still being considered as afternoon shift.

PN584

Yes, and he's been made redundant?---Yes.

PN585

Then it appears to be Mitre Mitreviski?---Is still there.

PN586

He's still there. And then it's Luba Kuzevska?---She was in the afternoon shift, yes.

PN587

Is she still employed?---No.

PN588

No. Nguyen, Van Ut?---Not any more. He was on the afternoon shift.

PN589

Yes?---He was - applied for voluntary.

PN590

And Mr Balovski, Veselin, he remains in employment?---He still continues to be employed, yes.

**** AMIT KUMAR MISRA XXN MR NEILSON
PN591

They're the only employees that were on afternoon shift that had been directed to dayshift?---There were five or six employees who were on the afternoon shift when this dispute started. Now we are left with only two employees on the afternoon shift.

PN592

Yes, and so those two employees would be Mr Mitreviski and Mr Nguyen?
---Mr Balovski, not - - -

PN593

Balovski, sorry. Yes. Let's focus on Mr Mitreviski. In what area was he employed?---Pinion line.

PN594

The pinion line? And the pinion line is being dismantled or disconnected at the moment?---Yes.

PN595

It's being relocated to Carringbah?---Yes.

PN596

There's no work for any employee to perform on the pinion line at this stage?
---That is correct.

PN597

And there's no contract secured by Tristar for employees to perform work on the pinion line at this moment?---That is correct.

PN598

Yes. Now, Tristar made a determination that it was going to close the afternoon shift?---That is correct.

PN599

It directed Mr Mitreviski to move to the dayshift?---That is correct.

PN600

And it directed Mr Mitreviski to move to the dayshift pinion line?---It asked Mr Mitreviski to move to the dayshift and carry out a number of tasks, including what he was originally doing on the afternoon shift, same tasks at a different time, as well as get involved in remanufacturing.

PN601

Now, Mr Mitreviski's position on afternoon shift is no longer required by Tristar, that's correct, isn't it?---Afternoon shift is being closed, so nobody is required to work in the afternoon shift for the business that we currently have. It is not possible.

PN602

So it's the case, Mr Misra, isn't it, that Mr Mitreviski's position is redundant, because it's no longer required by Tristar?---What Tristar is saying, that these employees are required to perform tasks at a different time. Currently they will be involved in remanufacturing work and some time in future we expect these employees to perform the same tasks that they did in the afternoon shift, when we have some business with China or India.

**** AMIT KUMAR MISRA XXN MR NEILSON
PN603

Mr Mitreviski's position is no longer required on afternoon shift. That is a decision that has been made by Tristar. That's correct, isn't it, Mr Misra?---Any of the afternoon shift person, the company cannot continue to maintain because of the current business situation.

PN604

So I put it to you that Mr Mitreviski's position is in fact redundant, it is no longer required by Tristar?---That decision is made by the company as to whose position - which position is redundant or otherwise.

PN605

Now - - - ?---The company believes that Mr Mitreviski still should remain employed with Tristar, performing certain tasks.

PN606

Now, Mr Mitreviski is a C12, on your exhibit AM1, that's correct?---Yes.

PN607

So he, on your evidence, has work to do in the remanufacturing area?---That is correct.

PN608

And he has work to do for - or working alongside similar employees who were ordinarily engaged on the dayshift, is that correct?---Yes.

PN609

How many employees who were previously engaged on the - was it the pinion line that he was on?---Yes.

PN610

Are retained at Tristar? I think it was two, is that correct? Mr Dennaoui and Mr Mitreviski are the only employees?---No, not Mr Dennaoui. Mr Mitreviski is the only one, I think, on the pinion line. Mr Dennaoui has been made redundant.

PN611

So you had C12 employees on the dayshift and you decided to make them redundant because you no longer required them to perform work for Tristar, that's correct, but now you're trying to get Mr Mitreviski to come in and replace those employees, aren't you?---Not replace, perform the same sort of tasks and perform what he was performing earlier, not to get involved in remanufacturing.

PN612

But Mr Misra, Tristar made a decision that it no longer required certain dayshift employees at the C12 classification level to perform work for it and accordingly they were made redundant?---Yes.

PN613

Now, one of those employees recently - was it Mr - sorry, can you tell me who that particular employee was?---What are you referring to?

**** AMIT KUMAR MISRA XXN MR NEILSON
PN614

The dayshift employee that was recently made redundant?---There was a setter who was made redundant recently.

PN615

Yes, he recently accepted - - - ?---Ut Van Nguyen.

PN616

Yes, that's it. Thank you. So Tristar made a decision that C12 employees on dayshift were going to be made redundant?---That person that you're referring to is a C10.

PN617

And now Tristar are going to direct a C12 employee on the afternoon shift, a position that they no longer require, to move into a dayshift role and perform the same work as those employees who were previously made redundant. That's a fair characterisation of it, Mr Misra, isn't it?---Not exactly because this person was running one or two machines, is not going to move into dayshift and run those two machines now. He will be performing the work that he was previously performing in the afternoon shift, when that job arises, but for the current situation, he is going to be - get involved in remanufacturing and work for remanufacturing, yes.

PN618

That's right, and all of those C12 employees will all be doing remanufacturing?
---That is correct.

PN619

So why wouldn't you keep a dayshift employee who was performing or who is going to perform C12 work in remanufacturing over and above an afternoon shift employee who, on your evidence, you no longer require?---They're just other factors that are considered, including the length of service.

PN620

It's the length of service question again, isn't it, Mr Misra?---Yes. That's one of the - - -

PN621

That's the sole determination for Tristar in making people redundant. It's how long they have been with the company?---As I told earlier, that there have been a number of employees that have been made redundant who had served in Tristar for 20 or 21 years. So that's - I will not say that's the sole criteria. That's one of the criteria, and an important criteria.

PN622

But when all things are even, as they seem to be in most of the decisions made by Tristar, the length of service determines the issue?---Certainly influences the decision.

**** AMIT KUMAR MISRA XXN MR NEILSON
PN623

Can you tell me why that's important?---The length of service? Why that is important?

PN624

Yes?---I can understand the commercial aspect of it, but at the end of the day, it's the board's decision.

PN625

So this is not about retaining skills, it's not about maintaining Tristar's business, it's not even about developing Tristar's business. It's just all about Tristar avoiding its liabilities under the agreement, isn't it, Mr Misra?---As you - as you yourself said, all other factors being similar, it is skills and other factors, so the skills are being still maintained as required by the business, and length of service becomes one of the influencing factors for decision-making.

PN626

Mr Misra, I have one or two questions in relation to the packing work?---Yes.

PN627

Are there any employees employed by Tristar who previously performed packing work, at the moment?---At the moment, there's an employee whose name is John Anderson. He still continues to work there. He had applies for voluntary redundancy and his application has been accepted - - -

PN628

So Tristar have made a determination that it no longer requires any employees in the packing area, is that correct?---For gears and components that were to be supplied to Toyota and Mitsubishi, most of the packing work is complete, and future work, any future packing, we do not have any - any more to pack, no.

PN629

Do you recall an employee by the name of Ms Janovich?---Anna Janovich, yes.

PN630

Yes, and she was engaged in the packing area, was she not?---Yes, she was.

PN631

And Tristar made a determination to make her redundant, did they not?---That is correct.

PN632

Presumably, Tristar in making that determination deemed that that particular work was no longer required by it?---She was made redundant in a situation where we had completed majority of the packing and we were waiting for a small number of parts to come from overseas. So those parts have now arrived, she shall - we went ahead and made her redundant because the small number of parts will still be packed by the person who is now working in Tristar, he will come to packing. We expected some help from the remaining employees in Tristar to assist when the new parts arrived down the track, but that did not happen. However, we have managed with contractors, we had to employ some contractors to carry out that work. That was a one-off job that has been done.

**** AMIT KUMAR MISRA XXN MR NEILSON
PN633

So the direction for or from Tristar for the remaining employees to perform packing work is now withdrawn, is that what you say?---I think after 15 December, there will be no more packing work required.

PN634

So Tristar won't make - - - ?---However - excuse me?

PN635

Yes?---However, when we made these 5000 parts in February, we may have to pack them, but how we will pack them, we have to negotiate with the customer, but that's for a different kind of packaging, to make things easy for us.

PN636

Will Tristar direct any of its remaining employees, apart from Mr Anderson, to perform packing?---Look, in future, when such situations arise, Tristar expects the employees to come forward and help in packing. It's not an ongoing job in generally, it's a one-off job here and there and we expect that level of flexibility from the workforce.

PN637

Now, focusing on Ms Janovich, your evidence in examination-in-chief from Mr Mead was that Tristar made a determination to - and I'm paraphrasing, you'll correct me if I'm wrong - make Ms Janovich redundant, even though it knew that it had work for her to perform some time in the short future?---A small amount of work.

PN638

A small amount of work?---Yes.

PN639

Primarily because they did not want her sitting around?---That is correct.

PN640

Do you recall that answer?---Yes.

PN641

What's the difference between Tristar making Ms Janovich redundant because they don't want her sitting around, and Tristar refusing to make redundant all of the employees who are on your list who, on your own evidence, there is no work for them to perform?---I think there is a distinct difference.

PN642

Can you explain that difference?---Yes. The work that was expected to be performed by Anna Janovich was a one-off job when the parts would arrive from overseas. Those parts would need to be packed and despatched. That was a one-off job. However, the employees who are currently being kept at Tristar, being employed at Tristar, they are being kept for work like remanufacturing of any China business which will be an ongoing work, which is not a one-off job, that we make 500 remanufactured gears and then that's finished. It's not like that. We expect that business to continue, so there's a difference between the two situations.

**** AMIT KUMAR MISRA XXN MR NEILSON
PN643

The real distinction, Mr Misra, apart from all the bluff that you've just given us really is that Tristar just don't want to pay the entitlements, do they? I mean, that's the real issue?---You say the bluff, is it?

PN644

Yes?---Look, it's up to you how you say it, but that's the direction of the company. The company wants to keep these people employed for remanufacturing of any future business. It's the company's decision what - you know, what they want to do for future. If you call that bluff, you know, that's your way of expressing it.

PN645

Now, I just have one or two more questions for you, Mr Misra. The time in which the employee perform their tasks, day, afternoon and nightshift, that is part of these employees' contracts with Tristar?---That's not my understanding.

PN646

Well, I put it to you that it is?---Sorry?

PN647

I put it to you that it is?---I - that's not my understanding. I have checked of the employment record, the employment records of these employees. There is nothing to suggest that they have been employed specifically to perform a task at a certain time. There has not been any such documents that I have come across that would indicate that.

PN648

And there's nothing to suggest that they had been engaged on a rotating shift either, is there, Mr Misra?---That is correct, yes.

PN649

Thank you. I have no further questions of this witness, your Honour.

PN650

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Wallace or Mr Currey, any questions you want to ask?

PN651

MR WALLACE: Nothing from us, thank you.

PN652

THE COMMISSIONER: Thank you.

PN653

MR MOIR: Just a few questions, your Honour.

<RE-EXAMINATION BY MR MOIR [12.48PM]

PN654

MR MOIR: Do you recall, Mr Misra, you were asked questions about the machinery being used for the remanufacturing work - - - ?---Yes.

**** AMIT KUMAR MISRA RXN MR MOIR
PN655

- - - at the Marrickville premises?---Yes.

PN656

You described how some of the machinery at the site has been removed for storage to another location, but some of the machinery has been kept on the premises?---That's correct.

PN657

For the remanufacturing work?---Yes.

PN658

How, if at all, does that machinery differ from the machinery that was previously used by the company for the manufacturing work?---The machinery that had been maintained or kept at Marrickville, now they are predominantly for remanufacturing work. They were not used for the - our normal steering gear production work. They were used sometimes to do certain aspects of production work, but they are not predominantly high volume production machines.

PN659

Do they differ at all?---They are different, yes.

PN660

How are they different?---They are meant to do certain functions, like lapping, conning, grinding. There's some differences, there are some commonalities as well. The dismantling is common, the assembly is to some extent common, not 100 per cent. So there are - the basic ingredients, the basic function of assembly, the concept of assembly and disassembly is similar.

PN661

What measures, if any, has the company taken to utilise new machinery at the site?---There have been a few new equipment, new machinery, that have been put in for remanufacturing. They are specifically for remanufacturing. They have been put in, into the area where Tristar is going to - to remain within at the Marrickville site.

PN662

When you say a few, what do you mean by that? As in a total machinery that is at the site?---A few benches. There are a few benches. There are - there is a conning station, there is a - there's a double-drilling station for removal of staking that have been put in for the - for doing remanufacturing work. Also there are some washers that have been developed. In fact, they are at the final stages of the development when we got the status for there has not been any further work, but there are a couple of washers that will be brought into remanufacturing work.

PN663

You recall you were asked questions about what steps had been taken by Tristar to gain further work?---Yes.

