C2005/5203, Transcript of Proceedings [2006] AIRCTrans 378 (16 March 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 14409-1

SENIOR DEPUTY PRESIDENT ACTON

C2005/5203

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
AND
TOYOTA MOTOR CORPORATION LTD
s.170LW - Application for settlement of dispute (certification of agreement)
(C2005/5203)

MELBOURNE

9.49AM, THURSDAY, 02 MARCH 2006

Continued from 10/02/2006

Hearing continuing

PN6140

THE SENIOR DEPUTY PRESIDENT: Mr Skene.

PN6141

MR SKENE: Welcome to the last day of the Toyota case we hope, your Honour.

PN6142

THE SENIOR DEPUTY PRESIDENT: Right.

PN6143

MR SKENE: We hope.

PN6144

THE SENIOR DEPUTY PRESIDENT: You haven't settled have you by any chance?

PN6145

MR SKENE: That might be the only way that we get to a last day. In any event, there's just one preliminary issue. My friend and I since we were last before you had some discussions about the calculation of the vehicle benefit, you will recall that that has been vexed. I will just hand you up a document. My friend and I have agreed to tender this by consent on the basis that there's an acknowledgement that the value in paragraph 1(a), the $18,596 is a notional value and the union doesn't make concessions about the assumptions that underlie it although it acknowledges that the methodology set out in paragraph (b) is how Toyota applies it.

PN6146

The second rider is that there are assumptions in paragraph 2(b)(ii) which concerns the valuation of the fuel and of course depending on what an employee does those assumptions may be accurate or not accurate. So on that basis, your Honour, we've resolved that issue to our satisfaction. I think both of us will have submissions to make about what you can make of all of that for present purposes but in any event it avoids the need to call the witness in relation to it.

PN6147

THE SENIOR DEPUTY PRESIDENT: Okay.

EXHIBIT #TOYOTA16 CALCULATION OF VEHICLE BENEFIT

PN6148

MR SKENE: Yes, thank you, your Honour. So with that, your Honour, unless there's anything else, we'll call Garry Elkington.

<GARRY ELKINGTON, SWORN [9.51AM]
<EXAMINATION-IN-CHIEF BY MR SKENE

PN6149

MR SKENE: Would you place state your name and occupation for the record?
---Garry Elkington, I am the Plant Manager for Toyota Motor Corporation for the Power Train.

PN6150

Have you prepared a statement in relation to these proceedings?---Yes, I have.

PN6151

Do you have a copy of it with you?---I have one in front here.

PN6152

Do you have any changes to that statement?---Yes, I do have some changes, yes.

PN6153

Perhaps if I could just pass this document up to her Honour. In the statement the name Garry has been changed to include 2 r's, is that your correct name?---That's correct.

PN6154

If I could take you to paragraph 6, in the second last line of the main paragraph it says that you've held the position of assistant manager and that's crossed out and replaced with section manager. Why did you make that change?---That change is because that's what I was referred to at the time.

PN6155

In the first dot point it says that you held the position of department manager from 1994 to 1999. What should that read?---98 to 99.

PN6156

If I take you to paragraph 25 - - -

PN6157

THE SENIOR DEPUTY PRESIDENT: Sorry, what paragraph was that,
Mr Skene?

PN6158

MR SKENE: That was the first dot point in paragraph 6, your Honour. The 1994 should read 98.

PN6159

THE SENIOR DEPUTY PRESIDENT: So 1984 to 99?

PN6160

MR SKENE: 1998 to 1999.

PN6161

THE SENIOR DEPUTY PRESIDENT: Yes, okay, 1998 to 1999. Yes.

**** GARRY ELKINGTON XN MR SKENE
PN6162

MR SKENE: Yes. In paragraph 25, Mr Ebenwaldner, a range of changes are marked in your statement. Please explain why wish to change that evidence?
---When I actually wrote this statement originally that was my understanding of the situation and what has happened since then is it's come to my attention that some requests of mine that were made directly to the section manager were not actually implemented and so therefore I actually brought both parties, that is Gary Ebenwaldner and Mark Winszar who's his section manager in the same room to ask them question in regard to what currently actually takes place and my understanding was incorrect at the time so therefore I must adjust the statement.

PN6163

And with the changes set out in those dot points under paragraph 25 is your statement now true and correct?---That's correct, yes.

EXHIBIT #TOYOTA17 STATEMENT OF MR ELKINGTON

PN6164

MR SKENE: Thank you, your Honour.

PN6165

MR ADDISON: Your Honour, can I just foreshadow with those changes, particularly paragraph 25, I will seek an adjournment after evidence-in-chief if that's appropriate.

PN6166

MR SKENE: Mr Elkington, we have heard some evidence about whether the section manager role is different from the assistant manager role. How do you see the differences between those positions if any?---To me there's a distinct difference in the two in relation to responsibility and accountability, particularly accountability.

PN6167

How do your expectations of the general foreperson role versus the assistant manager or section manager role differ?---The main one would be the day to day running of the operation, particularly in regard maintenance, that I expect that the general foreperson would be the one that's actually controlling those day to day activities whereas the section manager themselves would be looking at more long term strategic issues that need to be addressed such as long term business plans.

PN6168

And what would you expect an assistant manager to do?---Mostly that would be the long term business plans, the overall big picture. They're responsible to a lot of the senior management, particularly myself. I have to bounce a lot of proposal drafts through the section manager which I would possibly not be doing in regard to the general foreman because they're actually associated with the day to day running. If you talk long term we're talking perhaps five, 10 years, our next model for example.

**** GARRY ELKINGTON XN MR SKENE
PN6169

Do you know what total production management is?---That's a TPM program. It's an initiative that comes directly from TMC in Japan and what that is, is a process we go through in regard to a kaizen activity in generating improvements to particularly our lines and our customer facility.

PN6170

And what is the difference of participation of GF versus an assistant manager in that activity?---In this particular case, for example I spent a week in Japan where I actually had to work on the lines handling the products as a manager and some of the processes that they instigated there, which is a TPM program, I was then instructed to actually implement within my own plant. So I brought that initiative back. I would then request my section manager to support that so I would overview the concept and then he would actually put the plan together as to how that would take place. The main reason for that is that we need to buy in the production personnel as well as the maintenance personnel in this program.

PN6171

Can you provide an example of the different levels of activity of a GF versus an assistant manager or section manager in your areas of responsibility, a recent example of how those differences are articulated in practice?---If you take a look at the day to day running of the operation, for example, as a group leader or a general foreman or a senior general foreman, they're running the day to day activities. For example, they would be ensuring that the personnel are available to do the jobs that the absenteeism is corrected if necessary but also to ensure that the resources themselves are put to work on a day to day basis, minute by minute, hour by hour. Whereas the section manager would basically be doing more the long term strategic plans and attending the meetings that would be, for example, big picture site wide. So there are a number of current what are called ALTs, action learning teams, and there are set responsibilities for the general forepersons and there are set responsibilities for the section managers. For example, the general forepersons would be dealing with the consistent across the site in regard, for example, applying the award. Whereas the section managers will be dealing with the long term what we wish to do, for example, in the maintenance department in five years time, how do we see it operating and those plans we put together, those drafts we put together for overviews for example - - -

PN6172

What is the PAD area or PAD area?---The PAD area is just a section, it's a large tarmac area that we have that's to the right of our - left of our plant as you go in and that's where we in actual fact sometimes use, is referred to as the graveyard where all the old equipment is actually positioned and also a lot of our containers are held. We have a lot of stock that comes from Japan in ..... form, so we have to use it, empty these containers and bring that product into our lines to assemble our engines.

**** GARRY ELKINGTON XN MR SKENE
PN6173

How in relation to that area have the responsibilities of the GF or SGF and assistant manager differed?---An example would be we have a walkabout by senior management so that would be directors as well as all the senior plant staff that actually go round and do a housekeeping audit. For example, we have a meeting on 7.30 on a Friday morning. On occasion those meetings are actually a walk around the plant where the managers responsible for that plant area will actually go to it and explain the 4S condition. So for example our responsibility is this large tarmacked area and quite frankly it looks like a graveyard, there's a lot of equipment facility in there. I will get instructed to clean it up. So I then go to, for example, my section manager and say to him that we need to have an exercise within the next week because the next audit will come through and we must clean it up. So I would request my section manager to make that happen. He would then pass that down to the general foreperson, or in some cases to the group leaders to start that arrangement.

PN6174

And when you say pass down to the general foreperson, does the senior general foreperson have any different responsibility in relation to an activity like that from a general foreperson?---What it would be is that the section manager would get the request from me, from say, for example, 10 o'clock meeting. He would leave that meeting and then make the request of his subordinates to make the job happen.

PN6175

And his subordinates in this case are?---Would be Gary or it could be in his absence, it could be the group leaders in regards to setting up a program to start that process to happen, so it's actually the doers.

PN6176

Yes. You talked a moment ago about long term versus day to day, how do you see the overlap between the assistant manager duties and the GF or SGF, focus first on the SGF, overlap between the assistant manager and the SGF?

PN6177

MR ADDISON: Your Honour, I object to that question. My friend makes assumptions. There is no evidence that there is an overlap from this witness. He wasn't even asked that question. It's a bit leading too so I object.

PN6178

MR SKENE: How do you see is not a leading question, your Honour. If he says I see it as no overlap he can say that.

PN6179

THE SENIOR DEPUTY PRESIDENT: Perhaps you might ask the first question.

**** GARRY ELKINGTON XN MR SKENE
PN6180

MR SKENE: Is there any overlap between the assistant manager and the SGF?
---There has to be an overlap on the basis that for example in the absence of an SGF or annual leave or long service leave then the assistant manager would probably fulfil that role. If it is greater than two weeks then there will be perhaps a temporary replacement of that SGF. So there must be an understanding from the section manager's point of view of what the senior general foreperson does on a daily basis, you must understand that. So there is an overlap. It's like two parallel lines I would suggest, this is the section manager, this is the senior SGF and it looks like this - sorry, the other way round. So there's a clear area above the SGF that is performed by the section manager but there is an overlap because the section manager does perform some of the tasks, the senior GF or GF.

PN6181

And how would you see that overlap being for an assistant manager as opposed to a section manager?---Well, they're basically the same. There's some confusion. In our plant, the power train plant, we refer to our managers, our first level, C level, old level, as section managers but some of the plants refer to them as assistant managers. For example, when I was a manager first off I was a section manager. We still refer to, for example, the production manager first level, he's a section manager. So they're both the same as far as I'm concerned.

PN6182

In the part of the role that sits above the SGF, the part of the section manager role that sits above the SGF and the evidence you just gave, what are the types of work that the section manager does in that role that is outside the overlap that's just for the section manager or assistant manager?---Well, there are a number of meetings that are actually attended by, as I mentioned before, the section manager such as the long term strategic plan for maintenance for the future. For example, they would attend those meetings, there would be discussion to the fact that we're just about to establish our new line within our plant which is the V6 cylinder head - sorry, V6 engine line and we're looking at in regard to how we would manage that for production purposes, where the label will come from, from production, but also from the maintenance. So there will be discussions in regard to how we will manage that, will we have to re-employ new people, for example, further maintenance personnel, or do we run with what we currently have. Those sort of decisions will be made, it's more long term.