**** AMIT KUMAR MISRA RXN MR MOIR
PN664

You referred to a discussion from - or a directive from your superiors to proceed ahead with full steam and to build up the stock - - - ?---Yes.

PN665

- - - within the premises, and you said that building up the stock with the inventory was a minimum requirement?---Yes.

PN666

What did you mean by that?---What I have been told is to get into the manufacturing. It is important that we have a bank of steering gears, a number of steering gears of various part numbers so that the - when the - if and when we get a business, the customer would not like to wait for six months to get a replacement steering gear because the vehicle is down and they want a replacement gear straight away. So we need to start off with a bank of gears so that we can prove our credibility, that we can supply promptly, that we will help in assisting the business and maintaining it.

PN667

What does that mean for the labour requirements of the business?---That would mean that the labour need - the employees in Tristar need to get on with dismantling the work and the assembly and testing of these gears.

PN668

Has that work already commenced?---It had commenced back in July/August and then the status quo was imposed and I don't think there has been any further work after that.

PN669

What do you see that means for Tristar's ability to obtain the work?---I think it is impacting in some way.

PN670

In what way?---I'm sure with the publicity that's happening now with all these disputes, the potential customers I don't think will view it as favourable, for the relationship between the customer and the supplier.

PN671

I have nothing further, your Honour.

PN672

THE SENIOR DEPUTY PRESIDENT: Thank you. Well, Mr Misra ,I think that means you're excused as a witness. It may be possible in the future, depending on the outcome of the proceedings of the Full Bench that you might be recalled, but we'll cross that bridge when we come to it?---Yes. Thank you, your Honour.

<THE WITNESS WITHDREW [12.54PM]

PN673

THE SENIOR DEPUTY PRESIDENT: Gentlemen, earlier I rejected Mr Wallace's application to strike out certain paragraphs of Mr Misra's statement. In doing so, I said the paragraphs are relevant to settlement of the dispute as I characterised it. It should be clear that in reaching that conclusion, I did not accept Mr Wallace's characterisation of those paragraphs from the prior proceeding. I just wanted to make that clear in the context of saying that Mr Misra may be recalled. Now, I propose to adjourn, gentlemen. Was there something you wanted to say about that, Mr Neilson?

PN674

MR NEILSON: Your Honour, the union intends to call Mr Schutz to give evidence. Obviously we'll do that after the luncheon break, but can I get an indication from Mr Moir as to whether he intends to cross-examine Mr Schutz? I'm just trying to estimate time in terms of wrapping up this matter today.

PN675

MR MOIR: Yes, I can indicate that I do intend, your Honour. I anticipate for about 30 minutes.

PN676

THE SENIOR DEPUTY PRESIDENT: Yes. We'll resume at 1.45.

<LUNCHEON ADJOURNMENT [12.55PM]
<RESUMED [2.04PM]

PN677

THE SENIOR DEPUTY PRESIDENT: My apologies for being delayed, gentlemen. I hope you didn't think it was an adjournment. Yes, where are we up to, gentlemen? Mr Neilson?

PN678

MR NEILSON: Your Honour, the statement - or obviously the evidence of Mr Misra is complete. The union had put on a statement in reply from Mr Schutz and that statement in reply is solely on the basis of the statement that Mr Misra had placed in the proceedings, and I'd seek to call Mr Schutz for that purpose.

PN679

THE SENIOR DEPUTY PRESIDENT: Yes.

PN680

MR NEILSON: I envisage that Mr Schutz may have to be reaffirmed, your Honour.

PN681

THE SENIOR DEPUTY PRESIDENT: Yes.

<MARTIN SCHUTZ, RECALLED AND RE-AFFIRMED [2.05PM]
<FURTHER EXAMINATION BY MR NEILSON

PN682

MR NEILSON: Mr Schutz, you have previously provided evidence in these proceedings?---That's correct.

PN683

Have you caused to be prepared a statement dated 21 November 2006?---I have.

PN684

Do you have a copy of that statement with you?---I do.

PN685

Is that statement true and correct to the best of your knowledge?---It is.

PN686

I seek leave to tender a copy of that statement, your Honour.

EXHIBIT #A3 - STATEMENT OF MARTIN SCHUTZ DATED 21/11/2006

PN687

MR MOIR: Your Honour, there's just an objection to one paragraph in the statement. It's paragraph 12.

PN688

THE SENIOR DEPUTY PRESIDENT: Yes.

PN689

MR MOIR: It sets out some out of court comments allegedly made by another person.

PN690

THE SENIOR DEPUTY PRESIDENT: Where the Cartwright is not me.

PN691

MR MOIR: No. And Mr Cartwright was the former organiser of the union for the site. He's not a witness in these proceedings and the statement which is attributed to him by Mr Schutz is clearly hearsay and it's not capable of being tested on the basis that Mr Cartwright is not being called to give evidence in these proceedings. Therefore it would be unfair to the respondent for that statement to be admitted when the respondent is incapable of testing it.

PN692

MR NEILSON: Your Honour, I broadly accept the criticisms that are made of the statement insofar as that it is hearsay in nature. I don't accept that there is inherent unfairness in the statement, or the paragraph being allowed to remain as is, and I do so on the following basis. This Commission is not bound by the rules of evidence. This Commission is entitled to inform itself in any manner that it deems appropriate and we say that the statements that Mr Schutz has attributed to Mr Cartwright that he's recited in paragraph 12 can be dealt with as a matter of weight. Your Honour will recall that there were a number of statements of Mr Misra in his cross-examination which were of a similar nature. The union specifically did not appeal - did not object to those statements being put before the Commission because of the fact that this matter and these proceedings before the Commission are entitled to be conducted not in accordance with the rules of evidence, and according to equity and good conscience and we'd say that on that basis, that paragraph 12 should be admitted subject to weight.

**** MARTIN SCHUTZ XN MR NEILSON
PN693

THE SENIOR DEPUTY PRESIDENT: You agree that it is of a hearsay nature?

PN694

MR NEILSON: I don't think there's any doubt of that, your Honour.

PN695

THE SENIOR DEPUTY PRESIDENT: Yes. How do you respond?

PN696

MR MOIR: Just briefly, your Honour. There is a key distinction between Mr Misra's evidence and what's contained in paragraph 12. Mr Misra is, firstly, a witness in the proceedings. He was a participant in the negotiations over the agreement and therefore his evidence about the intention of the parties at the time the agreement was made is clearly capable of being tested, and he has been tested on that during his cross-examination. Paragraph 12 of Mr Schutz's witness statement is in an entirely different category. That statement just cannot be tested and the submission my friend puts, that it's a matter for weight, well how can your Honour assess its weight when it's not capable of being tested? Mr Cartwright is not appearing to be tested on the assertion contained in paragraph 12. So your Honour is not in a position even to assess the weight of it, whereas your Honour can assess the weight to be attached to Mr Misra's statement because he's given evidence in person before you.

PN697

THE SENIOR DEPUTY PRESIDENT: Yes. Very well. I note Mr Neilson's concession that the response from Mr Cartwright referred to in that paragraph is of a hearsay nature. Nevertheless, in my view it's not necessary to strike that out entirely. As Mr Neilson says, that is something which - well, it can stand in the statement, but it is a matter for weight and it won't attract very much weight at all.

PN698

MR NEILSON: I don't have any further questions for this witness, your Honour.

PN699

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Moir?

PN700

MR MOIR: Thank you, your Honour.

<CROSS-EXAMINATION BY MR MOIR [2.11PM]

PN701

MR MOIR: Mr Schutz, in your experience as an industrial officer, you have become involved in redundancy situations?---Yes.

PN702

You're aware that employers will commonly adopt a selection process for redundancy?---On occasions, yes.

**** MARTIN SCHUTZ XXN MR MOIR
PN703

You have no doubt been involved in cases where selection criteria have been nominated?---Yes.

PN704

Those criteria have then been used to select persons for redundancy in the enterprise?---Yes.

PN705

In your experience, some of those selection criteria might include skills?---Yes.

PN706

Qualifications?---Yes.

PN707

And length of service?---Yes.

PN708

You have seen in your experience, have you not, assessments conducted by employers using those criteria?---Yes.

PN709

So for example, you would have seen matrices being used by employers?---Yes.

PN710

Under those matrices, a criteria would be set out and employees are then scored against those criteria?---Yes.

PN711

No doubt you would have seen length of service as a criteria that's commonly used by employers?---It's part of a set of criteria, yes.

PN712

Yes. Where length of service is used as a criteria, do you accept that as a general proposition the more - or the greater the length of service, the less likely the employee has been selected for redundancy?---In my experience in the last, say, 10 years, length of service would, at best, form a minor part of any consideration. Employees are generally selected for redundancy on the basis of the skills required by the business and the skills held by the employee and so the length of service is of - as I say, very, not just relatively, very minor consideration. I personally - I'm just working my way through my recollections, but I personally can't recall circumstances where the longer serving employees in an age bracket of mid-sixties are retained by business, or early sixties, are retained by business when there are employees of equivalent or better skills and a younger age group who are more suitable to be - for the future business needs of the company.

PN713

If I could just come back to my question about length of service as a selection criteria, have you observed in your experience that, as a criteria, it is a positive or a negative factor towards somebody being selected for redundancy?---I guess, you know, I'd probably say in this day and age it's almost a neutral factor.

**** MARTIN SCHUTZ XXN MR MOIR
PN714

You're aware, aren't you, that as a general proposition the greater the length of service, the more redundancy pay - - - ?---Yes.

PN715

- - - that might be owing?---Yes.

PN716

From a commercial point of view, it would therefore make sense, wouldn't it, to look at length of service as a factor which weighs against selecting somebody for redundancy? In other words, the higher the length of service, the greater the cost for the employer, as a general proposition?---As a general proposition, it's a mathematical calculation.

PN717

Yes, and employers, no doubt in your experience, take into account that calculation all the time, don't they?---I'm sure they do, but in the processes that we've been involved in, employers have generally gone to great length to establish that you don't have, that you no longer have, a last on/first off system as we used to have perhaps 20 years ago, and that skills and the skill needs of the business are important and I think in - in this agreement, there is similar terms that were I would believe in fact sought by the employer, that they have the right to use the skill needs, the future skill needs of the business as the criteria, or as one of the
- as the overriding - one of the most important criteria for selecting people for redundancy.

PN718

But you're aware, in your experience, that employers will take into account the potential cost of redundancy in selecting employees for redundancy?---I'm sure that that's been the case, yes.

PN719

And indeed, you would have seen direct examples of that in your experience as an official of the union?---The - in my experience in similar situations the nature of the discussions that I've been involved in have really focused around skills and matching the skills of the employees to the needs of the business and no employer has come to us and said we are not going to let this person go because it would cost us more to let person A go than it would cost us to let person B go, or we're not going to make person A redundant because that's more expensive than it is to make person B redundant. It's about the skills and the skill matrix required by the enterprise.

PN720

You know for certain, don't you, that employers do take into account the potential costs when selecting employees for redundancy?

**** MARTIN SCHUTZ XXN MR MOIR
PN721

MR NEILSON: Your Honour, Mr Schutz can't answer that question. He doesn't know what employers take into account for sure. Mr Moir is asking for Mr Schutz to give evidence as to what employers think. He's unable to do that.

PN722

MR MOIR: I'll rephrase the question, your Honour.

PN723

In your experience, Mr Schutz, you have observed, have you not, employers taking into account potential costs of redundancy as a key selection criteria?---As I've just said, in my experience, in the redundancies that I've been involved in negotiating, I cannot recall an employer coming to us and saying, "We've selected these people and the distinction is that these redundancies are going to cost us less than some other people." Employers come to us and they say, "We propose these people because the other people that remain have got the particular skills for the enterprise that we require to continue" and they're the most highly-skilled or the most flexible, the most broadly-skilled, those kinds of considerations. '

PN724

No doubt you have seen redundancy situations where length of service has been used as one of the criteria for selection? I mean, it's a yes or no answer, Mr Schutz. Have you or have you not seen examples of length of service being used as a selection criteria for redundancy? Yes or no?---In - in all honesty, perhaps as I say, 20 years ago, that was something that was done, but today, it really focuses around skills.

PN725

That doesn't answer my question?---So the answer I'd have to give would be in my experience in recent years, the answer would have to be no.

PN726

Are you seriously suggesting that you haven't seen recent examples where employers have not taken into account as one of the selection criteria an employee's length of service? Is that what you're seriously suggesting to the Commission?---I'm saying that employers have not made the distinction to us, to me, that one person is being selected because they have a lesser period of
service - - -

PN727

Mr Schutz, I'm not putting that proposition to you. I'm not saying to you other examples where length of service has been the critical factor. I'm asking you whether you have, in your recent experience, seen examples of where length of service has been one of the criteria used by the employer?---In a matrix, for example?

**** MARTIN SCHUTZ XXN MR MOIR
PN728

Well, for example, in a matrix?---Again, I'm - personally in my case I can only say I haven't had an employer - I can put it this way, right? I've seen matrices where age, skills and length of service is identified. But I can't take you to how that employer has used those criteria in selecting people for redundancy.

PN729

So I take it, then, you have seen recent examples of where length of service has been used as one of the criteria?---As I say, I can't take you to one where employer has put that to us as the criteria.

PN730

I'm not putting that to you, Mr Schutz. It's a simple proposition. You have seen recent examples of employers using length of service as one of the criteria?---On a matrix, yes.

PN731

Where length of service has been used as one of the criteria, that clearly takes into account the potential cost for the employer, does it not?

PN732

MR NEILSON: Your Honour, he can't give that evidence. He simply can't give that evidence. That's evidence from the employer. It's not evidence Mr Schutz can give. He's not making the decision.

PN733

MR MOIR: It's simply a matter of logic - - -

PN734

MR NEILSON: Your Honour, he's asking - - -

PN735

MR MOIR: Well, I'll rephrase the question, given there's objection.

PN736

You accept that the greater the length of service the higher the redundancy cost, as a general proposition?---It's a mathematical calculation, as I said before.

PN737

Yes. That's what I thought you said before. So where the employer is taking into account length of service, they're clearly factoring in, are they not, the cost, potential cost, of the redundancy? Does that accord with your experience?---As I say, I wouldn't - I wouldn't say yes to that. I couldn't say yes to that. What I can say to that is in - the ones - in the examples that I've been involved in, what employers are looking for is a certain skill-set and experience obviously plays a role in terms of a skill-set. So somebody who's got one or two years' experience is likely to have less skills in relation to that job than somebody who's got 20 or 15 years' experience.

**** MARTIN SCHUTZ XXN MR MOIR
PN738

Mr Schutz, I'm not asking you about skills. I'm asking you about length of service and the potential cost of redundancy. Now, you say that clearly in the case of Tristar, length of service is related to the cost of redundancy, don't you?---As I say, it is.

PN739

Yes. It's obvious, isn't it?---Yes.

PN740

Yes. So as a general proposition, the greater the length of service of a Tristar employee the higher the potential redundancy cost for Tristar?---Yes.

PN741

And does that accord with your general experience as an industrial officer?---In my general experience - - -

PN742

In the industry?---It's a mathematical calculation. That's all you can say. It's a mathematical calculation.

PN743

And how long have you been with the union, Mr Schutz?---Three and a half years.

PN744

Have you worked for industrial organisations before that?---Not direct, no. Not in that sense.

PN745

So in the three and a half years you've been with the union, does that general proposition accord with your experience?---The general proposition that the longer the length of service, the higher the cost of redundancy?

PN746

Yes?---It would seem to me to be logical, yes.

PN747

Yes, all right. That general proposition, you have observed, is one that's taken into account by employers in assessing whether employees are chosen for redundancy?---It may be, yes.

PN748

Yes, all right. What I want to put to you, then, is that you're aware that other selection criteria may be used by employers?---Yes.

PN749

Such as skills, qualifications and so forth? The ones we've mentioned earlier on. Do you accept the proposition that if all other criteria are equal, then length of service will become the decisive factor?---Well, I suppose if all other criteria were to be equal, then that could be the case.

**** MARTIN SCHUTZ XXN MR MOIR
PN750

Yes. So if skills, qualifications, expertise, they are all equal with respect to the relevant employees, length of service would become the determinative factor?
---That could be the case.

PN751

Yes. I want to suggest to you that with respect to at least some of the examples you have raised regarding Tristar, that is the exact situation?---I wouldn't agree with that.

PN752

And do you accept that if all other things are equal, it's legitimate for the employer to decide the matter on the basis of length of service? Do you accept that proposition?---Well, I'd have to say it's not for me to decide.

PN753

I'm just asking for your view as an official of the union. Do you accept that if all other criteria are equal, that length of service is a legitimate consideration for the employer to have regard to?---It's a legitimate consideration for the employer to have regard to.

PN754

And that's because the potential cost of redundancy is quite a legitimate concern for the employer to take into account?---It - it is a legitimate concern for the employer to take into account, yes.

PN755

Indeed, that's why you have seen many times employers utilising that very criteria?---Well, as I said before, I haven't.

PN756

But you're aware that this is what employers do, through your experience?

PN757

MR NEILSON: He answered that, your Honour. He said it hasn't. The question was, "You're aware of" and he said, "I haven't" and then the question just got - - -

PN758

MR MOIR: Now, if you could turn to paragraph 9 of your witness statement, you refer there to employees who are already working on dayshift. You make this statement in paragraph 9 in the context of employees being directed - employees on afternoon shift - to perform work during dayshift?---Yes.

PN759

Yes. You are basically familiar with the terms of the Metal Industry Award?
---Basically.

PN760

Yes. And you're aware that that award applies to Tristar site?---Yes.

**** MARTIN SCHUTZ XXN MR MOIR
PN761

The enterprise agreement is to be read in conjunction with that award?---Yes.

PN762

And you're aware that under the award, the employer has the discretion to fix the ordinary hours of work?---Well, there's a reasonably complicated process set out in the award as to how that takes place, and that can involve the requirement to seek agreements from employees under certain circumstances. I think we've - it's a complicated clause that we would need to go through and examine in detail. I don't recall off the top of my head exactly what that clause is. If you'd like to point me to it, we could perhaps examine it.

PN763

Well, I just want to put a proposition to you. Namely, do you accept that the award provides the employer to vary the ordinary hours of work, whether those hours are performed during dayshift or afternoon shift, without the consent of the employees or the union?---My understanding is that once those hours have been fixed and agreed, then they can be varied only by agreement.

PN764

I see. When you say that those hours might be fixed, you haven't seen any letters of appointment or documents of that nature fixing the afternoon shift hours for the relevant employees?---Letters of appointments? No, I haven't seen any letters of appointment.

PN765

Or contracts of employment?---No.

PN766

No doubt you have made inquiries of your members as to whether those documents might exist, but you haven't been provided with any such documentation by the members?---I haven't actually made inquiries about individual letters of appointment.

PN767

You haven't asked your members - - - ?---No.

PN768

- - - whether they have any such documentation?---No, I haven't. No.

PN769

Are you aware if anyone else at the union has asked?---I'm not certain.

PN770

If you could go to paragraph 13? You say there that the employees who have been directed to transfer from afternoon to dayshift, they're being asked to do the work of redundant employees?---Yes.

PN771

You don't accept that the work they're being asked to do is their existing work, just at a different time of the day?---No.

**** MARTIN SCHUTZ XXN MR MOIR
PN772

If you go to paragraph 14, you refer there to the remanufacturing work, do you see that?---Yes.

PN773

Do you accept that that remanufacturing work involves work of a similar nature to the manufacturing work that was previously performed at the Tristar site?---Some of it is of a similar nature. Other parts of it are different.

PN774

I see. You accept that the assembly and disassembly work that's required to be done for the remanufacturing work is similar to the assembly and disassembly work previously performed?---Well, certainly the disassembly work is not. The disassembly work I would say is very different to what people were doing before. It's far more physical in nature and I think it requires possibly quite a different capacity. As far as the assembly work is concerned, there are certainly circumstances under which the assembly work could be similar, but there's also a circumstance when you are reconditioning parts, they're not new parts, they're second-hand parts, so reassembling reconditioned second-hand types of parts or worn parts could be quite different to assembling brand new parts.

PN775

Can I suggest to you that the disassembly work for the remanufacturing is very similar to the previous manufacturing work?---I wouldn't agree.

PN776

Can I suggest to you that the remanufacturing work as a whole is very similar to the previous manufacturing work?---Again, I wouldn't agree.

PN777

If you go to paragraph 15 of your statement, you say there that your understanding is that the work - this is the remanufacturing work - was performed only by supervisors. That's not the case, though, is it? That employees other than supervisors were performing the remanufacturing work prior to this dispute being initiated?---My understanding is that the disassembly was performed by the supervisors, that the cleaning was performed by the supervisors, that individual components that require to be re-machined were given to the production worker that operated the machine to carry out the particular re-machining operation and that one employee then, who was an assembly worker, then undertook reassembly.

PN778

You're not saying, then are you, that the remanufacturing work was only performed by supervisors - - - ?---No, what I say in there is that the work referred to by Mr Misra, the new work, was done by supervisors, that the machining work was done by employees who normally did that machining of that part using their normal machine and then the assembly was done by an employee who normally did assembly of steering gears.

**** MARTIN SCHUTZ XXN MR MOIR
PN779

All right. If we can move on. Paragraph 17, you refer there to two employees,
Mr Menon and Mr Triana. Just firstly with respect to Mr Menon, you say that
- well, he agreed to transfer and that's why no issue about redundancy pay arose?
---I say that he requested a transfer.

PN780

Yes, and that was granted by the company?---Yes.

PN781

So no issue of redundancy pay arose, you say?---That's correct.

PN782

Are you aware that Mr Menon revoked his request before - - - ?---No, that's - - -

PN783

- - - the change occurred? Before the change in shift?---That's not consistent with the information that Mr Menon has provided to me.

PN784

I want to suggest to you that Mr Menon revoked his request to transfer shift, but the transfer went ahead at the instigation of the company?---Well, as I say, that is not consistent with the information that Mr Menon has provided to me.

PN785

Do you think you have all the information from Mr Menon?---I would assume so.

PN786

Mr Triana, he moved from the forge area to steering assembly, did he not?
---That's correct, yes.

PN787

You're aware, aren't you, that employees that are engaged in the forge area are covered by appendix 6 of the agreement?---That's correct.

PN788

Appendix 6 clearly contemplates that the employer can redeploy an employee within the forge area to another area of the business?---That's correct.

PN789

So Mr Triana was redeployed in accordance with appendix 6?---That's correct.

PN790

But you say that the ability of the employer to redeploy persons outside of the forge area is constrained?---Yes.

PN791

I see. So you draw a distinction between employees in the forge area and the rest of the workforce in terms of redeployment?---Yes.

PN792

The basis upon which you draw that distinction is because appendix 6 refers to redeployment?---Yes, for the forge.

**** MARTIN SCHUTZ XXN MR MOIR
PN793

I see. You don't accept that the employer has the ability under the award to vary ordinary hours of work without consent of the employees?---As I've indicated before, I don't.

PN794

You don't accept the proposition that the employer is entitled to vary the duties of the employees, so long as they are within the scope and the skills and competency of the employee concerned?---In the case of Tristar, I think we've said two things. One is that there's no process that's been put into place to determine what the scope of the skills and competency of the employees are, and secondly, that there's no - that the Metal Industry classification structure which provides that flexibility does not apply at Tristar and has never been implemented at Tristar.

PN795

You're aware that appendix 6 dealing with the forge area was only inserted for the first time into the current agreement? I'm sorry, I withdraw that. Can I correct it. The appendix 6 was in the 2001 agreement, the predecessor agreement, as well as in the current agreement?---I accept that, if that's what you're telling me.

PN796

It wasn't in the 1999 agreement?---Again, if that's what you're telling me, I don't know different. I haven't examined them.

PN797

Sure. So you say in effect that the ability of Tristar to redeploy any of its employees only arises with respect to the forge area and only arises from when appendix 6 first came into operation, which is some time in 2001?---I think that's right, yes.

PN798

Paragraph 21, if I could take you to that?---Yes.

PN799

You're referring there to Mr Misra's paragraph 27?---Yes.

PN800

Mr Misra is referring there to the packing work performed for a short period as a result of the All-Time buy order?---Yes.

PN801

You're aware that that packing work basically involves placing the product in a plastic bag or plastic bags?---Yes.

PN802

Yet you say, in paragraph 21, that there's been no assessment of skill and competence for employees to perform this type of work?---That's correct.

PN803

Are you seriously suggesting that Tristar should have undertaken an assessment to see whether any of the employees could wrap a product in a plastic bag?---It's - in the terms of this agreement, the employees are engaged to carry out the work of the position which they're engaged in. And that is the limit to what Tristar is able to do. As far as that particular work is concerned, there are a number of other factors, not just skills; also occupational health & safety factors that should be taken into account, but again, the point that I'm simply making is, there hasn't been an assessment of the skills and competence of any of Tristar's employees, as to whether they're competent, physically competent to perform that work.

**** MARTIN SCHUTZ XXN MR MOIR
PN804

Are you seriously suggesting that Tristar should have undertaken an assessment of skill and competence to determine whether any of its employees could put an item in a plastic bag?---Well, you make it sound like it's a - you know, a straightforward thing, but for some of the employees that are there now, some of them consider that to be an issue of concern to them. So in those circumstances, where people raise that concern, that's something that Tristar, in my opinion, should have done.