PN6183

What types of work are in the other part of the role if it's shared?---Well, if it was shared it would be the overlap. For example, in the absence of a senior GF the section manager would actually be doing that particular role, so they must understand what the day to day running activity of that plant is so he's quite capable of doing it. He may not be able to do it as well as a senior GF but certainly he'd understand the parameters.

**** GARRY ELKINGTON XN MR SKENE
PN6184

You explain in your statements and things that you see the assistant manager doing that the SGF or GF doesn't do, how important is it that the assistant manager or section manager performs those things to meet the requirements of their role?---There's a direct link between, for example, we've just established a department manager within our plant that's above the section manager, prior to that the section manager was a very important link to me in relation to the day to day running. Obviously my strategic plans, for example, my balance scorecard is not only for the year it's also further long term. So I would have to bounce that off directly my section manager who would then use his resources to confirm the viability of some of my ideas.

PN6185

So how more or less important is it that the assistant manager or section manager does that section manager only part of the role as opposed to the overlap part of the role?---We can get away with the day to day running but for example kaizen activity within the plant, within the maintenance area for our power train we obviously have day to day problems and they're actually addressed either on a bandaid basis or they're actually root cause counter measures. Part of the process for the section manager is the kaizen activity which is something that is proactive rather than reactive. So he plays a very important in regard that kind of activity being implemented. It can be just simply an improvement activity for a machine for example, or it could be improvement to our processes, our systems, our HR for example, our human relations.

PN6186

Would it be acceptable to you if the assistant manager was only performing that, the section manager was only performing that overlap component of their role and not the other part?---No, it couldn't run. Sorry, it couldn't run.

PN6187

So what impact would that have in the annual review of the manager if any?---The annual review of the manager?

PN6188

Of the section manager possibly performing that stuff?---That's where it's a difference between an award staff member and a staff member. We have a balance scorecard and also a PDP process which is an assessment process. What happens is that there are specific targets that are one is set by me and then rolled down to my next level, which at this point we're talking here would be the section manager, he would set targets which we'd then agree upon and if those targets are not achieved at the end of the year it directly affects his remuneration.

PN6189

You have given some evidence about how the section manager assists you to attest the viability of your ideas, how is that different from the level of support that you get from a GF or an SGF in your area?---That's a little delicate question. Some of the things that I will look at, for example, is the viability of our operation. We have very strict controls. It's based on engine cost for example. So I have to make decisions as to whether certain of my lines, for example, would close and we'd buy the product directly from TMC or from overseas based on cost. And on the basis of that I might ask the section manager in this case, okay, if we lose a number of lines because the product will come in ....., as I mentioned earlier, it means that one, we would not the resources we currently have which would have a direct bearing in regard what resources we have in maintenance. So I put that to him in regard the workload for the maintenance department, could for example, we do with less of the head count in our operation. Our biggest cost factor for our engine is, for example, indirect cost which is all our staff members and particularly our maintenance. So that's a very delicate thing to ask in relation to we would actually remove some of our, for example, maintenance from our process. There will be obviously positions in other areas of the plant, but he would actually delicately put that out to find out how that could be actually implemented.

**** GARRY ELKINGTON XN MR SKENE
PN6190

In this case it's been claimed that SGFs or GFs provide the same level of support as an assistant manager or section manager, what are your observations about that?---There are many similarities in regard what they perform, whether it's an SGF or a GF. I still have some reservations of the difference between those two than other levels, but - sorry, can I have the question again?

PN6191

SGFs and GFs claim they provide the same level of support to you as a section manager?---Okay.

PN6192

What are your observations about that?---No, there is a distinct difference. I have to rely on my SGFs in a certain manner and also my section managers in another. So to me I cannot do with either. I can't take them both out because they have independent roles to play. There are very specific areas of responsibilities and accountability they both have.

PN6193

Mr Ebenwaldner has said that he has the knowledge and experience to perform the role of assistant manager or section manager, what would you say to that?
---Gary has a vast amount of experience within our plant. We've just done an interview process for a department manager of which I advised him to apply. The role itself is - sorry, can you give me the question again?

PN6194

I asked you to comment on a claim that Mr Ebenwaldner has the knowledge and experience to perform the role of assistant manager or section manager?---Okay, I need to be more specific. Yes, he does have the experience that could give him a certain section of the role that we require but there are other aspects that he would not be familiar with and there are other aspects that he does not have within his expertise and his knowledge.

PN6195

Have you considered Mr Ebenwaldner's suitability for promotion?---Yes, I have. That was in relation to the most recent opportunity which was the implementation of a department manager for our particular plant overseeing a section manager and the maintenance operation.

PN6196

I will just pass the witness a document. You have just been passed a document, can you identify that document?---Yes, this document is the one page report which was part of the interview process for the department manager. This is actually Gary's one page report.

PN6197

And if I turn over the page what's that document?---That document is all the candidates have the same document. This document is in regard our response to Gary's interview and also a response to his one page report.

**** GARRY ELKINGTON XN MR SKENE
PN6198

If I can just bring you back to the first part, the one page report, which part of that document did you complete and which part did Gary complete?---I didn't complete this. I actually gave all the candidates an overview of what I would like to see on a one page report. This is common practice within Toyota. For most activities we actually generate this one page to get an understanding very quickly of what the issues are, what the objective of the paper is, what the issues are, what the concerns would be, how would we actually counter measure those concerns and with a conclusion.

PN6199

So what of the information here, the headings and the contents of the boxes, what did the document look like when it was given to Mr Ebenwaldner?---So all it would have would be the main title. The objective will be actually stationed there, strategy for the successful utilisation of a consolidated engineering and maintenance within power train. The next parts of it will be blank. There's actually a sheet that I handed to them which says please explain the current situation, give your ideas, an organisation, there is also communication, the strategy to make the improvement, the timing of all this and then a conclusion. So I would have given them the blank basically and then to fill out.

PN6200

So the information inside the boxes, current situation, organisation, strategy, timing and conclusion, who completed that information?---That's Gary's contribution.

PN6201

Under the organisation box please explain that structure that was being proposed as you understand it?---Well, that's Gary's thoughts in regard how best to reorganise our current structure to get advantage and be able to support his strategies. So that's saying that there should be a department manager, which there wasn't at that particular time. There's also a suggestion that we should have an assistant manager in maintenance and an engineering assistant manager/supervisor for engineering, beneath that four group leaders and then we've got 16 members of casting, engine plant, engineering services.

PN6202

How many GFs or SGFs are there in that structure?---This structure, no. Sorry, potentially one, he's got assistant manager/supervisor. That's engineering. There could possibly be one there.

PN6203

What interviews or discussions did you have with Mr Ebenwaldner about this document?---This is part of the interview process. Normal interview process would be there would be a small panel. The candidate would come in. We would interview. Because of the nature of what I was requesting was a department managership, that's two levels, for example above Gary, that I asked for a one page report to be generated so I could understand his conceptual thinking, which I would expect from an assistant manager, on how he would improve engineering and maintenance services because as department manager there is dual responsibility. It is not just for maintenance, it is for engineering also, so how to bring them together to work the best, to get the best for our future.

**** GARRY ELKINGTON XN MR SKENE
PN6204

What conclusions did you reach about Mr Ebenwaldner's suitability for that role?
---There was a number of items that came out of the interview as well as the one page report. In regard to the one page report it was simplistic but obviously there was a thorough understanding of the maintenance point of view. But in this particular case we were looking for more of a teamwork approach, a more collaborative approach with our personnel, whereas from the interview and the one page it was more of a directive approach that he would actually apply.

PN6205

And where are those observations recorded?---There's the sheet here, there's the right hand side we've got the others there. Each one of these have some comment in regard the items.

PN6206

Your Honour, I seek to tender those documents.

EXHIBIT #TOYOTA18 ENGINEERING AND MAINTENANCE CONSOLIDATION DOCUMENT

PN6207

MR SKENE: Is there a 17, your Honour?

PN6208

THE SENIOR DEPUTY PRESIDENT: It's Mr Elkington's statement.

PN6209

MR SKENE: I see, I've written it down as 16, I misheard you.

PN6210

What discussions have you had with Mr Ebenwaldner, in relation to development items to make him more suitable for promotion, if any?---There's been a couple of opportunities over the last 12 months of which I have spoken to Gary in regard future opportunities for him. One of the recent ones was in relation to the ESI proposal for our stores, when I spoke to him in relation to how to utilise that for example to make the profile stronger so that people would have further considerations for him for advancement.

PN6211

When did those discussions occur?---It would have been probably August, September. Certainly past the second quarter of last year.

PN6212

Last year?---Last year.

PN6213

Mr Ebenwaldner has indicated in his evidence that he does more than what
Mr Maunder does. Based on your contact with Mr Maunder and Mr Ebenwaldner respectively what would you say in response to that?---To say he does more that's very hard to judge on the basis that if you look at an individual workload they are distinctly different. The day to day running of a plant is quite stressful, sometimes very difficult. We're dealing with difficult situations, difficult people, so yes, if you talk about a workload point of view you could say he's doing more. But in regard how that affects our operation there is distinct differences between the two, still that day to day running and that long term strategic.

**** GARRY ELKINGTON XN MR SKENE
PN6214

Mr Ebenwaldner says that he deals directly with you to have decisions made?---In some cases that is the case but what normally happens is that I've already made requests, for example, of the section manager for certain functions to take place. I then determine they have not taken place so I will then talk to my section manager as to what is the schedule for these items. I have been told in the past that they haven't even been started. It has been requested of the general forepersons and the group leaders to commence but they have not and in those cases I've actually approached Gary personally in regard completing those tasks.

PN6215

Why do you speak to the section manager if Mr Ebenwaldner approaches you directly about it?---The reason is that there is a hierarchy in regard to the system and I have to ensure for example that my section manager is kept in the loop. There have to be some controls and some overseeing what's actually taking place. For example, considerations of a long term plan may be affected by something that happens on a day to day.

PN6216

I would just ask to pass the witness a document AMWU17, your Honour. Have you seen that document before?---Yes, I have.

PN6217

What is it?---This is a mine map of tasks that are being performed currently in the maintenance department.

PN6218

Mr Ebenwaldner was prepared due to his high work rate?---No, that's not my understanding. My understanding is that I requested both of the section manager and the senior GF to write up for me their current issues. There is an issue or has been an issue in regard to the interaction between my senior GF and my section manager. So I asked them to list the issue that they currently go through. I got two lists, one was from Gary which is about 10 very brief items and I got two pages from the section manager in regard to their issues. It appeared very clearly that there's a communication problem and an interaction problem between the two individuals.

PN6219

So what was the purpose of this document in resolving that?---The purpose was really to understand what the issues were on a business level so that I could utilise that to look at the interaction communication difficulties that were currently being going through.

PN6220

What did those communication difficulties concern in relation to their responsibilities?---Well, basically the understanding of the importance of certain requests. For example, I mentioned earlier I think the PAD, cleaning up the PAD. That was an issue which I could see. I was getting pressure from my own management a week later that function is not being performed. I had asked my section manager to ensure it took place. He informed me he had told the relevant people, unfortunately that job is still not being carried out.