PN805

Do you accept as a general proposition that the employer has the right to request employees to do duties within their skills and competence, which are other than their normal duties?---Well, not - not in the case of Tristar because as we've said, the workers were employed to perform particular functions, to operate particular pieces of equipment. The agreement envisages the - envisaged the development of a classification structure that would enable the sort of thing that you're talking to me about to occur, but that was never developed. That hasn't been carried out.

PN806

When you say the employees were engaged to perform particular functions on particular machines, can you point us to any evidence to support what you're saying there?---The - the only point that I can make is that what we're talking about here is long-serving employees, we all know that. They were employed before this award came into place. They were employed under previous industrial arrangements, under a particular in-house classification system and pay scale and pay system. That doesn't reflect the Metal Industry Award.

PN807

You dispute the classification structure under the Metal Industry Award applies to the site, do you not?---Yes.

PN808

Yes. Well look, I don't need to debate that proposition with you, but apart from what you have just said then, you have no evidence to support the proposition that employees were engaged at Tristar to do particular functions on a particular item of machinery?---I've got no written contract of employment. I only have what the people there who work there have told me, and that's what they've told me that's what believe.

PN809

Yes. I have nothing further, your Honour.

PN810

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN811

MR NEILSON: Just one moment, your Honour? Nothing further, your Honour.

**** MARTIN SCHUTZ XXN MR MOIR
PN812

THE SENIOR DEPUTY PRESIDENT: Thank you. Thank you, Mr Schutz, you're excused as a witness.

<THE WITNESS WITHDREW [2.48PM]

PN813

THE SENIOR DEPUTY PRESIDENT: Gentlemen, presumably that deals with the evidence to be considered?

PN814

MR NEILSON: Yes, it does complete the evidence, your Honour.

PN815

THE SENIOR DEPUTY PRESIDENT: Yes. I'm unsure as to whether your Honour wanted to review the transcript before I commence with closing submissions, or whether you'd prefer to deal with it now, your Honour?

PN816

THE SENIOR DEPUTY PRESIDENT: Well, I think consistent with what was put when this matter was programmed, both parties put the preference to deal with it all on the one occasion.

PN817

MR NEILSON: Certainly, your Honour. Your Honour, the first occasion that we were before you when we stated that this matter was determined at least in terms of your jurisdictional issue - decision, your Honour, the AMWU, we say, made submissions of how the dispute should be determined on a final basis and I don't propose to go over that in any great detail. Those submissions remain on the record and I won't repeat them verbatim. What we have now, your Honour, is that it is clear, we say from the evidence of Mr Misra that was not in any way contradicted in the cross-examination of Mr Schutz, that Tristar is a company that is in trouble and Tristar is a company that has no work for its employees to perform.

PN818

The work that they say that is available to these employees is work that we say is not genuine in nature and has simply been designed so as to ensure, or at least attempt to ensure, that it does not have to pay to its employees the redundancy entitlements that they are entitled to pursuant to paragraph 21, or clause 21 of the enterprise agreement. There is no doubt, your Honour, that on a plain reading of the agreement that where the company has made a definite decision that it no longer wishes the job an employee has been doing performed by anyone, and that may lead to termination, the redundancy clause in clause 21 is enlivened and the company is under certain obligations with respect to that. We say that clearly from the evidence of Mr Misra today, he confirmed under cross-examination that the rack line, as it was referred to, is no longer required by Tristar for the foreseeable future.

PN819

The rack line machines have been dismantled and removed from the Tristar premises and they are now being housed at a site in Carringbah for an indefinite period of time. We say that, clearly, Tristar have made a definite decision that it no longer requires work for those former employees on the rack line to be performed by anyone. Mr Misra's evidence in relation to the ball joints line is that it also had been removed and that it had no work for those particular employees and/or machines to perform within their ordinary duties, and that there was no work for those employees to perform within the ball joint line in the foreseeable future. The same situation applied with the pinion line, the sleeve line, the valve line and shortly will also apply with the trim room, where Mr Misra said from memory that although the machines have not in fact been removed at this time, they will be shortly.

PN820

We say that clearly Tristar have, pursuant to the terms of the agreement, made a definite decision that it no longer requires that type of work to be performed, and that as such, they are under an obligation to comply with their redundancy provisions as they arise under the agreement. Intertwined into this dispute, your Honour, is the direction of Tristar to transfer employees from one shift, being the afternoon shift, to the dayshift, and your Honour dealt with that in your jurisdictional decision. Tristar has attempted to submit, we would say irrelevantly, that the terms of the award allow such a transfer to occur and that Tristar should be permitted to do so.

PN821

We say that this is not a dispute over the application of that particular award clause, which nevertheless is in dispute, and as your Honour dealt with that particular issue, I don't propose to deal with at any length and questions and/or submissions that my friends have made in relation to the operation of the award as it relates to the direction to transfer. What we have now, your Honour, is effectively a direction by Tristar with respect to the afternoon shift employees to undertake work that was previously performed by employees on dayshift who have now been made redundant. We say that Tristar, in making a determination that employees on dayshift are redundant, be they voluntarily or forcibly, are prevented by the terms of the agreement from directing the afternoon shift employees to move to dayshift and undertake similar types of work.

PN822

We say that clearly in order for clause 21 to be relied upon by Tristar, and there's been no dispute that the positions were in fact redundant, they cannot now direct afternoon shift employees to undertake that same work. Such a proposition, we would say, would defeat the intent and the plain meaning of the redundancy provisions of the agreement. A lot has been made in these proceedings about whether or not the metal industry classification structure applies at Tristar and that was an issue that was dealt with in your Honour's jurisdiction decision. The union, for its part, submits that Tristar has a particular classification structure in operation at its site that is not linked to the Metals and Engineering Award classification structure. We say that the operation of that particular arrangement operates to prevent Tristar under the terms of the agreement from directing its employees to undertake this alternative, alleged, remanufacturing work and we say so for two reasons.

PN823

The first ground is that the agreement itself deals with how relocations and how a direction to perform alternative work is in fact to be provided and that is dealt with, as Mr Schutz said in his statement, and he was tested in cross-examination on this, in appendix 6 to the agreement. Appendix 6, which is headed, Forge, deals with a situation when an employee in the Forge is deemed redundant.

PN824

Given the comprehensive nature of clause 21 of the agreement we say that the presence of appendix 6 clearly envisages an intention on its plain and ordinary meaning that redeployment was to only apply in certain circumstance as is stated with respect to the Forge. To allow it to occur in other areas we would say would defeat the terms of the agreement which clearly, in our view, do not permit such an arrangement to take place. It is therefore inevitable in our view that as these employees are not employed in the Forge, and there's no dispute that they are, Tristar is wholly prevented from redeploying these employees into other areas within the Tristar, or proposed Tristar operations.

PN825

This is not a case, your Honour, where Tristar is direction employees to continue to perform their ordinary work. Tristar is direction these employees to perform work, if you accept its evidence, new work. That is a redeployment in our view and clearly, by virtue of the presence of appendix 6, such a redeployment is impermissible except in circumstances dealt with in appendix 6. If the Commission is against us in relation to the applicability of the classification structure, we say that clearly Tristar - I should just say one other thing as to why we say the classification structure doesn't apply, and that is the evidence of Mr Misra himself as set out in exhibit AM1.

PN826

Mr Misra accepted in his evidence, and it's a well known fact to those that deal with the Metals Award, that classifications are designed to ensure that employees performing similar work in similar environments are remunerated at a similar classification level. From a plain reading of exhibit AM1, which Mr Misra sought to resile away from its accuracy in the witness box, it is clear that Tristar do not apply with any consistency whatsoever the intent and the purpose of the metals classification structure. That purpose, as Mr Misra accepted, was to ensure that employees performing the same amount of work in the same area with the same skills are remunerated at the same level.

PN827

On any plain review of exhibit AM1, there are a number of inconsistencies. We highlighted in cross-examination to Mr Misra the example of the machinists second class, employee 33, Mr Nguyen Duc Hung is rated as a C10 machinist second class, whereas employed 28, Mr Gorgi Stojcevski, is rated as a C12 L3 machinist second class. Mr Misra could not properly explain why this inconsistency would appear to apply. If you extend the example out of the inconsistencies of exhibit AM1, one only needs look at employee 18, Veselin Balovski, who is also a machinist second class, who is rated at C12, but not L3.

PN828

So in the example that we have there are employees, the three employees that we have cited are effectively classified under three different levels, but yet if you accept the position descriptions provided by Mr Misra, they are performing the same amount of work. If one has a look at an example of a machine operator, which I think on any construction, would not be classified as a C10 position, keeping in mind that C10 is a tradesman's base position, employee 15, Jordanka Brsakovska, is rated as a C12 L3 machine operator, which would probably broadly equate to where machine operators are traditionally classified.

PN829

Employee 16, Ms Luba Kuzevska, is employed as a C10 P machine operator. The reason why somebody would be classified with the P is unknown, but leaving that aside, if you accept the submissions of my friend with respect to the operation of the Metals Award classification structure, clearly it is being applied improperly and we say that that would tend to support the view of the union that the classification structure does not apply and accordingly the ability of Tristar to move employees into other areas for which they were not engaged is limited.

PN830

If the Commission is against us in relation to that particular point and the operation or otherwise of the Metals Award classification structure, Tristar have made a lot of the fact that they are entitled to direct employees to perform work within their ordinary classification levels. Mr Misra, in his statement, refers to clause 4.1 of the Metals Award. Relevantly, 4.1.1 is in the following terms:

PN831

An employer may direct an employee to carry out such duties as are within the limits of the employee's skills, competence and training ...(reads)... designed to promote de-skilling.

PN832

Now, Tristar, for its part, have said, yes, we have some work and we want these employees to perform that work. That work, it is said by Tristar, is at the level of C12. That work, it is said, is in the nature of remanufacturing. Now, leaving aside the issue of Tristar making redundant employees engaged in C12 classifications, knowing full well that they actually required them to perform this alleged work, if one is to accept the submissions of Tristar that the classification structure applies and exhibit AM1 is correct, we say that the Commission must relevantly determine that those employees engaged in positions over and above C12 cannot be directed in any way whatsoever to perform work at a C12 level, because to do so would be, if you accept the submission of Tristar that they are entitled to do so and are entitled to rely upon clause 4.1.1, to do so would be to promote de-skilling.

PN833

So we're now left with the situation, if you accept Tristar's submissions and you apply the Metals classification structure, that Tristar in our view is prevented from directing any employees engaged in classifications above C12 from performing C12 work. Therefore what is left for employees engaged in positions above C12 to do? There is nothing for them to do, because Tristar have made a decision that they don't require their positions anymore and that, we say, clearly leads into the fact that these particular people are redundant under the terms of the agreement and they should be entitled to benefit from clause 21.

PN834

Tristar can't have it both ways. Tristar is submitting that we should be entitled to rely upon the award and we should be entitled to direct these employees to perform their work, but then at the same time refuse to acknowledge that to do so would amount to de-skilling for a number of these employees. In our submission, were the Commission to accede to such conduct it would, in our view, defeat the terms of the agreement and would, in our view, amount to an industrial injustice.

PN835

Now, your Honour, I want to make some submissions about whether in fact Tristar genuinely have any work to do on the evidence of Mr Misra. Mr Misra provided evidence in his statement that Tristar conducted an assessment of the skills that it required with respect to its business going forward and it's important to keep in mind that Tristar has known for a significant amount of time that the contracts that it had with the car majors were coming to an end. So it follows logically, we say, that Tristar, in considering its future business operations, would have considered what type of market it was going to enter into and in fact, Mr Misra confirmed that Tristar had undertaken such an analysis, and the type of skills that would be required to operate that business.

PN836

It said that C12 employees are required to operate that business, and Tristar requires those employees. It's also said that this is the reason why Tristar refuses to offer redundancy to the remaining employees because they are still needed. But yet Tristar, as late as one or two weeks ago, accepted a voluntary redundancy of an employee who it says, if you accept its evidence, it still required. Mr Misra said, well, yes, we need C12 employees and then in cross-examination he agreed that one of those C12 employees was recently made redundant.

PN837

If Tristar is genuine about maintaining its business, why would it make redundant an employee that, on its own evidence, it says it requires? In our view this is evidence of the submission that we make that the arrangement that Tristar has in place at its Marrickville operations is nothing more than an attempt to escape from its redundancy entitlements under the terms of its agreement.

PN838

Tristar is obligated to pay to its employees a certain amount of redundancy pay upon those positions being made redundant. It was the evidence of Mr Misra that the remaining employees at Tristar were in the majority for longer serving employees of Tristar. It logically follows, in our view, that the only reason that the longer serving employees of Tristar remain at Tristar is not because that they have some particular skills in the rack line and the ball joint line, the pinion line or the sleeve line which may miraculously reactivate some time in the future. It's because they would cost Tristar the most amount of money to make redundant.