**** GARRY ELKINGTON XN MR SKENE
PN6221

Could I just pass you a copy of Mr Ebenwaldner's statement, AMWU14, if you would just bear with me. Sorry, it's not 14, it's the first statement, AMWU14, yes. There are a series of attachments to that document. Can I just ask you to turn to attachment 3 which is headed Capital Expenditure Requisition. Do you have that document? It's AMWU15, I apologise. In the middle box at the bottom of the page there are some words, "Department manager", some apparent signatures below that?---Mm.

PN6222

Can you identify those signatures?---Yes, department manager, the top left hand side is Mark Maunder's. The middle signature is the production department manager, Jack Hobbs and the right hand side bottom, that's our Japanese coordinator, Mike Nusoir.

PN6223

What's the process to approve this that requires those signatures?---The process is obviously the CER or capital expenditure request is raised, it is written out. At the bottom left hand side, the first box there talks about is raised by, in this case by Gary, puts his signature and then dated. The next part of the process is that it goes to the section manager before it goes to either myself or to, in this case, Jack Hobbs. Jack Hobbs signature there is on the basis that I was absent for two weeks so he has the authority to actually sign off. Then it goes to the Japanese coordinator for also sign off. There's checks and balances in this as well.

PN6224

What expectation do you have that the section manager, Mr Maunder, have participated in the process to assess the application?---He is the first person I would see on receiving one of these. For example, if I receive it without his signature, all right, it would go immediately to him. If I have received it my assumption would be that he's actually read and agreed with these items on this CER. If I have any questions I would go back to him for confirmation.

PN6225

There's evidence that two employees Sharon Isaccs and Dianne Aquilina have authority delegated to approve M1 purchasing. Do you understand the question?
---Yes, that's correct.

PN6226

Who are Sharon Isaccs and Dianne Aquilina?---Dianne Aquilina is a clerk that works directly for Jack Hobbs in the production area and Sharon Isaccs works for basically the engineering and maintenance area, Mark Maunder.

PN6227

And why is that those employees have M1 authority delegated to them?---That's delegated directly by myself in regards Sharon Isaccs and by the department manager, Jack Hobbs that requested of me that authority.

**** GARRY ELKINGTON XN MR SKENE
PN6228

And why has that been done?---The reason for that is there are so many purchasing reqs, requisitions for example that are raised on a daily basis. This goes back to in actual fact our project when for example I was receiving between 50 and 60 of these per day to process through SAP. So what we did was delegate the responsibility down. We put the checks and balances in there and gave the authority for both Sharon and Dianne to actually raise these up to $1000.

PN6229

No further questions, your Honour.

PN6230

MR ADDISON: Your Honour, I would seek a brief adjournment if I could.

PN6231

THE SENIOR DEPUTY PRESIDENT: How long do you need, Mr Addison?

PN6232

MR ADDISON: 15 minutes, your Honour.

PN6233

THE SENIOR DEPUTY PRESIDENT: I will adjourn until quarter to 11.

<SHORT ADJOURNMENT [10.27AM]
<RESUMED [11.03AM]

PN6234

THE SENIOR DEPUTY PRESIDENT: Mr Addison.

PN6235

MR ADDISON: Thanks, your Honour.

<CROSS-EXAMINATION BY MR ADDISON

PN6236

MR ADDISON: Garry, you said in your evidence-in-chief this morning and in your amended witness statement, which I seem to have misplaced, that - bear with me - that you were a technical officer and then a section manager?---Yes, that's correct, yes.

PN6237

And you were a section manager in 1998 as I understand the evidence?---Yes, yes.

PN6238

That's as I read paragraph 6. I may be incorrect there but as I read it you say you progressed to team leader, group leader, general foreperson, technical officer and then a section manager in 1998. Was it 1998 that you became a section manager?---No, sorry, that is not correct, no.

PN6239

Okay, so that's a mistake, is it? When do you say you were a section manager, Garry?---That was prior to 98 so that would be the ending a section manager.

**** GARRY ELKINGTON XXN MR ADDISON
PN6240

Yes, but when did you begin?---So prior to that, 90.

PN6241

1990?---That was when I was in Japan with some training, yes.

PN6242

So you were a section manager for eight years, correct?---Approximately, yes.

PN6243

And then you became a department manager casting and engine production, power train and plant?---Correct.

PN6244

In 1998?---Mm.

PN6245

And you held that position for how long?---About a year.

PN6246

So it's a full 12 months out to 99, is it?---Yes, it would be, yes.

PN6247

And then from 99 to 2002 you were department manager engine and maintenance. Now, do I assume that the first dot point is a production based role and the second dot point is a maintenance based position?---Maintenance and engineering, yes, the second one.

PN6248

And so the first dot point was production, was it, 1998 to 1999?---But I had the role there as also - yes, that's right. Sorry, yes, that's right.

PN6249

Okay. So in that first position you were responsible, one presumes, for the running of the line and in the second position you were responsible for the maintenance of the line?---Yes, that's correct. That was in the power train, yes, that's correct.

PN6250

Well, you have served all of your time in the power train, have you?---Beg your pardon?

PN6251

You have served all of your time in power train?---I have indeed.

PN6252

Yes, that's as I understood it. Now, there is a difference between section manager and assistant manager, isn't there?---No, I indicated earlier that's not the case from my point of view.

PN6253

Can the witness be shown the - sorry, I have only got one copy of this, it's the attachments to Mr Tainsh's witness statement, second witness statement. They were handed up separately you would recall, your Honour. They were supposed to be attached and they weren't and then we handed them up separately so they've been marked but I'm not sure, I think they have been AMWU - - -

**** GARRY ELKINGTON XXN MR ADDISON
PN6254

MR SKENE: AMWU3.

PN6255

MR ADDISON: Thank you very much. I am grateful to my friends. AMWU3 did you say? Could you just have a look - - -

PN6256

THE SENIOR DEPUTY PRESIDENT: Just before go on, I don't think it's part of my AMWU3.

PN6257

MR ADDISON: There should be, your Honour. They certainly were - - -

PN6258

THE SENIOR DEPUTY PRESIDENT: What attachment is it you're - - -

PN6259

MR ADDISON: I will grab Mr Tainsh's witness statement, your Honour. It's his second statement, Mr Tainsh's, AMWU3. It could be AMWU4, your Honour.

PN6260

THE SENIOR DEPUTY PRESIDENT: Yes, I think it might be. His second statement is AMWU4.

PN6261

MR ADDISON: Right.

PN6262

THE SENIOR DEPUTY PRESIDENT: And that seems to have attachments whereas AMWU3 which is his first statement does not have attachments.

PN6263

MR ADDISON: That's right. That's right.

PN6264

THE SENIOR DEPUTY PRESIDENT: Okay, yes.

PN6265

MR ADDISON: That's right. I am just trying to find it. I think it was paragraph 15, isn't it? Yes, paragraph 15 refers to attachments 1, 2, 3 and 4 but they weren't attached when they were filed, your Honour, and we handed them up as separate exhibits on the first day of evidence.

PN6266

THE SENIOR DEPUTY PRESIDENT: All right, they're attached now.

PN6267

MR ADDISON: Which is a life time ago.

PN6268

THE SENIOR DEPUTY PRESIDENT: Yes.

PN6269

MR ADDISON: Okay, I think we all have them now, don't we? You have copies of them?---Yes, I do indeed.

**** GARRY ELKINGTON XXN MR ADDISON
PN6270

Can I take you to the first document. The first document is paint department organisational structure dated 1 February 2000, have you got that?---Mm.

PN6271

You will see there that there are both assistant managers and section managers there. In fact there's a manager and the evidence is that the manager was the section manager and below that manager there is an assistant manager. Do you see that?---Yes.

PN6272

Can I take you to the next one, it's a bit clearer. Can I take you to the next one which is October 2000, do you have the section manager and an assistant manager, do you see that?---It's on the left hand side?

PN6273

It's on the left hand side?---Yes. Yes, I do, yes.

PN6274

They're two different positions, aren't they?---I can't comment on this paper. I have not seen this and I'm not familiar with the process. I would assume that within our operations that they're slightly different.

PN6275

In your evidence-in-chief this morning you said that there was a difference between a section manager and an assistant manager. You then later said they're the same but in your initial evidence you said there was a difference. Do you recall that?---I don't recall that, sorry. I was just indicating I believe they're both the same. Would you like me to elaborate?

PN6276

No, no, that's fine. Now, in terms of paragraph 10 of your witness statement, which I think you have got there, you then talk about the differences as you see them between an assistant manager and a senior general foreperson. You say:

PN6277

The differences are distinct and the main between the level of responsibility and accountability are attached to the positions.

PN6278

Yes?---Yes.

PN6279

You were shown during part of your evidence AMWU10 I think it was. Just bear with me. You should have a copy of it there. Which is the mine map. 10 or 16?

PN6280

MR SKENE: 17.

PN6281

MR ADDISON: 17, my apologies. Have you got that there?---Yes, I have.

**** GARRY ELKINGTON XXN MR ADDISON
PN6282

Now, I think you said in your evidence that you had raised issues with
Mr Ebenwaldner and Mr Maunder and that Mr Ebenwaldner and Mr Maunder had written to you in response to a query and then that then evolved into a meeting where this document was produced, yes?---That's correct.

PN6283

Now, that's contrary to the evidence that's been given by Mr Ebenwaldner in these proceedings. Mr Ebenwaldner's evidence is that this document was created directly from the meeting, that there were no previous correspondence leading to the development of the document, that in fact - if I am wrong the transcript will prove me wrong. But my recollection is that it's that and certainly my instructions are that there was a meeting, that Mr Ebenwaldner and Mr Maunder were doubling up on things, that there was a meeting between the three of you, Maunder, Ebenwaldner and yourself and this document was produced on a whiteboard. Do you recall that?---Yes, I do recall that produced on a whiteboard, yes.

PN6284

Now, is it possible that you are mistaken about the previous correspondence?
---No, I have documents that came from both Mark Maunder and Gary Ebenwaldner in relation my request about their interaction difficulties that clearly state these are the issues which then generated the need for a meeting whereby the whiteboard was used to raise the mine map matter.

PN6285

And the mine map matter breaks up functions between Mr Ebenwaldner and
Mr Maunder, doesn't it?---No, it doesn't actually. It raises all those functions but it also includes mine.

PN6286

Includes your functions, does it?---Yes, it does indeed.

PN6287

Yes. There was a follow up meeting prior to these proceedings or just after the witness statements in these proceedings were filed, that's correct, isn't it? These were ..... Mr Ebenwaldner and Mr Maunder?---Yes, that's correct, yes.

PN6288

And paragraph 25 of your witness statement reflects some of that discussion, doesn't it?---It reflects that discussion, yes.

PN6289

Mr Ebenwaldner has given evidence for instance that temporary labour is his domain, if I can put it in those terms. You would agree with that, wouldn't you?
---That's correct.

**** GARRY ELKINGTON XXN MR ADDISON
PN6290

Now, Mr Ebenwaldner has given evidence that you acknowledged that that was his responsibility and that he is responsible without reference to anybody else to bring in temporary labour. That is true, isn't it?---That is correct but there is a reason behind that.

PN6291

Well, I think you said in your witness statement temporary labour of less than 20 days duration. That's not correct, is it?---No, that is correct.

PN6292

Well, do you know how many temporary employees you currently have in power train maintenance?---It will vary from day to day, 10, 15, 20.

PN6293

Let me ask you this, do you know how many long term labour hire employees you currently have in power train?---I would suggest approximately three.

PN6294

Three, and do you know who they are?---One is Mark Windsor. There's another one on night shift, I can't recall his name.

PN6295

Yes?---And I can't recall the other one either.

PN6296

Now, the night shift person has been there for how long?---Probably two years - about a year, a year.

PN6297

May last year?---Sorry?

PN6298

May last year?---I can't recall that, no.

PN6299

Mr Ebenwaldner authorised that, didn't he?---He would have done at that time.

PN6300

Yes. The other person that you're trying to think about is the fitter from Skilled Engineering who has been there for four weeks, do you agree with that?---I can't comment, I don't know.

PN6301

You don't know. And Mr Ebenwaldner has authorised that?---That's correct.

PN6302

Yes?---On my authority.

PN6303

Well, I think your answer previously was without reference to anybody else
Mr Ebenwaldner can authorise temporary labour, that's correct, isn't it?---That's correct so within that function.

**** GARRY ELKINGTON XXN MR ADDISON
PN6304

Now, it's also true, isn't it, that prior to these proceedings Mr Ebenwaldner had authority to spend at the M1 and the M2 level?---That's correct.

PN6305

And you were aware that Mr Ebenwaldner was in fact spending at the M1 and the M2 level, weren't you?---Yes, I was.

PN6306

And Mr Ebenwaldner had that removed via email on 17 November last year, that's correct, isn't it?---That's the final email, yes.

PN6307

And he was deleted off the system?---That's correct.

PN6308

Now, you say in your witness statement as I understand it that Mr Ebenwaldner retains M1 authority, is that correct?---Sorry, retains a?

PN6309

Retains M1 authority, is it M1?---Yes, that's correct too.

PN6310

Just let me check it?---M1.

PN6311

That's the $1000?---Up to $1000.

PN6312

It's M3 is it? We're all confused. So Mr Ebenwaldner maintains that?---Yes, he does.

PN6313

As indeed does Mr Maunder?---Yes, he does.

PN6314

And for anything over $1000 both Mr Ebenwaldner and Mr Maunder would need to seek your authority one presumes?---That's correct or in my place in my absence, Jack Hobbs.

PN6315

Yes, well, the next level of management if I can put it in those terms. You would be an E3?---2.

PN6316

E2. And Maunder is an A4, isn't he?---That's correct.

PN6317

So is there an E3 between you?---Yes, there is now.

PN6318

Who is the E3?---Tom Szigeti.

PN6319

Now, that's the department manager's position, isn't it?---That's correct, to Jack Hobbs in production.

**** GARRY ELKINGTON XXN MR ADDISON
PN6320

And that's the position that you spoke about earlier, the position that
Mr Ebenwaldner applied for?---That's correct.

PN6321

Mr Szigeti also applied for it obviously, he's there?---He did indeed.

PN6322

And Mr Maunder applied for it, didn't he?---Yes, he did.

PN6323

Did anybody else?---There were other candidates.

PN6324

Now, you have produced as part of your evidence T18 which is the one page report with regard to that interview for that position, yes?---Correct.

PN6325

And that's Mr Ebenwaldner's one page report?---That is indeed. The contents are his, yes.

PN6326

Is there any reason why you didn't provide Mr Szigeti's one page report or
Mr Maunder's one page report or anybody else's?---I wasn't requested to do so.

PN6327

No, that's okay. Now, the one page report is developed from, I think your evidence, the statement in the objective box, correct?---That's part of it, yes.

PN6328

There's also a scenario which the applicant must comply with, isn't there?---How do you mean a scenario, sorry?

PN6329

Well, for instance you said to the applicants I want you to look at the strategy, it needs to be head count neutral?---I don't recall that, sorry.

PN6330

My instructions are very clear on that, that the part of the scenario was that the development of the strategy in response to the objective had to be head count neutral?---That could possibly be so, yes.

PN6331

So you don't disagree with that?---I don't disagree with it, no. I don't recall.

PN6332

Sorry about that, Garry. All the applicants were told or given the same scenario or criteria I presume?---That's correct.

PN6333

Now, an applicant, for instance, if Mr Ebenwaldner was the applicant, which he is, would need to put him or herself in the department manager box, wouldn't he?
---He would have to do that, yes.

**** GARRY ELKINGTON XXN MR ADDISON
PN6334

And would then to work simply with what was left. That's correct, isn't it?
---That's correct, yes.

PN6335

And indeed if you look at the organisation box that's exactly what
Mr Ebenwaldner has done, isn't it? He has put himself in the department manager's box. He has then worked with the other classifications that are available to him in a head count neutral sense to simply draw a structure. That's correct, isn't it?---That might be so.

PN6336

You will notice in terms of engineering that he's also got assistant manager/supervisor, do you see that? Do you recall a discussion with
Mr Ebenwaldner at the interview stage where Mr Ebenwaldner explained why he had that tag on that position?---No, I don't.

PN6337

You don't? You don't remember Mr Ebenwaldner saying to you, well, Garry, there's currently a dispute with regard to assistant managers and supervisors so I will put assistant manager/supervisor in that box because it will depend on the resolution of that dispute as to what happens?---Sorry, I don't recall that.

PN6338

You don't recall that?---No, I don't recall that.

PN6339

Okay. Now, I just want to back track a bit. I'm really sorry about this, Garry. People have been searching for me while we have been talking and with regard to the question of the development of the mine map Mr Ebenwaldner gave evidence and this is at PN2361 with regard to this matter and Mr Ebenwaldner's evidence was that his workload was so high, he had several discussions with yourself -

PN6340

that unfortunately we have to clearly define our roles.

PN6341

And he's speaking about himself and Mr Maunder -

PN6342

and responsibilities and share the work. So it was then decided we sit down in a room and we actually put all the items on the left hand side, which is the mine map, the maintenance mine map task, so these are items that myself and Mark Maunder had either direct responsibility or shared responsibility.

PN6343

They set up task listings which a breakdown and a summary of the mine map. They had one meeting and they divvied up the responsibilities. Now, does that accord with your recollection of that meeting?---No, unfortunately it does not.

**** GARRY ELKINGTON XXN MR ADDISON
PN6344

Sorry?---It does not.

PN6345

It does not?---No.

PN6346

Just coming back to that question of money, there are people within power train apart from the people you gave evidence about who have got M1 authorisation, aren't there? There's the two clerks?---Two clerks, yes.

PN6347

You gave - - -?---Mark Maunder, yes.

PN6348

Mark, Gary?---Mark, yes, Gary, yes.

PN6349

And there are others, technical officers for instance?---M1 release, no.

PN6350

Do you know a person called Tom Panza?---Yes, I do. He's a technical officer.

PN6351

He's a technical officer. He has M1 authority, does he not?---Not as I'm aware, no.

PN6352

I put it to you that he has M1 authority, you're not aware of that?---I'm not aware of that, no.

PN6353

Now, you were taken to Mr Ebenwaldner's witness statement and you were taken to attachment 3 of Mr Ebenwaldner's second witness statement, have you got that? It's the CER request?---Yes, I have that.

PN6354

The capital expenditure?---Correct.

PN6355

Now, Mr Ebenwaldner gave evidence with regard to this document also and in essence this is a continuing expenditure, is it not?---Looking at it, yes, it is, yes.

PN6356

In the fact the budget is preset and it was preset a significant time before this matter was raised. That's correct, isn't it?---That's correct. It may not even for this actual one, original budget.

PN6357

Well, as I understand Mr Ebenwaldner's evidence and if my friend disagrees I'm sure he'll let me know. As I understand the evidence capital expenditure budgets are set on basically an annual basis, that there's some plan which is developed and in the case of this particular document there's a plan been developed for project expenditure and that project expenditure is in total sum of $90,000 and if you have a look at the top left hand corner that's there?---That's correct, that's correct.

**** GARRY ELKINGTON XXN MR ADDISON
PN6358

That as the project is completed I guess various requested are used and in this particular request there are four items to be done and they're below those boxes?
---Mm.

PN6359

Supply and installation of racking, external vents, et cetera. They're the actual jobs that need to be done and $23,560 needs to be spent to get those four items of work done. That's correct, isn't it?---That's what it says, yes.

PN6360

And this is to do with the compressor room. That's what it says ..... amount, physical location of the asset to work in the air compressor room as I understand it?---That's correct.

PN6361

And then Mr Ebenwaldner has signed it off as the person who has raised the requested work, that's correct?---That's correct.

PN6362

Now, Mr Ebenwaldner's evidence was that it then needs to be signed off by the department manager, that's correct? In this case it was Jack, is it Jack? Jack Hobbs, is that right?---His name is Jack Hobbs, yes.

PN6363

Yes, yes. Now, there is no requirement for Mr Maunder to sign this off, is there?
---Yes, there is.

PN6364

Mr Ebenwaldner's evidence on this matter was that it needs to be authorised by the department manager?---It has to be authorised by a department manager. It goes through a set process which includes the section manager.

PN6365

So you say this simply is a matter of hierarchy, do you?---As part of the process.

PN6366

You gave evidence with regard to hierarchy?---Hierarchy part of the process.

PN6367

You say in your evidence that there's hierarchy in place and you expect people to go through the hierarchy?---That's correct.

PN6368

And it's simply a matter of hierarchy, isn't it?---No, it's a process whereby there's checks and counter checks that are done to ensure for example that when the department manager gets it, which is usually me, and I am a plant manager which is one step above that, it would not go through Jack Hobbs but it would go through the section manager. For example, if I received this I would then confirm that Mark Maunder was aware that this document has been read and is agreed to before I sign it off. If I have any issues with that I would take it directly back to Mark Maunder.

**** GARRY ELKINGTON XXN MR ADDISON
PN6369

And what would Mark Maunder do with it?---He's already done it. If he has signed it - the system indicates that he has looked at it, confirmed it, made sure the paperwork is correct, looked at the quotations, make sure they're correct so when I get it most of the back checking would be done.

PN6370

So what's Maunder's role in this document? Mr Ebenwaldner as I understand it and as I understand his evidence, Mr Ebenwaldner says right, it's time to do these four bits of this job. There have been other bits done, logically, because this is work 23 grand and there's 42 grand left so there's obviously been some work done previously and I think that's the cumulative expenditure which is $24,177 on that top left hand box from the second box in, that's the cumulative expenditure so far, isn't it?---That's cumulative but it may not mean that it's specifically for this particular project. As I indicated earlier, these projects, for example if you look at the top left hand side you have the budget project number, H0314. That project number can be allocated to a number of projects such as this so it may not infer that the first 24,000 has been there. I can't answer that, I don't have the documentation in front of me.

PN6371

So are you saying that this budget which is raised for H0314, $24,177 might have been spent on a different project which may have been B0314 for instance?---It could well be, yes, 90,000.

PN6372

So you're telling me the document means nothing in real terms?---No, the document means that there is $90,000 allocated for a number of projects and those projects would actually eat into the 90,000. As we see here, 24,000 has already been spent of it. I can't confirm whether that has been for this particular item because as you can see here, he has also got not only removal of the bases of the concrete he's also installing a racking.

PN6373

Yes, that's associated with the project though, isn't it?---Yes, at 23,000 but I can't say whether the 24,000 has already been spent, has also been used for that particular project.

PN6374

That's all ..... but anyway. Mr Ebenwaldner raises this requisition, there's no arguments about that, is there?---He raised it, yes.