PN839

That is - and we say that submission is supported by the fact if you take a look at the evidence Mr Misra gave in cross-examination relating to an employee in the trim room referred to as Katerina. Now, Mr Misra accepted in cross-examination that Katerina was not an employee of long standing in the trim room. She was transferred from the Forge area pursuant to the provisions of appendix 6, as they are entitled to do and we don't quibble with that, into the trim room so as to avoid a redundancy.

PN840

Katerina, it was accepted by Mr Misra, was working with a number of other employees who had been in that position for a significant amount of time and had more experience than Katerina. Yet Tristar made five of her colleagues redundant at the same time as keeping her. The only reason that Tristar did that, we say, is because she would be entitled to the most on her redundancy. That, we say, is an impermissible reason to refuse to acknowledge the existence of a dispute pursuant to clause 21 of the agreement and deal with the redundancies in that fashion.

PN841

Your Honour, can I just say some final things in relation to the evidence of Mr Misra in his statements of assessments. There has been no assessment done. The reason that we say that there has been no assessment done is because we say that there was a clear summons issued to Mr Misra to produce material directed at the criteria that Tristar had developed on making employees redundant. Mr Misra produced some documentation and the Commission would have that on file and I don't think it's in dispute. None of that documentation went to establishing a selection criteria.

PN842

The fact is Mr Misra's evidence is that, well, we did it informally or we did it as part of a team. It's unusual that a company that's looking to establish itself in a new market and is concerned about the skills that it needs to retain would not have conducted a formal assessment of its employees and those that were remaining and recorded that in writing. That's practical. That's common. That was not done at Tristar. That, we say, leads to the inevitable conclusion that there was simply no selection criteria in place. The only criteria that was applied was the length of service.

PN843

Now, we say that that is in clear breach of the terms of the agreement. Clause 21 of the agreement deals with, as I've said, redundancy. 21.9 of the agreement deals with situations when selection of redundant employees is to take place. The first step is that they must identify the number of redundant positions, their employment categories and their location of employment. Then they must call for volunteers within the identified area of employment and employment category and then it goes on that the company will deal with voluntary requests.

PN844

Then there is a need at paragraph (d) to have regard to maintaining a balance of skill and experience. Skill being the key word. Now, Tristar will argue whether there was a need to balance experience. Experience does not necessarily equate with length of service. Experience, we say, is developed on the basis of working in particular areas over a length of time. That was not present in the circumstances involving the employee in the trim room, Katerina. So even if you accept that Tristar, that there was a balance between skill and experience in certain circumstances and Mr Misra decides, well, I took experience, for some reason that didn't apply in the tri room with Katerina who was an employee who has been in the trim room for only two years. Her colleagues had been in there for upwards of 10.

PN845

So how is it that Katerina was not made redundant but the others were. What inevitable conclusion are we left with? The inevitable conclusion we are left with, we say, is that skills were not a part of Tristar's decision. That is a clear breach, in our view, of the terms of the agreement and in our view the employees that we have cited are clearly redundant. Those are our submissions, your Honour.

PN846

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Neilson. Mr Wallace?

PN847

MR WALLACE: I would adopt those submissions, your Honour.

PN848

THE SENIOR DEPUTY PRESIDENT: Mr Currey, you too?

PN849

MR NEILSON: Sorry, your Honour, I should just say that when we say that they are redundant it also flows that if we fail in our submissions that the employees are redundant it must follow that Tristar is prevented from directing the remaining employees to undertake the work that they wish to do.

PN850

THE SENIOR DEPUTY PRESIDENT: Yes, I understood that.

PN851

MR NEILSON: Thank you, your Honour.

PN852

THE SENIOR DEPUTY PRESIDENT: Mr Moir?

PN853

MR MOIR: Your Honour has characterised the matters in dispute at paragraph 7 of your Honour's decision on 4 October and your Honour identifies there that the two issues are whether the company's direction for employees to perform the remanufacturing work is valid or not and in addition to that whether the direction for seven employees to transfer from afternoon to day shift is also valid in light of the terms of the enterprise agreement.

PN854

THE SENIOR DEPUTY PRESIDENT: Do I gather from the proceedings that in fact it's now a direction to two employees to transfer?

PN855

MR MOIR: Yes, that's correct.

PN856

THE SENIOR DEPUTY PRESIDENT: Yes.

PN857

MR MOIR: So I'd like to spend some time addressing those two issues, your Honour, and in the process I'd like to address the union's contention that the remanufacturing work which the employer wishes to be carried out during the day shift is somehow a façade is somehow a product of engineering designed to avoid the redundancy pay obligations under the agreement, because that proposition is strongly rejected by the respondent. The respondent says that it has work that it requires to be performed by the employees remaining at the site. The employees thus far are refusing to cooperate in that regard and they're refusing to cooperate because they seek access to the pot of gold found within the redundancy pay clause.

PN858

The employer, however, has the prerogative to arrange its business in the way that it sees fit and in this case Tristar has work that it wishes its employees to perform by way of remanufacturing work, and for that work to be performed during the day shift, and this is not some product of mere fancy or speculation, the remanufacturing work. The work exists. The unchallenged evidence of Mr Misra is that until the current status quo limitation was imposed, that remanufacturing work was being performed and it was being performed by other than just supervisors. It was being performed by the rest of the workforce.

PN859

Moreover the requirement for that remanufacturing work to be performed remains existent today. It is work that is available for the employees to perform right now. Mr Misra gave unchallenged evidence that in order to engage in this type of remanufacturing work, Tristar needs to build up its inventory levels in order to attract customers for the remanufacturing work it is a "minimum requirement" as Mr Misra described it, for stock to be built up because once Tristar receives an order for the reconditioned product, it needs to have significant levels of that product ready to be supplied to the customer, otherwise the customer just won't be interested. That is the essential pre-condition for entering that type of work, that the inventory has built up.

PN860

Now, the employer currently requires its employees to perform that remanufacturing work and the evidence clearly establishes that this remanufacturing work entails very similar tasks, duties and skills that were previously performed by the employees. The remanufacturing work would require the employees to do very similar tasks to what they have always done. It's not as if the employees are being asked to do something that they are totally unfamiliar with or that they would have no confidence about. They are being asked to do tasks for which the employer has a need which are within their skills, qualifications, competence and training.

PN861

The union raises the point that a lot of the remanufacturing work would involve process work or machine operating work which would be at a lower level of skill than what some of the employees have performed in the past, and there's reference made to the trades qualified employees in that regard. The point of the employer entering the remanufacturing work in the first place is that it is envisaged that the skills possessed by the employees would be called upon at some future point. Now, until of course the employer is able to get into that market, the skills can't be called upon here and now, and indeed, while the ban limitation remains in place, that's certainly the situation.

PN862

But it is envisaged, and in my submission it's on a reasonable basis by the employer, that if inventory levels are built up, if Tristar is then able to attract custom for the remanufacturing work, then the employees would be called upon to exercise all of their skills, all of their training, all of their competency as they have done in the past. But in the present circumstance the employer is unable to call upon those skills whilst the employees are simply refusing to cooperate and, moreover, they are refusing to cooperate in the employer's endeavour to build up the inventory and gain, as it were, a foothold within that reconditioned steering rack market.

PN863

Now, that's not some sort of a device or artifice being set up by the employer to avoid redundancy. That's a legitimate attempt by Tristar to maintain its business and to provide meaningful work for its employees, attempts which are thus far being resisted at every turn by the unions and by their members. Now, the background to the dispute before your Honour is set out in Mr Misra's witness statement and he describes how, over the past 18 months, there has been a significant reduction in the employer's workforce and that approximately 250 employees have been made redundant over the past 18 months or so, and Mr Misra goes on in paragraph 4 of exhibit R2 to describe how Tristar has attempted to not only maintain the viability of its business, but to ensure ongoing employment for the remaining employees, to review its operations and to look at different ways of achieving this and one of those ways, indeed, the principle way, is through the provision of the remanufacturing work and through the provision of transfer of afternoon shift employees to day shift.

PN864

Then Mr Misra goes on in his witness statement to describe how Tristar has attempted to achieve those objectives. And the union says that, well, the real reason that Tristar has a group of remaining employees is because they haven't been willing to make them redundant. They should be made redundant and they should be paid out hefty amounts of redundancy pay and that the only reason that they're not being made redundant is because of the cost to the employer. In my submission that confuses the issue. It confuses the issue because the redundancies which have occurred in the past have been on a legitimate basis and, as Mr Misra described in his evidence, length of service has been a relevant consideration and in some cases it has been a critical consideration, and the reason for that is quite straightforward.

PN865

Where you have a group of employees whose skills, competence, training, expertise, qualifications and so forth are all equal, then the potential cost of the redundancy will clearly be an important factor, and indeed, it's not uncommon in the industry for it to be the decisive factor and the Commission will be well familiar with this, having heard numerous redundancy, unfair dismissal cases over the years and disputes about redundancy pay, that length of service and the potential cost of redundancy are often critical, if not decisive factors, in the selection of employees for redundancy.

PN866

Now, the fact that Tristar may have selected employees for redundancy, taking into account length of service in the past, is not surprising. Indeed, it would be surprising if it were otherwise and furthermore, where all other considerations are equal, it wouldn't be surprising that length of service is the critical consideration once all of the selection criteria are reviewed and assessed. There's nothing startling in that proposition and there's certainly nothing insidious or wrongful about that as those on the opposite side of the record are attempting to suggest.

PN867

The proposition is put that Tristar is in effect contravening the terms of the agreement and being an employer without any clean hands, because it may have chosen employees in the past on the basis of their length of service. But in my respectful submission it's quite rational for any employer to take into account the potential cost of redundancy by way of employee's length of service and where all other things are equal, it will become the decisive factor.

PN868

So there's nothing wrong with what Tristar has done in the past, but even if the unions still say that that's not the case, then this is not the forum for dealing with what has happened in the past for the redundant employees. This dispute is about the remaining employees and whether Tristar is within its legitimate rights to call upon employees to engage in other work and for some of them to do it by way of a transfer from one shift to the other. In my respectful submission, not only the evidence, but the terms of the agreement provide that Tristar is well within its rights to undertake these changes, changes which are regrettably being resisted.

PN869

Now, if I could then turn to the two issues - - -

PN870

THE SENIOR DEPUTY PRESIDENT: So which parts of the agreement do you say allow that?

PN871

MR MOIR: Well, there are numerous parts, your Honour, and I was going to make the point at the outset that clearly the agreement needs to be construed as a whole and that where propositions are being put to your Honour about how one clause within the agreement operates, your Honour needs to consider that clause or clauses within the context of the agreement and there are numerous examples where the parts of the agreement relied upon by the unions can't be read in the way being put forward because their interpretation is inconsistent with other parts of the agreement and I'll come to that in due course, but as a general proposition, and this holds true from the High Court Amcor decision which we've referred to in our outline of submissions, that the agreement needs to be construed as a whole and when your Honour is considering particular clauses - - -

PN872

THE SENIOR DEPUTY PRESIDENT: That was paragraph 8 of my first decision.

PN873

MR MOIR: Yes, indeed.

PN874

THE SENIOR DEPUTY PRESIDENT: Paragraph 8 said any part of the agreement is to be read in context to the whole and construed in accordance with its stated objectives.

PN875

MR MOIR: Yes. So if I could go to those objectives, which your Honour also addressed in your decision, clause 2.1 of the agreement refers to what is the objective of the agreement and therefore the intention of the parties and this was highlighted in the respondent's submissions on the jurisdictional point, you couldn't get a more categorical statement about what are the objectives of this particular enterprise agreement. It's in the first sentence and it's in two parts. One, to ensure ongoing viability, and secondly, to ensure the employment security of its employees.

PN876

Now, if you accept the proposition advanced by the unions, they would have it that Tristar should just collapse, should just fall in a heap tomorrow and pay everybody out redundancy and we all walk away and that's the end of Tristar. That's the proposition being advanced by the other side. But it's totally contrary to the ongoing viability of Tristar, but moreover it's contrary to the verb within the sentence, "to ensure". The approach adopted by the unions is to ensure the collapse, the disappearance of Tristar.

PN877

Rather than looking at ways to maintain Tristar through provision of meaningful work, the union put as a proposition to this Commission that we should all just decide that it's a redundancy situation. Employees receive their cornucopia under a redundancy clause and Tristar just folds in on itself. The union's case is also contrary to the second part of the first sentence, "To ensure the employment security of its employees." The union case is the exact opposite. It's not to ensure the employment security.

PN878

It's to ensure their dismissal. It's to ensure that they are made redundant so as to receive large sums of money and it's quite a dysfunctional situation and it's a sad indictment upon what redundancy pay can do to a workforce and can do to an enterprise and regrettably it's a situation which those instructing me have had much familiarity over the years in the manufacturing sector, where exceedingly generous redundancy pay provisions bring about all sorts of dysfunctional industrial behaviour. So the union's case is totally contrary to the objectives of the agreement.