PN6375

And Mr Ebenwaldner, one presumes, gets a quote from the local concreter and gets a quote from the local racking supplier and puts the figures in and tells you that he needs to spend 23,500 grand on this particular part of the project?---It goes to Mark Maunder first because he's actually signed it before it comes to me but there would have been a courtesy in there in regard yes, I am raising it and I am raising it for a particular project.

**** GARRY ELKINGTON XXN MR ADDISON
PN6376

So you accept that it's a courtesy matter?---It's a courtesy to inform me first but I will not sign it off unless Mark Maunder, the section manager, has looked at the documentation to ensure it's all there and is correct.

PN6377

So what's Maunder's role in this, to look at it and to determine that all of the elements are there, is that right?---All of the elements plus confirm that this is part of the project and we will move ahead with it. Without his signature I will not sign it off.

PN6378

Is that not duplication?---It may well be duplication but it's a case of checks and balances within the system. We are talking about Toyota spending $23,000 with companies that we utilise outside our operation, contractors, suppliers, so we have to confirm that it's ethical.

PN6379

Yes. Isn't that what Mr Ebenwaldner does every day with regard to temporary labour for instance? Mr Ebenwaldner goes to Skilled Engineering, does he not, and says to Skilled Engineering I need five fitters, four sparkies and something else and the cost will be $20,000?---That's correct, yes.

PN6380

He does that every day?---He does it every day.

PN6381

And in terms of capital expenditure requests, this particular capital expenditure request, there's a preset budget is there, it is allocated to this particular job or this particular project, Mr Ebenwaldner simply raises the request to release the preset funds or a portion of them and you're saying that Mr Maunder then needs to what, cross check the document?---That is correct.

PN6382

And that's all he does?---He cross checks the document to confirm that all the paperwork is there before I receive it. He then with his knowledge confirms that the, for example, the tenders or the quotes are reasonable or correct and then it will come to me.

PN6383

How does he do that?---Based on his knowledge, the same knowledge that Gary would use.

PN6384

Yes, so how does he do that? Does he ring the suppliers?---He can do in some cases. For example, if I have a query in regard this because, for example, if a quote comes to me that says a clear $25,000 the first thing in my mind, that seems like a very round number, what is not 24,990.

**** GARRY ELKINGTON XXN MR ADDISON
PN6385

Fair enough?---So I would look through that as one of the things I would simply do, okay.

PN6386

Yes?---Some of knowledge has that I know some of the contractors, I know who we work with, I know some of the contractors that we don't. So I might ask of Mark Maunder please confirm this.

PN6387

And what does Mark Maunder then do?---He could confirm with Gary. He could confirm himself by telephone.

PN6388

I put it to you that's exactly what he'd do, he would come to Gary and would say is this right. That's correct, isn't it?---No, he doesn't always come to me and say that's right. That's the point. These are not always signed when they come to me in raise the CER.

PN6389

That's the point I'm making to. The point I'm making to you is if you have this document or a document similar to this and you raise with Mr Maunder an issue and you say to Mr Maunder I'm not happy spending 345 bucks or whatever it might be for this?---Yes.

PN6390

Mr Maunder would then go and speak directly with Mr Ebenwaldner, wouldn't he?---He could well do that, yes.

PN6391

That's what he would normally do, isn't it?---He could well do this.

PN6392

Now, you gave evidence that there's an overlap, I think you said, between the assistant manager and the SGF?---That's correct.

PN6393

You would expect the general - my apologies, I will rephrase that. You would expect the assistant manager to carry out their supervisory tasks in the section, wouldn't you?---In some respects, yes.

PN6394

You would expect the assistant manager to supervise the group leaders, wouldn't you?---If it is necessary, indeed yes.

PN6395

Part of your evidence you said you can't take out the SGF, do you recall that?
---Yes, indeed.

PN6396

So you think there's a need for an SGF?---I think in regard this particular item we're talking about as in Gary Ebenwaldner as an SGF of the engine plant I could not take him out, no.

**** GARRY ELKINGTON XXN MR ADDISON
PN6397

So between the people doing the maintenance work on the ground you have three levels of supervision, the GF and the SGF and then three levels of management?
---There's no GF. There's only an SGF.

PN6398

All right. So you have two levels of supervision and then top of that you have three levels of management, is that right?---Yes. We also have a level of team leaders which is also considered to be supervisory - - -

PN6399

I think I said team leaders, didn't I? Group leaders are different. Team leader is the old leading hand, is it?---That's correct, yes.

PN6400

And you have Mr Maunder is the assistant manager and then you said you have another manager in between that level and yourself. Who was that again?---That's Tom Panza as of last December.

PN6401

Not Tom Panza is it?---Sorry, Tom Szigeti.

PN6402

Szigeti?---I apologise, Tom Szigeti.

PN6403

And he's the department manager?---Correct.

PN6404

And you are the plant manager?---Plant manager.

PN6405

So that means you're responsible for that building with the presses in it?---Engine plant.

PN6406

Engine plant?---Casting, engine.

PN6407

Yes, I'm just trying to remember the walk through we had. So you're responsible for the casting plant?---Casting operation, the machining operation and the assembly operation, plus maintenance, plus engineering.

PN6408

Yes, and how many employees are in that plant?---Approximately 350.

PN6409

So you're responsible for 350 people overall?---That's correct.

PN6410

And then the department manager, Mr Szigeti, he's responsible for how many people?---He's responsible for engineering service and also maintenance so I'd suggest probably 50 maintenance, tool regrind and then we have the associated engineering staff, casting and engine.

**** GARRY ELKINGTON XXN MR ADDISON
PN6411

And then you have Mr Maunder who is the assistant manager in maintenance, is that correct?---He is no longer the assistant manager or section manager in power train. He has now moved. There is a replacement now, that's David Horton.

PN6412

Okay. For the purposes of this Mr Maunder was responsible for maintenance department?---Yes, that's correct, only maintenance.

PN6413

And how many people would that make him responsible for?---Over two shifts, can you bear with me while I count?

PN6414

Yes, absolutely?---Approximately 40/45.

PN6415

40 to 45 people?---Excluding the group leaders.

PN6416

And then Mr Ebenwaldner is in the structure there, how many people is he responsible for?---Direct responsibilities would be four group leaders.

PN6417

Plus their teams?---Plus their teams, correct.

PN6418

Which is 45 people, isn't it?---Correct.

PN6419

So Mr Ebenwaldner has the same number of employees that he's responsible as Mr Maunder?---Mr Maunder has one extra which is Gary.

PN6420

Yes, yes. And then each group leader would have a team of 10 or 12 people, is that right?---It's approximately 10 in the engine plant and six in regard casting.

PN6421

One would presume that day shift would be bigger than the night shift but with those variances - - - ?---Day and afternoon shift are the same, there is a separate for night shift due to the nature and scope of the work.

PN6422

Yes, okay. Now, you say there's the overlap and I think you described two parallel lines?---Yes.

PN6423

You would expect Mr Maunder - I'm sorry, I'm just sticking with Mr Maunder because I've got that name in my head and I'm not good with names so I will forget the other one. You have got Mr Maunder who is the assistant manager. You have said that you would expect Mr Maunder to supervise the employees, the 45 employees or thereabouts and that there's something else that you would expect Mr Maunder to do. Can you tell us what the something else is?---A couple of example. The maintenance consolidation program that we've instigated last November that concept was initiated probably about four years ago with the assistance of the section manager as a long term business plan. There are lots of complexities in making that move and it's taken us that long to actually achieve it and regard it. I put that to my section manager in regard this is what we've got to look for, this is how we've got to move to the future, you have to start looking more deliberately and specifically in how we're going to make it effect.

**** GARRY ELKINGTON XXN MR ADDISON
PN6424

So you tell Mr Maunder and I'm just trying to get it clear in my mind here, you tell Mr Maunder in five years time we want the department to look like this, whatever it might be?---Correct.

PN6425

Give me the strategy ….., is that right?---That's part of it, yes.

PN6426

That's part of it?---Yes.

PN6427

What else is there?---Well, the first stage is give me your thinking, your observations, is this achievable in five years time, does he believe, the section manager, that this is the way we need to move forward. This is a long term business plan. There are many long term business plans which are actually raised, discussed and then rejected and there are many that are raised, discussed and implemented.

PN6428

Okay. So for instance, you would say to Mr Maunder we want to make an engine ..... block, instead of using 45 people in maintenance we want to get the maintenance down to about 20 and there are some new machines we could possibly get to assist in that, what's your thoughts, is that what you do?---That's the start of the process, yes.

PN6429

And Mr Maunder says, well - well, one presumes Mr Maunder says, well, it depends on the machines, can you get approval from Japan to get them, is that right?---That's correct.

PN6430

Because you can't authorise the purchasing of any machines, can you?---Yes, I can, once I've raised the necessary documentation which is a capital expenditure sheet that would then raise to directors to say that in five years time the project would need an injection of $10 million.

PN6431

Yes, that's right?---That's how I would do it.

PN6432

You would need to go to Mr Dobson, wouldn't you?---I would go to him first and then we would arrange, if he agrees, because this is, don't forget, long term, five years back, he would then make arrangements for me to present to directors.

PN6433

And the directors are in Japan, are they?---No, the directors are in Australia but the directors in Japan have a role. Not necessarily directors but certainly the senior management in our mother plants.

**** GARRY ELKINGTON XXN MR ADDISON
PN6434

If I take you back to that document that we were talking about earlier, attached to Mr Ebenwaldner's statement, I think your evidence was that the third signature under department manager was a Japanese person?---Jack Hobbs, yes.

PN6435

No, Jack Hobbs and then there's another signature which looks like MSN actually?---Yes.

PN6436

I think you said that was a Japanese?---That's right, that's the coordinator mike Nusoir.

PN6437

And what role does the Japanese person have in this document?---Balance and checks. If he signs this document after mine before it goes to our divisional manager which is Mark Dobson.

PN6438

Okay. So as I understand, the CER is raised by Mr Ebenwaldner?---Correct.

PN6439

Mr Ebenwaldner then tells Mr Maunder that this is what is going to happen and Maunder signs it. Maunder then takes it to Hobbs in this particular case?---Could have been him, yes, that's correct.

PN6440

Or it could be you and says can you sign this and either Hobbs signs it and then it's taken over to some Japanese person?---Correct.

PN6441

Mike somebody you said?---Nusoir.

PN6442

Nusoir, for his signature?---That's correct.

PN6443

And he authorises it, does he?---He authorises it by this, yes.

PN6444

And then it's taken somewhere else?---It goes to divisional manager Mark Dobson for signature and then it goes to the executive director for signature and then goes to the executive vice president for signature.

PN6445

And are they in Australia or Japan?---They're here in Australia. These - sorry. In each one of these cases if it is not signed by those individuals it doesn't get processed.

PN6446

Okay. So this isn't the end of the chain, it just keeps going until it gets to the executive vice director, is that what you said?---That's correct, particularly above $10,000.

**** GARRY ELKINGTON XXN MR ADDISON
PN6447

And that's consistent with the policy, isn't it?---As I understand it, yes.

PN6448

Well, the policy is in evidence and the policy is - I've still got it marked for information, MFI1 and I think it was changed. I think it's a Toyota exhibit. I will just pass it - - -

PN6449

THE SENIOR DEPUTY PRESIDENT: TOYOTA8.