PN879

Just turning to specific clauses within the agreement, and firstly, within the context of the direction to transfer employees from the afternoon shift to the day shift. In my submission the agreement is clearly to be read in conjunction with the award and in resolving the dispute, the Commission is entitled therefore to have regard to the terms of the award. Clause 6 of the award deals with ordinary hours of work and under clause 6.1 it's clear that the employer has the discretion to fix the ordinary hours of work. That's made clear, for example, in 6.1.1(c). 6.1.4 goes on to deal with the methods of arranging the ordinary hours of work, and it clearly says that not only does the employer have the right to fix the daily hours of work for day workers, but the employer also has the right to fix the commencing and finishing times of shifts from time to time.

PN880

Now, in my respectful submission, the employees concerned here, and there are only two of them now, are performing work on afternoon shift. That work attracts an afternoon shift allowance in compliance with the award, but the hours that they are actually performing on afternoon shift remain ordinary hours of work and the employer is well within its rights under clause 6.1 to fix, and indeed vary, the ordinary hours of work, and that's what the employer is seeking to achieve in this case. The employer is seeking to vary the ordinary hours from the afternoon shift to the day shift.

PN881

Now, in contrast to the employer's attempts to do so, the evidence before the Commission is that the employees are not doing any meaningful work. Mr Schutz' evidence, this is at paragraph 119 of the transcript, is that the employees are playing cards and reading newspapers. So despite the employer's efforts to provide the employees with meaningful employment, in return for the wages and other benefits that the employer is continuing to provide, the employees are playing cards and reading newspapers.

PN882

Now, such a situation in my respectful submission was never contemplated by the award and the framers of the award and clearly the unions to this dispute are parties to that award and over the years a great deal of attention has been placed by the parties to the provisions of the award including the hours of work clause, and under the hours of work clause, the employer has the discretion to fix the ordinary hours of work and in my submission, Tristar, when you read the agreement in conjunction with the award, therefore has the right to fix the ordinary hours for those working on afternoon shift, and in this case it's seeking to fix those in accordance with the day shift.

PN883

Now, the AMWU, in its submissions, calls upon the classic definition of redundancy and say that the employer's attempt to transfer from one shift to another constitutes a classic case of redundancy. But in my respectful submission that proposition is based upon the concept of the job which is extremely limited in its scope and which is clearly artificial and out of step with commercial and industrial realities.

PN884

It's also out of step with the arrangements which are required at Tristar over many years. The union's notion of a job, namely a job which is fixed to afternoon shift and attached to afternoon shift and nothing else, is not plausible on a number of fronts. Firstly there's just no evidence that the relevant afternoon shift employees were engaged specifically as afternoon shift employees and nothing else. There's no contractual issue in other words, your Honour, there's no letter of appointment or written contract of employment which stipulates that the employees concerned are engaged for particular hours and nothing else.

PN885

So there's an issue about whether a contractual point arises over the application of the agreement anyway and whether your Honour can deal with that, but in any event, your Honour doesn't need to be too troubled about that because there just is no contractual point. There's no evidence that the employees concerned, as a matter of contract, are engaged to perform hours in accordance with afternoon shift only. Indeed, the evidence of Mr Misra was to the contrary and I just refer your Honour to exhibit R2 and to paragraphs 8, 9, 10, 11, 12 and 13 where Mr Misra points out that the company does not engage its employees as day or afternoon shift workers. Rather, they are engaged on shifts as required by the company, and that's indeed how it has worked in the past.

PN886

The second reason why the union's position that the employees are engaged on an afternoon shift position only and nothing else, the second reason why that falls down is that the terms of the agreement itself would lose their internal inconsistency if that notion advanced by the unions was adopted.

PN887

THE SENIOR DEPUTY PRESIDENT: In total inconsistency or consistency?

PN888

MR MOIR: Inconsistency. I'm sorry, yes, they would lose their consistency and would create therefore inconsistency if such a construction was adopted, and here is where the Commission needs to look at the relevant clauses of the agreement in conjunction with one another. If the Commission turns to various clauses in the agreement, the respondent says that these would support our proposition that the work performed does not relate to the job the employees engaged to perform and in particular, if your Honour has regard to clauses 11 and 21, firstly going to clause 11.

PN889

Clause 11 deals with consultation and in particular clause 11.4 identifies the types of circumstances that trigger a requirement to consult and there are a range of matters identified there and they include, for example, termination of employment, major changes in composition, operation or size of workforce, et cetera, et cetera. Now, those are scenarios which ordinarily would activate redundancy provision where there is a termination of employment arising from an operational need, where there is a reduction in the size of the workforce and so forth.

PN890

Clause 11.4 also refers to hours of work. Now, that reference to alteration of hours of work clearly contemplates that there will be a need for consultation if such a significant effect was generated. That does not support the proposition that employees therefore are wedded to one particular shift at the site and cannot therefore be transferred to another. Indeed, it contemplates the opposite. The reference to alteration of hours of work contemplates that the employer is required to consult where it seeks to alter the shift arrangements. So as a matter of normal construction, clause 11.4 contemplates that employees covered by the agreement can have their hours of work altered provided that there is adequate consultation in accordance with clause 11.

PN891

That provision about alteration of hours of work clearly provides that where the award makes such a provision, your Honour will see in the final sentence of 11.4 that it says there that provided that where the award makes provision for alterations of any of the matters referred to herein:

PN892

an alteration shall be deemed not to have significant effect.

PN893

So if it's an alteration in compliance with the award, then the consultation obligation is not triggered. So there is that significant caveat upon the operation of clause 11, and in my respectful submission I've already addressed how the transfer from one shift to another is in compliance with the award and therefore the consultation provisions under clause 11 are not triggered.

PN894

But putting aside that point, clearly clause 11, on its face, contemplates the very concept of an alteration of hours of work and that's the critical factor for your Honour to have regard to. The agreement itself contemplates a transfer from one shift to another and this may or may not necessitate consultation. Now, at clause 21 it also assists in determining whether the employer has the right to transfer employees from one shift to another. Clause 21.9, which my friend has taken your Honour to, establishes a procedure for making employees redundant and your Honour has been taken through that and I note that my friend highlighted subparagraph (d) about maintaining a balance of skill and experience within the department.

PN895

Clearly the issue of experience will have greater weight where issue of skill are equal, where the level of skill, expertise, competence, et cetera, amongst the relevant employees is equal, then experience will come into the fore, and the evidence in this case is that the respondent has been careful to ensure that experienced employees remain within its enterprise, experienced employees who are capable of carrying out the work which the employer wants to be performed, namely the remanufacturing work. So any suggestion that the redundancy process adopted by the company thus far has not been in compliance with maintaining a balance of skill and experience is just wrong. The evidence clearly establishes that in most, if not all instances skill is a neutral factor, it's even across the board, experience then comes into primary consideration and the evidence of Mr Misra is that even though many long serving employees have been retained, there have also been a number of long serving employees made redundant.

PN896

So it's not as if there's some universal situation applying there, that only those with the highest levels of service have been retained. It's not that straightforward at all, your Honour. The employer has had regard to issues of experience where skill has been a neutral factor, and that's reflected in Mr Misra's evidence, and as I made the point before, there's nothing inherently wrong, and certainly nothing in contravention of the agreement, for the employer to have regard to the potential cost for redundancy, as one of the selection criteria, and indeed, the evidence of Mr Schutz, although he didn't want to concede it too readily, was that employers do take that into account and that as a matter of logic where all other factors are equal, it will be the determining factor.

PN897

There's nothing evil about that. In fact, it's perfectly rational for any business person to take that into account. Indeed, as I said before, it would be quite bazaar if it were otherwise. Now, coming back to clause 21 and how we say that this contemplates a chance in the shift arrangements, if your Honour has regard to clause 21.14, I've taken your Honour to clause 11 which talks about alteration of hours. Here clause 21.14 also contemplates a transfer of employees, not just an alteration in their hours, but a transfer from one shift to the other. Clause 21.14 makes provision for the payment of a shift allowance as part of the severance pay entitlements owed to an employee in circumstances where the employee has worked on shift for six months in the preceding 12 months prior to termination.

PN898

And this clause is clearly designed to protect employees and their shift penalties in a situation where they are transferred from one shift to another prior to being made redundant. So the clause clearly contemplates the transfer of employees either on to shift work from day work, or more relevantly, from shift work to day work. Such a provision is totally inconsistent with the argument advanced by the union that an employee's job is connected to the time at which the duties are performed, thereby precluding transfer from shift work to day work.

PN899

The third point I make about the transfer issue is just a reference to the Amcor decision and if your Honour has regard to paragraph 14 of the joint judgment of Gleeson CJ and McHugh J in the Amcor decision, and that's at 2005 HCA 10. It's the internet reporting, paragraph 14, their Honours dealt with the notion advanced by the unions in that case that an employee's position is limited to a position within Amcor's business and not within another business.

PN900

You will recall, your Honour, that in that case Amcor set up another company, Paper Links, and the employees were made redundant by Amcor on the Friday and then they came back and performed work on the Monday, the exact same duties, exact same location, exact same pay and benefits, but just working for a different entity, and the unions argued in that case that the employees were, despite performing the same work, and not losing employment in any real sense, they were entitled to redundancy pay.

PN901

It's a bit like the artificial proposition being advanced in this case that even though the employer wants its employees to perform work, the employees should be paid out their redundancy, and that was totally knocked on the head, that type of notion, by the High Court. In paragraph 14 their Honours said that the position being advanced by the unions about the meaning of a job or a position was too narrow and, quote:

PN902

It allows insufficient flexibility to accommodate the commercial and industrial realities with which the general terms of the redundancy clause had to deal.

PN903

Now, we would also submit that the narrow construction of the agreement being advanced by the unions in this case has the effect of creating a redundancy situation where one does not exist and that such a reality cannot align with the stated objectives of the agreement, namely to ensure the employment security of employees.

PN904

If I could turn then to the second issue, which concerns the employer's attempts for the employees to undertake the remanufacturing work. Apart from the remanufacturing work, the evidence establishes that the employer has requested the employees to perform other sorts of duties. Mr Misra, in his evidence, gave an example of the packing work that has been required to be undertaken by the employees. At paragraphs 26 and 27 of his statement, exhibit R2, he describes the circumstances under which the employees have been requested to perform the packing work. It was work that was only required for a short period. It was not expected at the time that the last packing employer was made redundant, that this work would then subsequently emerge.

PN905

Mr Misra explained in his evidence that the reason this packing work came about was that Tristar received an all time buy order from Toyota and that this order was totally unexpected. Once the order arrived unexpected, Tristar needed its employees to do the work, and the evidence establishes that it's not particularly sophisticated work. It involves placing the items in plastic bags, having them wrapped essentially and it was work that was only done for a short period. Now, it's somehow suggested that this amounts to an attempt by the employer to de-skill and to denude the workforce of its skills and ability and somehow insult them by requiring them to do some necessary work that the employer has.

PN906

In my submission, that's a useful insight into the tenure of the union's submissions, that any work that the employer might call upon for its employees to perform is somehow an evil to be avoided. That's a ridiculous proposition. If the employer has meaningful work for the employees to perform, then they should do it. They shouldn't just sit around playing cards and read newspapers and take their wages and other benefits, and at the same time basically tell the employer when it comes along and says, look, I have some duties for you to perform, the employees and the union say, well, you can stick it up your jumper.

PN907

That type of behaviour, one would have thought, is characteristic of dark ages lost passed, but in terms of the relevant clause of the award, clause 4.1, which my friend seeks to rely upon, my friend says that requiring the employees to perform such duties amounts to de-skilling. Well, that may have some substance if the employer had deliberately embarked upon a course of action to de-skill its workforce and that's clearly what clause 4.1.1 is all about.

PN908

It talks about such duties, namely the alternative duties, not being designed to promote de-skilling and I emphasise the word, design. In other words, the employer is not entitled to knowingly and deliberately embark upon a course of action designed to promote de-skilling. That's what clause 4.1.1 is all about. But the evidence in this case doesn't show that this is what Tristar is doing. There's no evidence that Tristar is out to deliberately undermine and de-skill its workforce as a knowing course of action.

PN909

The evidence of Mr Misra is, we have some work to be done. We have an unexpected order which needs to be fulfilled. We expect our employees to pitching and do their bit in return for the wages and other benefits they receive, and what's the response of the employees? Well, you can basically get stuffed. You can do the work yourself while we sit around and play cards and read newspapers. Now, in my submission any attempt to rely upon clause 4.1 is a nonsense, and it only highlights the artificial and, quite frankly, surreal position being advanced by the unions in this case.

PN910

If I could also refer to a relevant decision, and perhaps if I can hand up an extract from the decision to your Honour. This is a decision by the Industrial Relations Court of Australia, Justice O'Brien, from 1995, your Honour, and it dealt with an unlawful and unfair dismissal claim under the old legislation, but his Honour made some observations about the meaning of redundancy which are, I think, relevant to this matter and if your Honour turns to the second page of the photocopy, page 308, his Honour sets out the definition of redundancy which is cited by the AMWU in this case, it's the decision of his Honour, Bray CJ, the well known decision in Adelaide Milk Cooperative, and his Honour notes how that definition of redundancy was endorsed by the Full Bench in the original 1984 redundancy case.

PN911

His Honour goes on to say, and you'll note there's some post-it notes which remained on the photocopy, so it's at the bottom of the first post-it note, your Honour, but the reference is there to Bray CJs description of what can constitute redundancy, does not express to be exclusive, his Honour's description was cast in terms of:

PN912

A job in the sense of a collection of functions, duties and responsibilities entrusted as part of the scheme of the employer's organisation to a particular employee. However -

PN913

and this is the relevant part -

PN914

it is within the employer's prerogative to rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly created positions. It is inappropriate now to attempt an exhaustive description of the methods by which a reorganisation of that kind may be achieved.

PN915

But what that clearly says, your Honour, is it's within management's power and discretion to rearrange the way in which work is performed at the enterprise, and Mr Misra, in his evidence, has described how that's exactly what the employer has attempted to do. An employer has an intention to do that principally by having its remaining employees undertake the remanufacturing work. Now, that brings me squarely to the second issue identified in your Honour's decision about the directive for employees to undertake the remanufacturing role. The union says that the agreement does not allow Tristar to redeploy employees to the remanufacturing world, except with the possible proviso that appendix 6 allows redeployment for employees who were engaged in the Forge area.

PN916

Otherwise the unions advance the argument that the agreement simply does not allow Tristar to undertake this type of redeployment from the previous manufacturing work to the remanufacturing work. In my submission the AMWUs reliance upon appendix 6 is misconceived. Just because there is a specific appendix dealing with a specific group of employees based upon a specific situation and identifying a specific process for that group, does not mean that it is an exhaustive statement of the situations in which employees can be redeployed. Just because redeployment is talked about in appendix 6 does not mean that it's off the cards for everyone else. It's a nonsense proposition.

PN917

All appendix 6 does is, in addition to the general obligations under the agreement, nominate a specific process for a specific situation applying to a specific group of employees. That does not amount to an exhaustive statement of when redeployment may or may not occur. Your Honour can have regard to other clauses within the agreement to support this construction. I've already taken your Honour to clause 11, but can I just take you back to it, to knock this proposition on the head. Clause 11.4 clearly talks about certain changes or proposed changes that may require consultation by way of significant effects, and one of those significant effects is identified as the need for retraining or transfer of employees to other work or locations and the restructuring of jobs.

PN918

So the general provisions of the agreement clearly contemplate redeployment. That is, the provisions outside of appendix 6. So the union's argument that appendix 6 is the be all and end all, the final word, the one and only word on redeployment is a nonsense. Clause 11.4 clearly talks about, and if the union's argument was adopted, then there would simply be no work for clause 11.4 to do. Clause 11.4 would be a dead letter. It would never have been required within the agreement and you'd question why it was ever put there, and of course it is there and it's been signed on to by the unions as much as Tristar and they should be held to it.

PN919

They shouldn't be able to walk away from it. They shouldn't be able to say, well, sorry, we don't accept any proposed restructuring of jobs, we don't accept any transfer of our members to other work because we want our redundancy pay. They shouldn't be allowed to get away with such a ridiculous proposition and where the evidence clearly establishes that there is meaningful work that Tristar requires them to perform, then this Commission should say to them, get to it. You're being paid to do a job, go and do it. Don't sit around here playing cards and expect otherwise.

PN920

Might I also say, your Honour, that clause 11.4 was reflected in identical terms in the 1999 agreement.

PN921

MR NEILSON: Your Honour, I object to that. There's no evidence of that whatsoever from this Commission, but - - -

PN922

MR MOIR: Your Honour can have regard to an instrument of the Commission which is readily available on the internet. It doesn't need to be introduced into evidence. It's like an award. It's a statutory instrument and if your Honour has regard to it, like your Honour can have regard to a judgment which is readily available from the internet as well, your Honour will see that clause 11.4 is reflected in clause 12.4 of the 1999 agreement. So it's not as if the parties have contemplated a transfer to other work or restructuring of jobs in only the past few years. It's been something on their mind, and clearly contemplated, for many years and reflected within the terms of predecessor agreements and I might also add, your Honour, that there is no - - -

PN923

THE SENIOR DEPUTY PRESIDENT: The '99 agreement was with a different employer, wasn't it?

PN924

MR MOIR: Yes, it was with the predecessor employer, TRW.

PN925

THE SENIOR DEPUTY PRESIDENT: Yes, thanks.

PN926

MR MOIR: And I might also point out, your Honour, that the 1999 agreement did not include any appendix 6. Appendix 6 has come along more recently, but clause 11.4 remains.

PN927

THE SENIOR DEPUTY PRESIDENT: Yes.

PN928

MR MOIR: The proposition has also been put by the unions that - - -

PN929

THE SENIOR DEPUTY PRESIDENT: My recollection is that Tristar was a successor in the year 2000, it was subject to the decision of Munro J, if I recall, in February, 3 February 2000, yes.

PN930

MR MOIR: Yes. Just two further points on the company's directive for employees to transfer to the remanufacturing work. I've already taken your Honour to the relevant clauses of the agreement. The agreement is to be read in conjunction with the award. Tristar relies upon clause 4.1.1 of the award which I've referred to a short while ago in the context of alleged de-skilling. That subclause provides that Tristar may direct its employees to carry out such duties within the limits of their skills, competence and training consistent with the classification structure of the award.

PN931

In my respectful submission the employer's attempts to transfer the
employees - transfer is the wrong word - to require the employees to undertake the reconditioning work is totally consistent with clause 4.1.1 of the award and that clause is ancillary to the agreement, and no doubt would assist your Honour in resolving the dispute about the application of the agreement. The second point, and final point I make about the reconditioning work is to deal with the union's argument that the award classification structure does not apply at the Tristar site and therefore Tristar is not entitled to rely upon the flexibility contemplated under the award with respect to that classification structure. It's suggested that Tristar has its own internal classification structure and that the award classification structure therefore does not apply.

PN932

Well, if Tristar does have its own internal classification structure, it's one that Tristar is not aware of. It's a total mystery to the respondent which only allows that it's a nonsense proposition. There's no evidence that there is some classification structure other than the Metals Award applying at the site. The evidence is the contrary. The evidence is that employees have, for many years, been classified in line with the Metals Award. Now, it may be that there have been errors in respect of particular employees and this has been an issue highlighted by my friend with respect to AM1 and Mr Misra frankly conceded that there may be errors contained within that document.

PN933

Just because there may be errors on the face of that document does not actually mean that the relevant employees are, as a matter of fact, being mis-classified or inadequately classified under the award. That would have to be a matter for determination in another set of proceedings and probably somewhere else. What the evidence contained in AM1 does show, your Honour, is that the Metals Award structure does apply. Whether it applies accurately with respect to each individual employee may be a matter for debate somewhere else, but clearly that classification structure does operate and the provision under the agreement which talks about the parties devising a structure within the first six months of the agreement, the evidence establishes that that hasn't borne any fruit and that clearly under the terms of the agreement the Metals classification structure continues to apply until such time as it is replaced by something else, and it never has been and there's no evidence that it ever has been.

PN934

So the Metals Award and its classification structure clearly does apply to this site and under the Metals Award, the employer is entitled, in accordance with clause 4.1, to provide work to its employees within their level of skill and competence, and the evidence of Mr Misra establishes that's exactly what the employer has attempted to do. Mr Misra describes in more detail the remanufacturing work. He describes how it is essentially process work but it may involve higher levels of skill into the future once customer orders are gained, and I refer to paragraphs 17 to 18 of exhibit R2.

PN935

Mr Misra also says at paragraph 19 that the work has already been performed by some employees and he also points out at paragraph 22 that the work is equivalent to a C12 classification which all employees at least have. Now, it may not be the work that the employees desire, but they remain on the payroll and in my respectful submission it's quite legitimate for their employer to ask them to carry out those duties in the hope that further work may be generated for the site. That is totally consistent with the objectives of the agreement, being to ensure the ongoing viability of the firm, and to ensure the employment security of its employees.

PN936

The proposition advanced by the union that the Commission should interfere with the company's request for the employees to undertake these duties, is unreal, it is a nonsense and it's at odds with the stated objectives of the agreement. The logical consequence of the employees' and the union's position is one which they've now come out into the open about and that is, we don't want to undertake those different tasks and duties because we want the company to pay us our redundancy. We want the company to terminate our employment, to wind up the business as a consequence and as a result also to effectively dissolve the agreement. So it's kind of an irony that a dispute brought over the application of the agreement is actually a dispute to cease the agreement.

PN937

The union's proposition is that the agreement should fold in on itself and along with that the company and the employment of the remaining employees. It just highlights how silly the union's position is in this case and how, in my respectful submission, the position advanced by the union should be rejected, the respondent's attempts to implement the changes should not be interfered with by the Commission. If the Commission pleases.

PN938

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Neilson?

PN939

MR NEILSON: Your Honour, can I just deal with that last submission which I find quite amusing, and that is that the unions are in fact advocating dissolution of the agreement. The unions aren't advocating that - well, sorry, I should say this. The agreement is binding upon a number of parties, they being the AMWU, ETU, the AWU, Tristar Steering and Suspension and its employees, even if the Commission was to accept that the employees are in fact redundant, the agreement just does not dissolve.

PN940

The AMWU at no stage in these proceedings, I don't think, and certainly and probably would get into some trouble if it did, it advocated that we in fact want to make ourselves redundant from the terms of this agreement. Mr Moir's submission is clearly misplaced and quite frankly irrelevant. Now, dealing with perhaps some of the more substantive submissions that Mr Moir has made in relation to this issue, the first thing I want to deal with is the notion that these employees are effectively attempting to access some form of pot of gold from Tristar and Mr Moir referred to that on a number of occasions.

PN941

That suggestion is clearly offensive to the employees who are bound by this agreement and it's offensive on the basis that Tristar Steering and Suspension in good faith, or whatever, entered into obligations to pay to these employees four weeks per year of service upon redundancy. Any suggestion that the employees are asking for anything other than what they are otherwise entitled to is simply ludicrous. If anything Tristar is trying to get out of its obligations to pay what is mandated by the terms of the agreement that it must pay.

PN942

There is no suggestion here whatsoever that these employees are asking for anything other than what is mandated by the terms of the Tristar Steering and Suspension Australia Limited Certified Agreement. If anybody is doing the wrong thing in these proceedings, it is Tristar. Can I take you to some issues in relation to Mr Moir's submission, and it's inconvenient at the moment, but Mr Mead has in fact stepped out of the room, on the issue of the award question and whether in fact the award permits a transfer from afternoon to day shift.

PN943

Your Honour will recall, in fact you make reference to it in your decision on jurisdiction, that there was a similar issue before the Commission in relation to a transfer from night shift to afternoon shift. The union advances similar submissions to that of Mr Moir in relation to the operation of the agreement and its relationship with the award and whether or not that permitted a transfer to occur, save for that we say that the award did not permit such a transfer. Your Honour dealt with that issue by rejecting those submissions, finding that the Commission did not have jurisdiction to determine that particular issue.

PN944

It's on that basis that we say that Mr Moir's submissions on those points are completely irrelevant and we don't intend to go to any detail whatsoever to reply to them, save for that we do not accept that the award permits the arrangements that he went into in some detail, and it's unfortunate that he was not aware of that particular decision. The notion that - - -

PN945

THE SENIOR DEPUTY PRESIDENT: If you do want to say anything in relation to that you should proceed on the basis that I don't necessarily remember right now all the detail that was dealt with in that particular case. It's been a long day, Mr Neilson.

PN946

MR NEILSON: I appreciate that, your Honour, and if it is deemed necessary that we should say something on that, then I think it would be appropriate that we'd come back on that issue. In our view we have already put our submissions in relation to this issue and we were not seriously aware that that was an issue that was going to be run and probably are not seriously prepared for it at this particular time, suffice to say that I do have submissions on that issue that I can bring back and put on fairly quickly if your Honour requires that to be done, and I can do that in writing, your Honour, in a short period of time.

PN947

Mr Moir indicated, I think, that he'd like to reserve his position in relation to that as well. I think he wants to have the opportunity to review your previous decision on that.

PN948

MR MOIR: Yes, your Honour. If I could be permitted to review your Honour's earlier decision and if - - -

PN949

THE SENIOR DEPUTY PRESIDENT: It was a relatively simple decision on transcript, if I remember rightly, wasn't it?

PN950

MR NEILSON: I think it was, your Honour, yes.

PN951

THE SENIOR DEPUTY PRESIDENT: Yes.

PN952

MR MOIR: I won't say anything.