PN6450

MR ADDISON: TOYOTA8, is it? That's the policy, isn't it?---I assume so. I haven't seen the document.

PN6451

It's in evidence as the policy and general manager is above you, is it? You're the plant manager, aren't you?---I am a plant manager.

PN6452

Yes?---There are no longer any general managers, they're called divisional managers.

PN6453

And Mr Tainsh said when he gave evidence on the first day of these proceedings you're going to get awfully confused about terminology and I think he's right. When do you sit in terms of that hierarchy, are you in the middle between M3 and M2 or are you M2 or are you M3?---I'm M2.

PN6454

You're M2?---My divisional manager, Mark Dobson, is M3.

PN6455

Right?---And then we have obviously M1 beneath that.

PN6456

So general manager is now divisional manager and it's Mr Dobson?---That's correct.

PN6457

And that says over $10,000. Is there a limit on Mr Dobson's authority?---Yes, there is.

PN6458

100,000?---I can't comment. I believe there is, I can't comment on the exact amount.

PN6459

But in any event, in any event your evidence is for 23,000 to be spent it needs to go to the executive vice chairperson?---Well, that's where the signatures will come from, yes.

**** GARRY ELKINGTON XXN MR ADDISON
PN6460

So Mr Dobson would at some point sign off attachment 3 to Mr Ebenwaldner's statement, would he?---Yes, he would.

PN6461

After you?---After me and after he's called me over to explain it.

PN6462

Well, obviously if he has a query one presumes---No, recently, no.

PN6463

Recently, no?---Checks and balances, budget.

PN6464

Car companies must be getting poorer. Okay. So we've got a position where you say that the additional work that you would expect an assistant manager to do outside the work of a senior general foreperson would be feedback to proposals about long term plans, is that correct?---That's one of the items, yes.

PN6465

Yes, what else?---As I said before, about developing the long terms plans. We spoke earlier about the total production maintenance whereby I would come back with a concept. I'm not actually going to implement it. I would hand that over to the section manager. He would develop the plans and then he would pass and roll that down to his general forepersons and his group leaders and obviously the team members as well.

PN6466

Now, this has been the subject of some evidence from Mr Mulhall, do you know Peter Mulhall?---I know of him, yes.

PN6467

He's an assistant manager, yes. He's been asked to implement certain things in the body shop, is that right?---I don't know where he works, sorry.

PN6468

Yes, in the body shop. I think his evidence was that effectively a project, and I'm not going to go into any - a project was brought from his manager from somewhere else and it was given to Mr Mulhall and Mr Mulhall was asked to develop the strategy, is that the sort of thing you're talking about?---It appears to be, yes, an explanation.

PN6469

And I think your evidence was with regard to this other matter that you'd gone to Japan, you worked on the line I think you said for a week?---That's correct.

PN6470

You brought the idea of the concept back and you asked Mr Maunder to look at implementing it?---That's correct.

**** GARRY ELKINGTON XXN MR ADDISON
PN6471

And Mr Maunder would implement it by going to the GFs and the SGFs and the GL and the TLs and the blokes on the job and get them to implement it, wouldn't he?---That's correct. There's also another link.

PN6472

Yes?---And that link is that Mark Maunder for example would also have to approach, in this case because of the nature of the concept, would have to approach the production management in regard their support for this particular activity because it's linked directly to production as well as maintenance. It's not solely maintenance responsibility.

PN6473

So who would he go to in production management?---He would see, for example, Bopet Togalu or - - -

PN6474

Who is?---Who is a section manager or Marion Sarlo who is a section manager. So he would attempt to roll that out gaining their support. This particular program cannot operate in isolation with maintenance only.

PN6475

Well, let's have a look at things like that. If you were going to ask Mr Maunder to implement a program like that would you not talk to somebody in production management first?---Yes, I would. I'd talk to Jack Hobbs indicating that this particular program is orientated towards maintenance, that it requires production input so your people will be contact in regard to this particular event.

PN6476

So you speak of the production management at your level?---The level beneath me which his for example Jack Hobbs.

PN6477

A higher level than Mr Maunder in any event?---That's correct.

PN6478

And you would say, well, you know, we want to do this and blah, blah, blah and my people will contact your people, is that right?---It is not that way. It is a case of this would be raised at our, for example, 10 o'clock meeting during the week that I have just come back and my head is full of improvement activities that I cannot implement alone. At that meeting I would indicate that I would have - this is the concept that's Mark because it is predominantly maintenance, would actually lead the role and that, for example, Jack as department manager, that your section managers will be getting directly involved with it via Mark.

PN6479

Okay. And when Mark talks to his GF, maintenance GF, would he tell his maintenance GF to contact the production GF as well?---No, probably not.

**** GARRY ELKINGTON XXN MR ADDISON
PN6480

Why not?---Well, those links would already be done by Mark. The initial steps he'd be arranging himself. He'd start pulling people in. Basically it's a sponsored project, sponsored by the maintenance department via Mark Maunder who would then roll out and draw in all the other resources that are necessary.

PN6481

Aren't sponsored programs developed through action teams?---Not necessarily, no, dependent on the scope.

PN6482

Because there's evidence in these proceedings with regard to action teams and the evidence with regard to maintenance projects particularly is that there is an action team of GFs and SGFs to do that?---We also work independently of that plant by plant.

PN6483

Okay. So what we've got now is we've got an assistant manager who provides feedback on new concepts and an assistant manager who passes plans from yourself to the GFs. What else does an assistant manager do?---For example the capital budget he would be responsible for raising that but there is an issue because we don't actually budget in our plant, we actually allocate, but he would actually raise the documentation or draw in the people to make up the list. I believe there's some in evidence in here in regard a capital budget listing, a wish list.

PN6484

Yes, I think that's right. So he would - just bear with me. Yes, here it is. Can I take you to attachment 1 of Mr Ebenwaldner's statement, I think you've got it there. Yes, is that it?---It's got on here wish list budget 2006.

PN6485

A five year forecast?---Yes, yes.

PN6486

Mr Ebenwaldner has put this together, hasn't he?---As I understand it, no. He participated in drawing it up but it was done by the section manager, traditionally on the whiteboard.

PN6487

Just bear with me a second. So this was generated in a brainstorming session, that's correct, isn't it?---I would suggest so, yes.

PN6488

With the involvement of various levels of the structure. I think you may have been involved in some of these brainstorming sessions?---Not this particular one, no.

**** GARRY ELKINGTON XXN MR ADDISON
PN6489

Not this particular one but you've been involved in similar ones?---Yes, yes, I have.

PN6490

And that would involve people from all levels of management supervision, wouldn't it?---Could well do so, yes. It would depend on the expertise.

PN6491

And it's exactly what it says it is, it's a wish list?---Unfortunately, yes.

PN6492

And you would expect Mr Maunder to - you said in your evidence that you would expect Mr Maunder to do this sort of thing. When you say do this sort of thing do you mean conduct the brainstorming sessions?---I'd go direct to him and indicate that we have a capital budget coming up for the following year, this is usually September/October. I said we need to start looking at how we can try to push to get more capital allocated to our plant so can you start talking to your people to generate the types of capital budget that we require and the projects that we need.

PN6493

So Maunder would then go to the troops that he's responsible for and have a brainstorming session?---Correct.

PN6494

Fred, the local Italian fitter would say I want a cappuccino machine and the wish list is generated, is that right?---Well, the cappuccino machine would not be on the wish list.

PN6495

It was always on mine when I was a maintenance fitter and I'm not Italian. But that's the sort of thing, isn't it?---That's correct.

PN6496

The position, what do you think, it would be really good to have another couple of decent lads or it would be terrific if we got a ..... machine, blah, blah, blah and then a list is developed. The list then goes to you I presume?---That's correct.

PN6497

You, I presume, go through the list and yes, that would be really nice but unfortunately we can't have that and you'd knock items off?---There's certain parameters that I have in regard how successful I would be in promoting this kind of capital budget.

PN6498

You would be the one to knock off the cappuccino machine, wouldn't you?---No, I'd leave that on but I'd knock all the others off.

PN6499

So you would knock items off that you thought were just ridiculous one presumes, or that you thought you weren't going to get?---That's more the case. In actual fact the list that I do receive from my management and supervision is not ridiculous.

**** GARRY ELKINGTON XXN MR ADDISON
PN6500

And then it would go to Dobson?---No, no, I'd raise it because these are particular projects here. So for example I would then have to condense it. Now, I'm asking for above and beyond what I will be allocated.

PN6501

Because you want to have a wish list too?---That's right.

PN6502

So you get Mark to do a brainstorming session, Mark raises something like this?
---Mark raises one, yes.

PN6503

Yes, something like this, it would be different in different years obviously. Would come here and say this is what we reckon would be really good, you then open and say, well, this one, this one, this one will have to go, there's no way I'm going to get that, but I think I might be able to squeeze this one and this one in. So you might leave a dozen projects on and then it would go to Mr Dobson for his input from there, is that right?---That's correct.

PN6504

And then he would knock more off because you expect that because it's ..... that you're putting to him, isn't it?---Well, it has changed slightly so once I go with the finalised list in actual fact we were successful in getting some of them actually allocated.

PN6505

Would it go beyond Mr Dobson?---Yes, it does. It then goes to the finance department and then the directors would have it.

PN6506

Now, I presume anything below 10 grand that comes up on the wish list you can just authorise?---No. When it's submitted even those items that are below 10 grand would still have to be scrutinised. It's not cart blanche for me to spend any money whatsoever.

PN6507

So this policy that we talked about earlier, which is T8 which you've got a copy of it there, it doesn't apply in terms of spending money generated from this sort of process, is that right?---No, it does, it does. That's part of the process.

PN6508

But you just said you can't spend the 10 grand?---No, I can't - I have to have the allocation made to me. For example I would submit - this one here one has got something like $2.7 million, okay.

PN6509

Sure?---That's $2.7 million above what we had last year. So by the time I've finished with the list it could be 500,000 only.

**** GARRY ELKINGTON XXN MR ADDISON
PN6510

Just have a look at that and if you go to item 8 on facilities?---Mm.

PN6511

HVAC, two by panel upgrades, 9 grand?---Yes.

PN6512

That's below your maximum authority level as I understand it for the policy?
---That's correct.

PN6513

But you can spend up to 10?---Yes, I can.

PN6514

You can't just tick that off?---No.

PN6515

Somebody else has to approve it?---That's correct, because they're approving the total dollar amount. So how I prioritise these is to turn around and say, well okay, I have to - for example, a number of these we can't physically do this year, there are other projects where the money should be directed to, so we'd actually issue a request for a certain amount of dollar value. Once that is sanctioned, if it sanctioned, then we can start spending, but just because it's on this list does not mean that I will actually receive the capital budget.

PN6516

Well, I don't know what an HVAC panel is but let me put this to you, if the HVAC two by panel upgrades didn't get onto this list and the list went through its normal process but halfway through the budget period the HVAC panels died for whatever reason, and I don't know whether they can or not, it's only a scenario, but if they died for whatever reason and you needed to replace them could you then spend the 9 grand?---I could do that because it's an essential item. For example, the CER we have here which is H314 where this money has been allocated to do this particular job, as I said before, the $24,000 could have been the $9000 necessary for the HVAC. I only have a certain bucket of money to be able to spend and that's what the prioritisation is in regard to how we spend it.

PN6517

All right. Now, this list is for projects as I understand, is that right?---Well, there's a list of items here so they are projects.

PN6518

Yes, it's the wish list?---Wish list project, yes.

PN6519

There's also an R and M project, isn't there?---Yes, there is.

PN6520

Would that be equivalent to this or greater than this?---They wouldn't be equivalent. This would be part of that. What you must understand, in the capital budget there is capital budget R and M and this is $300,000, all right, which would have to be used in regard to HVAC system if you had to do it and then you had the capital budget per se which delegated to particular projects, for example, such as the new V6 engine line.

**** GARRY ELKINGTON XXN MR ADDISON
PN6521

Yes. But the money is not necessarily spent on the projects that are approved, I think you said that earlier, correct?---That's correct because priorities will change during the financial year so we'd have to allocate accordingly.

PN6522

So you have got an R and M budget of 300,000?---Correct.

PN6523

You've got a project budget for 1.2 million or thereabouts?---Total value this year for example we requested on our wish list something like $8 million.

PN6524

You didn't get that I bet?---We didn't get that. It was five.

PN6525

So you got 5 million bucks plus 300,000?---Correct - no, $5 million including 300,000.

PN6526

Okay. So you had a budget of 5 million bucks and you're accountable, are you, for spending that 5 million bucks in an efficient and proper manner?---That's correct. It doesn't mean that each one that I put in would be sanctioned by my superiors. They may have other priorities for that money.

PN6527

I might have - in fact I'm sure I asked that question. You have got 5 million bucks that is power train budget?---Correct.

PN6528

You're the senior manager of power train?---Correct.

PN6529

There is nobody above you in power train?---No, there's not.

PN6530

If the 5 million bucks is spent frivolously and I used that term advisedly, if it's frittered away over something ridiculous you're the person that's held responsible for that, is that right?---We work for Toyota, that would not happen.

PN6531

No, no, I accept that. You put your wish list in, you have your approvals. You've said previously in evidence that you don't necessarily spend the money on what's been approved?---The projects that is, that's correct.

PN6532

Yes, that's right. You said that attachment 3, H0314, the 24 grand that's already been spent may not have been spent on that, it may have been spent on something different?---That's correct, that's right. Based on a priority.

PN6533

Depends on the priority, that's right. One presumes the 300,000 is your R and M?---Mm.

**** GARRY ELKINGTON XXN MR ADDISON
PN6534

Let's say you spent 600,000 on R and M instead, that means you've got to siphon off 300 grand from the project?---From the original ..... correct.

PN6535

Who's responsible for that, who is accountable for that?---I am accountable for that but I have to get sanctioned from my superiors in regard doing it.

PN6536

So you can't siphon off 300 grand without approval from Dobson?---How do you mean siphon 300 grand, for what purpose?

PN6537

Well, you can't change the spend without getting approval?---Can't change the spend, that's correct, yes.

PN6538

Now, your assistant manager raises the wish list, comes to you, you approve it, it goes on and gets approved at the various levels, a budget is allocated, you can't change the allocation without approval - no, I withdraw all that. What else do you expect the assistant manager to do?---In the absence of a senior general foreperson for example for a period where there is no replacement or promotion - - -

PN6539

No, no, I accept that?---Okay.

PN6540

What we're talking about is the two parallel lines. Two parallel lines, what you've said as I understand your evidence, what you've said is you expect the assistant manager to deal with the SGFs, you expect the assistant manager to supervise the 45 guys - persons, I shouldn't say guys?---Mm.

PN6541

45 persons who he or she is responsible for and then you expect them to and what we have identified so far is you expect them to give feedback on improving plans, to run brainstorm sessions with regard to the budget wish list and to implement strategies for change. Is there anything else?---To train or prepare and to train the relevant people.

PN6542

You would expect everybody to do that though, wouldn't you?---I would but there are roles in regard to training, coaching, mentoring from a section manager's point of view specifically for maintenance.

PN6543

I would expect a maintenance fitter to train an apprentice to be a maintenance fitter?---No, we're not talking about - we're talking about person development, for example, of group leaders or an SGF.

**** GARRY ELKINGTON XXN MR ADDISON
PN6544

You would expect a GF to be developing his group leaders in terms of leadership as well, wouldn't you?---That's correct. Being supported by the section manager, sure.

PN6545

So that's really part of the broad responsibilities that everybody has got, isn't it?
---It is but obviously they are different between the levels.

PN6546

What's the difference?---For example as you said before, I wouldn't expect a section manager or a senior GF to be instructing a fitter for his next TR level.

PN6547

So would you expect an assistant manager to do in terms of development of people which is different to what you would expect a general foreperson to do in terms of development?---Okay, this is where one of the overlaps are for example. Our progression model for trades indicates that at TR5 and 6 that they have to work directly with engineering services in regard to project which can be assessed so they can receive the relevant level payment.

PN6548

Yes?---So for example, with a senior GF talking to the engineering, because of the authority level it is assumed that there may be some struggles in regard engineering services taking that role on. As a section manager the influence is far stronger so therefore he could talk to the relevant people to gain that support.

PN6549

So once again it's a question of - are you really saying to me it's a question of style and influence?---Obviously being a manager it is. It's a collaborative approach and how to influence people.

PN6550

Now, is there anything else you would expect an assistant manager to do over and above that supervisory function?---Sorry, a section manager to do?

PN6551

An assistant manager, section manager. I think you say they're the same creature?---Section, yes. Section, assistant.

PN6552

You say they're the same creature. So is there anything else or is that about it?
---You mentioned ALTs earlier, yes, the section manager is part of an ALT for the maintenance point of view.

PN6553

So is everybody else, aren't they?---Pardon?

PN6554

So is everybody else, aren't they?---In section managers, yes. And the purpose of that is to gain some consistency across the site, not only for the day to day running which would be a senior GFs activity but also the section manager which is more broad.

**** GARRY ELKINGTON XXN MR ADDISON
PN6555

Now, you also mentioned kaizen?---Yes, that's correct, we've mentioned kaizen.

PN6556

So you would expect the assistant manager to be doing kaizen work?---Kaizen work is just a terminology that's used that means improvement wherever that may be. It may not necessarily be in the day to day activities. It could be improvements in a future plan for example.

PN6557

So that comes back to the second matter you raised about strategies to implement a change?---Correct.

PN6558

So you would give the change and you would ask the assistant manager to implement the strategy?---To develop a strategy, yes.

PN6559

You said in your evidence that that's the difference between the award and the non award staff, yes?---That's part of it, yes.

PN6560

Part of it?---Kaizen, you're referring to kaizen, aren't you?

PN6561

No, no, no. Those elements you said two parallel lines, SGF, assistant manager?
---Yes.

PN6562

Like that, keyed in, don't know where that actually applies but keyed in there somewhere. You expect the assistant manager to do all the things that an SGF would do?---No, I don't expect a section manager to do all that an SGF does.

PN6563

I think what you said was, just bear with me, I think what you said was I would expect him to do all the things an SGF would do, he may not do them as well as an SGF but I would expect him to do them all. That's correct, isn't it?---Yes. I can elaborate on that if you wish.

PN6564

Well, there's no need to elaborate on that. That's your evidence, I'm happy with that. So you would expect them to do all that and then additional things and you've just gone through the additional things and you say in your evidence that that was the difference between the award and the non award staff. Do you stand by it?---Yes.

PN6565

I put it to you that the difference between the award and the non award staff is the way they're paid. That's correct, isn't it?---The way they?

**** GARRY ELKINGTON XXN MR ADDISON
PN6566

Paid. Sorry, my accent is shocking, I know that. The way they're remunerated?
---Paid. There is a difference in that, yes.

PN6567

You would not allow an inefficient GF or SGF, would you?---I would not allow it. My endeavours would be to improve it.

PN6568

Indeed it would. If you had a GF or an SGF that was not performing his or her duties in an appropriate and acceptable way there's a mechanism for dealing with that, isn't there?---There is, yes.

PN6569

And that mechanism is under the certified agreement, isn't it?---Correct.

PN6570

You're familiar with the certified agreement I presume?---I'm familiar with the document, yes. The specifics perhaps not.

PN6571

Okay. But you know there is a disciplinary process in the agreement?---Correct.

PN6572

And that disciplinary process allows you to go through a series of steps with an award covered person and safety award covered person can improve, if they don't improve then they're given appropriate warnings. If they still don't improve then after the appropriate steps have been followed through you can ultimately terminate their employment?---That’s as the award indicates, yes.

PN6573

And that's the way you deal with an award person who is not performing, that's correct, isn't it?---Although it's not in practice in power train, but yes, the award indicates that.

PN6574

That's how you would if you - - -?---If it was necessary.

PN6575

If you were faced with that possibility, if you were faced with that problem?---I would consider that a failing in regard management if that was the case - - -

PN6576

Possibly, possibly. I wouldn't argue with you too much about that. But if you were faced with that problem the process is clear delineated in the agreement to be followed?---That's correct.

PN6577

With a non award person the process is slightly different, is it not? You penalise a non award person by not giving them a pay rise. That's correct, isn't it?---That's one method depend on the accomplishment of set targets that they've agreed upon at the commencement of the year.

**** GARRY ELKINGTON XXN MR ADDISON
PN6578

The evidence in these proceedings from Mr Dymock, do you know Mr Dymock?
---I know his name, yes, and I've seen him in the office, yes.

PN6579

The evidence in these proceedings from Mr Dymock is that the balance scorecard has - and this is paraphrasing so if I stuff that up Mr Skene will jump up, but effectively the evidence of Mr Dymock was that a person, non award person has a balance scorecard with a series of targets, if the person meets the targets then the person will get a pay increase. That pay increase will be 7 per cent. If the person exceeds the targets he'll get something more but if he doesn't meet the targets he'll get nothing?

PN6580

MR SKENE: I object. That's not the evidence of Mr Dymock.

PN6581

MR ADDISON: Well, in that case please bear with me because I will have to look. This might take a little while. If the witness could be shown Mr Dymock's witness statement, that might be of assistance. Sorry, Garry. If you go over to table A which is a table which is attached to Mr Dymock's witness statement. Table A purports to lay out - and the bottom line isn't really important, but it purports to lay out the mechanism for paying a non award assistant manager and the non award person as I understand the evidence in these proceedings has a base salary and if the person meets their targets then the person is eligible for a pay increase of up to 7 per cent. I do apologise if I said something earlier, but is eligible for a payment of up to 7 per cent. That's correct, isn't it?---Well, according to this, that's correct.

PN6582

No, no, it doesn't matter what that says. Do you know if that's the fact?---I don't know the fact. I've never received 7 per cent. I've never received 7 per cent.

PN6583

Well, maybe you haven't reached your targets?---And I haven't, and I haven't, and accordingly I have not been remunerated.

PN6584

But you're a non award person?---That's correct.

PN6585

You have a base salary?---Yes, I have a base salary.

PN6586

And you're up for an STI every 12 months I presume?---That's correct.

PN6587

And the STI is a pay increase of up to 7 per cent, is that right?---You're saying that so I have to assume it's the case.

**** GARRY ELKINGTON XXN MR ADDISON
PN6588

You've never had 7 per cent?---I've never had 7 per cent.