PN953

MR NEILSON: But the transcript, from memory, the nature of the dispute was that Tristar directed its employers to move from night shift to afternoon shift. The union had advanced submissions that the agreement by its reference to the award allowed the Commission to determine whether or not the award permitted the transfer from night to afternoon shift.

PN954

THE SENIOR DEPUTY PRESIDENT: And what I said was, no, this is not a dispute over the application of the agreement.

PN955

MR NEILSON: That's correct.

PN956

THE SENIOR DEPUTY PRESIDENT: It's a dispute over the application of the award effectively.

PN957

MR NEILSON: That's correct, yes, your Honour, and that's why we haven't advanced submissions of similar nature in these proceedings.

PN958

THE SENIOR DEPUTY PRESIDENT: It starts coming back to me now. So what do you say was the nature of the submissions you made in that case?

PN959

MR NEILSON: Well, we said that, we made a submission similar to Mr Moir's insofar as the two issues were linked, the agreement and the award, and that the Commission could have regard to the award in its determination of the dispute. What we said, which is different to Mr Moir, was that we submitted that the terms of the award did not permit a transfer from one shift to the other without the consent of the employee who it was - - -

PN960

THE SENIOR DEPUTY PRESIDENT: Okay, and that's what you're referring to.

PN961

MR NEILSON: And that's the distinction between where we are. But the initial submission - - -

PN962

THE SENIOR DEPUTY PRESIDENT: The other distinction here being that I've said no, it is a dispute over the application of the agreement.

PN963

MR NEILSON: That's correct, your Honour.

PN964

THE SENIOR DEPUTY PRESIDENT: And therefore since this is to be read in conjunction with the award, the award does come in to play, but what you're saying is that you made submissions on that occasion in relation to the operation of 4.1.

PN965

MR NEILSON: That's correct, your Honour, yes, and I can - it was in relation to 4.1. It was in relation to the ordinary hours of work clause, which is part 6 of the award.

PN966

THE SENIOR DEPUTY PRESIDENT: But in a way, I mean, did I ever have to deal with that in that prior matter? You see, having said no, it wasn't a dispute over the application of the agreement, but a dispute over the award, we never actually got on to - or what does the award clause actually mean.

PN967

MR NEILSON: No, you didn't, your Honour, that's right.

PN968

THE SENIOR DEPUTY PRESIDENT: So now that you've got the memory running again, so what was the submission that you were referring me back to?

PN969

MR NEILSON: Your Honour, are you talking about our submission in the previous proceeding?

PN970

THE SENIOR DEPUTY PRESIDENT: No, no. You said you'd previously made submissions on that and you don't need to repeat them.

PN971

MR NEILSON: We purposely made submissions because in the jurisdictional hearing, Mr Mead had attempted to paint this issue as being similar to the previous issue that we'd agitated and that's what I meant. In relation to the question of whether or not the award permits such a transfer, we would request leave of the Commission to put on something short in writing very quickly in relation to that question if your Honour deems it to have been of some assistance and relevance in the proceedings.

PN972

THE SENIOR DEPUTY PRESIDENT: Yes, okay.

PN973

MR NEILSON: Your Honour, Mr Moir, for the company, made some issue about whether or not the remanufacturing work was of a similar nature to the work that was currently being undertaken by employees at Tristar prior to it losing its contracts. That submission, your Honour, is predicated on the basis that the work that employees at Tristar, or the work that employees at Tristar were performing was at a level of C12 and that we say is clearly inconsistent with exhibit AM1, which of course sets out the various classifications.

PN974

The remanufacturing work, even if you accept the submissions of Mr Moir, is only similar for employees who are engaged or were engaged within classifications of C12 and perhaps below. It is not of any relevance and it is not of any similar nature to those employees engaged in C11 and above. So therefore applying the submissions of Mr Moir in relation to the similar nature of the work, and that being that supporting the proposition that the employees should be directed, even if the Commission is against us, the only employees that we say that can be transferred are in fact employees who were previously engaged in C12 positions, not those other employees in the other classifications.

PN975

Now, your Honour, Mr Moir, in his submissions, made some observations of the terms of the agreement and he submitted that - and of course you will correct me if I'm wrong - that the agreement, that what the union was attempting to do when reading appendix 6 on its own was isolate a particular clause and not read the operation of that clause in its context and the context being the entire agreement. We say that what Mr Moir has in fact done is in fact do the very thing that he criticised the union, of itself, doing, and that is that it is read clauses in isolation without reference to the operation of the agreement and a classic example of that is the example that he gave at clause 11.4 when he cited, of course, alteration of hours of work and also a transfer of other employees to other work or locations.

PN976

That clause, when read in context of the entire agreement, is limited by the operation of appendix 6 which deals with redeployment of employees who are affected by redundancy if they are engaged in the Forge. So if there is a determination by the company that an employee in the Forge is redundant, the company is entitled to consider, pursuant to appendix 6, a redeployment to a position outside of the Forge. That then activates clause 11.4 which mandates that discussions shall occur about such a change and therefore there is no support to be found for the proposition that significant effects in clause 11.4 enables a general transfer of employees the only support in the agreement is in fact found that clause 11.4 is limited by appendix 6.

PN977

What Mr Moir is effectively saying is that there's nowhere really in the agreement that generally says, well, the company can do what they intend to do. Effectively, the agreement is silent on the issue, but he's still attempting to rely upon 11.4 in circumstances where we say it's operation is clearly defined and limited by the operation of appendix 6. That approach, we say, is consistent with his outline of submissions that in interpreting the agreement, each clause must be considered in the context of the entire agreement. 11.4 is clearly limited by appendix 6, and that, we say, is also consistent with the other provisions of the agreement that he cited.

PN978

Now, paragraph 2.1, which talks about the objectives of the agreement to maintain employment security of its employees, there is no security in Tristar's employment at the moment for those employees who remain engaged. Tristar clearly said that they don't have any contracts for the work that they're currently undertaking. How can it be realistically said that the employees are being given security in employment in circumstances where Tristar have no customers for their work, they have no projected sales for their work, and realistically, even if you take into account the attempts to secure work in China and India, as Mr Misra said, it needs to be kept in mind that Tristar have been attempting to secure that work for three years, and as Mr Misra said, nothing has ever come of it.

PN979

So how can it be logically said with a straight face that these employees at Tristar have some form of job security and that the actions of Tristar in directing them to undertake alternative work, such alternative work of course promote customers, is in fact maintaining the integrity of the agreement by offering to these employees job security? Clearly we say that that is an unnecessary and impermissible gloss and mischaracterisation of all of the evidence that has been put on in these proceedings.

PN980

Now, the other point that Mr Moir went to in his submissions was that - and I've already highlighted clause 11 and Mr Moir is attempting to demonstrate clauses in the agreement in support of his approach - the other clause that was referred to in 11.4 was, Alteration to Hours of Work, and it is submitted that that supported the approach of allowing a transfer of shifts. We say clearly, and we don't necessarily accept that the award permits such an arrangement to occur, but alterations of hours of work usually includes a variation to the spread of hours as it's defined in 6.1.(c) between 6 am and 6 pm. That is the ordinary hours that are undertaken pursuant to the Metals Award. And there is usually provision in the award for agreement to be reached on a variation to those spread of hours of one hour at either end. That we say clearly is what is envisaged by the term, alteration of hours of work, and let's keep in mind what the words, alteration of hours of work means in the context in which it appears.

PN981

All it says is that there will be discussions about alterations of hours of work. Nowhere in the clause does it say that Tristar can alter hours of work. So clearly Mr Moir, in attempting to rely upon clause 11.4, is attempting to read into the definition of significant effects, as including words to the effect of, "and Tristar is permitted to do such conduct." Clearly they're not and clearly the agreement does not permit them to do so, otherwise the agreement would have made express reference to such an ability.

PN982

The fact that the agreement makes absolutely no reference to the alteration of the hours of work, the fact that the agreement makes no reference to an ability to transfer to other areas, apart from appendix 6, leads to the ultimate conclusion that Tristar do not possess such a right. The other points that Mr Moir referred to was that the Amcor decision has some relevance in these proceedings. The Commission, in determining this issue, we say, must do so on the words of the agreement as they appear and must do so having regard to those words alone. General propositions about when a redundancy occurs and whether or not such redundancies are unfair, we say are wholly and generally irrelevant for the purposes of these proceedings.

PN983

Yes, we did cite the definition as were cited by Bray, CJ in the Adelaide Milk case which is of course the famous case on the question of redundancy, because that decision and the quote that is generally referred to when citing that decision, is wholly consistent with the terms of clause 21.1 which defines that where the company has made a definite decision that it no longer wishes the job to be performed by anyone. That, we say, is consistent with the words of his Honour in that particular decision and references to the Amcor decision and to the decision in Jones v The Department of Energy and Minerals is not necessarily of great assistance to the Commission in determining this dispute which is confined to whether or not the agreement permits the conduct that Tristar are seeking to undertake to occur.

PN984

Now, one of the other points that Mr Moir sought to go to was that these employees should get on with the job and that these employees effectively have been sitting around and effectively tried to assert that the employees were doing something that was otherwise contemplated by the agreement. The agreement itself provides for a status quo procedure during times of dispute. The company, to its credit, although not liking it, has observed that status quo. They have complied with the terms of the agreement and have done no more and no less.

PN985

The employees, for their part, have complied with the agreement and have done no more and no less. No criticisms can be made of the employees on that front and such criticisms that were sought to be advanced should not influence the Commission's thinking on this point. Now, we made some submissions in relation to the operation of clause 4.1 and we continue to rely upon them. Now, the last point that I wanted to make and it was in conclusion to Mr Moir's submission and it's a little bit disjointed from my end, is that Mr Moir effectively referred to clause 11.4 and the like as being some form of exhaustive statement and he criticised the union for asserting that appendix 6 is an exhaustive statement, I think, were the words that he used. He said, well, the union's trying to rely upon appendix 6 as establishing what it wants to achieve and appendix 6 and those key words are some form of exhaustive statement.

PN986

The reason why we say it's an exhaustive statement is because it's the only statement in the agreement and so how can it be anything other than the exhaustive statement of the circumstances of which Tristar can transfer the employees or direct them to undertake different work, if there are no other words in the agreement to permit it to occur. Appendix 6 is the exhaustive statement on that front and we continue to rely upon it.

PN987

Now, the last point that I make is that there was some assertion over our objection that the 1999 agreement contained similar words to that of the 2003 agreement. We say that's clearly not relevant because the framers of the 2003 agreement are different to the framers of the 1999 agreement and no assistance can be gained by reviewing the history of this particular agreement in these circumstances on the basis that it was a totally different company operating under totally different management which negotiated the 2003 agreement as opposed to the 1999 agreement which was in fact negotiated by TRW Incorporated.

PN988

In fact, it could also be suggested that the 2001 agreement was also negotiated by various different parties, both from the company's point of view, and also from the union's point of view. The history of these particular clauses therefore we say do not assist the Commission in its determination of this matter.

PN989

THE SENIOR DEPUTY PRESIDENT: I am familiar with the making of the 2003 agreement, since I conciliated the making thereof.

PN990

MR NEILSON: Yes. Your Honour, the last point is that Mr Moir sought to criticise the submission that we had made about the classification structure and he said, well, there's no evidence of what the union is asserting about the existence of this classification structure. In our submission there is evidence and its evidence before the Commission and it's evidence that was put in before the Commission by Tristar itself and that is exhibit AM1.

PN991

AM1 clearly has, as it's set out in the class of employees, its own peculiar way of classifying employees and we highlighted the inconsistencies with that. We say that what the inconsistencies highlight is not what Mr Misra attempted to say, as some form of innocent mistake, that he'll go back and correct. What it highlights is that there is a unique classification structure at Tristar and it's been reflected in exhibit AM1 and when confronted with the situation, Mr Misra realised the situation that he was in and sought to avert away from accepting that there is in fact a unique classification structure at Tristar and Tristar are not permitted to direct employees to perform work outside of their usual jobs, which, on Mr Misra's evidence, are no longer required. Those are our submissions, your Honour.

PN992

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Wallace? Okay. Thank you, gentlemen. You'll not e surprised that the Commission intends to reserve the decision on this matter and I propose therefore to adjourn.

<ADJOURNED INDEFINITELY [4.37PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

AMIT KUMAR MISRA, RECALLED ON FORMER OATH PN193
CROSS-EXAMINATION BY MR NEILSON PN193
RE-EXAMINATION BY MR MOIR PN653
THE WITNESS WITHDREW PN672
MARTIN SCHUTZ, RECALLED AND RE-AFFIRMED PN681
FURTHER EXAMINATION BY MR NEILSON PN681
EXHIBIT #A3 - STATEMENT OF MARTIN SCHUTZ DATED 21/11/2006 PN686
CROSS-EXAMINATION BY MR MOIR PN700
THE WITNESS WITHDREW PN812