PN6589

Maybe you should join the union, but anyway that's another argument. Mr Larkin is sitting on the end there with the cards ready. Now, the targets that you have, they're targets that have been given to you, aren't they, by Mr Dobson?---Certain targets are, yes. They're allocated - you have to understand that Mark Dobson is responsible for three plants.

PN6590

Yes, as I understand Mr Dobson's evidence he is the manufacturing manager number 2 or is the manager of manufacturing number 2?---That's correct which encompasses power train.

PN6591

Yes, which is power train paint shop?---And VAP, vehicle assembly.

PN6592

And vehicle assembly, that's right. And Mr Harvey I think is responsible for the other part of the plant, is that right?---No, Chris Harrod is responsible for the - - -

PN6593

Chris Harrod?---Yes, correct.

PN6594

My apologies, and then Mr Harvey is responsible overall?---Correct.

PN6595

Now, as I understand the way the targets are developed they are developed from the present initially and they are then cascaded down with some negotiation as I understand it between the various levels of management until they reach your level?---That's correct.

PN6596

As I understand Mr Dobson's evidence. There is a document in the evidence which is probably irrelevant anyway, but that's Mr Dobson's targets and for instance one of the targets is ..... I think the target is 110, let's say for the sake of the argument let's say 100 - no, let's say 90 because it's easier on the maths and
Mr Dobson is responsible for three plants so one presumes he would cascade that down and he would say each of the plants is 30 each?---Not necessarily.

PN6597

Not necessarily but possible?---No, not even possibly because each of the plants have a different percentage of employees that work for them, different number, so rather than straight forward 30, 30, 30, it would be based on how many injuries the particular plant has had which equates to the man hours that you're referring to and that allocation would be according to the previous year.

**** GARRY ELKINGTON XXN MR ADDISON
PN6598

That's right, that would be in negotiation one presumes. One presumes that
Mr Dobson would say to you for instance, no more than 30 ..... you would then say to Mr Dobson, well, I think you should factor in all these various variabilities and maybe 20 or 40 is more appropriate?---I'd still end up with 30.

PN6599

You'd still end up with 30. And as I understand the evidence of Mr Dobson there is a possibility of some adjustment of those targets at your level, is that correct, or do you say you just get locked in?---No, no, that is correct but probably the example you've given is not the best one.

PN6600

Well, it was for the purposes of an example only. So you can't negotiate with
Mr Dobson the level?---Lost time injuries, no. If you talked about gross labour hours, yes.

PN6601

Overtime I presume could be a measure but it may not be, but it could be a measure?---It is a measure.

PN6602

And you could negotiate on that and he might say 100,00 man hours is your limit and you may say, well, I need 150,000?---And these are the reasons why I need 150 and then he may allocate from another plant their percentage to me because of the need.

PN6603

But the overall targets of Mr Dobson must be met, is that correct, for Mr Dobson's purposes?---In regarded we have last year's targets, 2006 target and we also have a stretch target to assume.

PN6604

Now, they become your targets as I understand it?---That's correct.

PN6605

And then you tell Tom - help me?---Tom Szigeti.

PN6606

Szigeti, Mr Szigeti, you tell him what the targets are. That's correct, isn't it?
---That's correct, yes.

PN6607

And then he tells Mr Maunder what Mr Maunder's targets are, correct?---That would be the case this year but previously it would have gone to Mark Maunder directly - - -

PN6608

No, I accept that. Well, it's just because you put the extra level in?---Yes.

**** GARRY ELKINGTON XXN MR ADDISON
PN6609

So you cascade down two levels instead of one?---Correct.

PN6610

And then Mr Maunder is judged against those targets?---That's correct.

PN6611

So Mr Maunder may end up with a target, for the sake of the argument, of say 20,000 overtime hours?---Could well be the case.

PN6612

And he may have approved 25,000 and therefore he wouldn't have met his target?
---That's correct. But you also missed out a step because there is a negotiation in regard that, same as my negotiation with my divisional manager.

PN6613

Yes?---Okay. I then negotiate with my section manager in regard whether that would be applicable for him, can he achieve.

PN6614

And you judge the assistant manager against those preset targets?---That's correct.

PN6615

And you determine whether the person is performing or not based on those targets, yes?---That's correct.

PN6616

And if the person is not meeting or exceeding the targets then the mechanism dealing with that is a salary outcome?---Could well be, but there's also an assessment process that also incurs constructive feedback and direction for the future.

PN6617

Well, one presumes you would do that to everybody?---Well, that's correct.

PN6618

I mean if you had an award covered person that wasn't performing one presumes you would go and ask why?---So we're not treating a section manager?

PN6619

That's right. If you found the award person, you know, is in the middle of a marriage break up or his children were ill or whatever, well, you'd factor that in and say, well, maybe that's a reasonable excuse. Similarly with an assistant manager if they weren't performing you wouldn't do the same, yes?---Correct.

PN6620

Now, that person that's not performing would have a salary outcome, would lose potentially or would not gain potentially a salary increase. Are there other sanctions that you would impose on that person?---No, there aren't and I must admit in regard to power train that the outcome has not finished with no remuneration improvement actually delivered.

**** GARRY ELKINGTON XXN MR ADDISON
PN6621

It may not happen is a factual matter. You have rotated people out of power train though, haven't you?---Yes, we have rotated, yes.

PN6622

And rotation is used as a mechanism to remove problem people, isn't it?---No, not in our case, no.

PN6623

If a person is not performing in a particular area you would rotate them somewhere else, wouldn't you?---No. I am responsible for the plant so therefore I am responsible for the individual, therefore I'd have to coach and mentor them to put them back on track and as it's not a yearly assessment obviously it is progressive feedback in regard how they're performing.

PN6624

Obviously we're looking at extremes here, we're not looking at the average. We're looking at extremes here?---Well, we don't have that extreme with power train.

PN6625

Okay. Well, if you don't, you don't, then you're fortunate. Okay. Now, when you said in your evidence-in-chief that there were similarities between the general foreperson and the senior general foreperson but then there were distinct differences between that level and the assistant manager. Do you recall saying that?---I've said so much today.

PN6626

I know, it's difficult sometimes. You did say that in your evidence-in-chief. You were asked a question by Mr Skene with regard to three levels, the GF, the SGF and the assistant manager. I think your answer, and I'm paraphrasing here because we haven't got the transcript, but I think your answer was that you felt there was some similarities between the GF and the SGF but you thought there were distinct differences between that particular level and I mean the supervisory level, and the assistant manager, do you recall saying that?---In regard to responsibility and accountability, yes.

PN6627

Exactly, exactly. That's exactly what you said the difference was. When you say accountability you really mean that pay outcome, don't you?---Which outcome?

PN6628

Sorry, the remuneration outcome?---Paid, get paid.

PN6629

That's what you really mean, isn't it?---As I said before, it can be the remuneration outcome but it can be a ranking system which is also part of the pay system.

PN6630

Yes. Would you just elaborate on that point?---For each of the items that we actually have as a target there's a ranking system that's associated with it. For example, there's three set targets that are set, there's last year's. If you achieve last year's it's worth one point, if you achieve the target for this year it's worth three points, if you get the stretch target it's worth four points. So that's how we rank the performance for each one of those targets.

**** GARRY ELKINGTON XXN MR ADDISON
PN6631

Is this a power train thing or across the board thing?---No, it's across the board.

PN6632

So across the board thing. So you have got one point for last year's targets, three points for this year's targets and four points for the stretch?---Yes, they're not cumulative though.

PN6633

No, okay. Well, last year's target must be cumulative surely?---No, last year's target, for example, gross man hours for our plant was 180, our target was 170,. our stretch was 160 and we achieved something like 154. So we achieved the stretched target set for us last year so the point score for gross amount - sorry, gross for lost time was four points.

PN6634

Last year?---No, for this year - sorry, last year. Sorry, last year, yes, 2005.

PN6635

But that's' worth one point for you this year, is it?---No, it's worth five points for last year - four points for last year, that's it.

PN6636

But last year's target wouldn't affect your remuneration this year would it?---What happens is all those points add up to a certain score level, okay, which is then averaged out. What happens is at the end of that, if you achieve a certain score you are eligible for, for example, pay increase, or if you're below that score you're not eligible.

PN6637

But at the end of the day it all comes down to wages, doesn't it?---No, what
this - - -

PN6638

Or some other - - -?---The purpose of this is not just for wages. The purpose is to monitor and direct the improvements necessary based on performance.

PN6639

Okay. And the accountability proposition, the current if you like is a pay increase. That's correct, isn't it?---No, it's not correct. That's part of it. The current can also be promotional opportunities for the future because it's based on the performance you've achieved.

PN6640

Yes, and promotional opportunities are dealt with by promotion processes, aren't they?---In some respects, yes.

PN6641

Indeed we have just been through T18 which was promotional opportunities?
---Correct.

**** GARRY ELKINGTON XXN MR ADDISON
PN6642

And the assistant manager was in for this particular job. The assistant manager didn't get this particular job, we know that because we know who the successful candidate was. But that's the mechanism for promotion, isn't it?---Not necessarily.

PN6643

Not necessarily?---For example in Mark Maunder's case he has now gone to a job where he is far more comfortable, okay, and his performance has clearly identified that that's the right stream for him. So for example he would see that as a promotional opportunity. It does not entail any remuneration.

PN6644

I didn't suggest it did. What I'm saying to you though is that promotional opportunities are dealt with by interview and by application. That's correct, isn't it, you apply for a promotion?---That's correct.

PN6645

And then you get interviewed, you go through an interview process. Certainly the scores might have some bearing on that but the principal mechanism is the interview, isn't it?---It would be, yes.

PN6646

With regard to your amended witness statement if I can take you to paragraph 19, in paragraph 19 you say:

PN6647

The assistant manager is responsible for the overall management of the shop floor, including counselling and disciplining of employees.

PN6648

What do you mean by that?---For example the supervision don't do the final disciplinary activity for employees, the manager does.

PN6649

That's governed by the certified agreement, isn't it?---Beg your pardon?

PN6650

That's governed by the certified agreement, isn't it?---That's correct.

PN6651

It's on page 52 of the certified agreement, isn't it? Bear with me. Can you just, Garry - - -?---Sorry.

PN6652

Just turn to page 52 if you could, Garry. The counselling sessions are done by the supervisors, the group leaders, the general forepersons, the warnings are carried out by the supervisors, the final written warning by a manager, not an assistant manager but a manager. That's correct, isn't it?---Well, it's got here seen by senior manager/manager, so I assume that would be department or section.

**** GARRY ELKINGTON XXN MR ADDISON
PN6653

Well, the evidence from the AMWUs witnesses with regard to this matter includes them involved in the negotiations for the certified agreement, was that manager didn't mean an assistant manager, it meant a more senior manager?---I can't comment, sorry.

PN6654

You can't comment, that's fair enough. That's fair enough. And you say the assistant manager, Mr Maunder for instance, would be responsible for the management of the shop floor including counselling and disciplinary processes, is that correct? That's what it says at paragraph 19?---That's correct.

PN6655

If you go to paragraph 25, you refer there to Mr Ebenwaldner's statement, you say in the first dot point that:

PN6656

The function of budget forecasting is the responsibility of the plant manager, cost analysts and finance personnel.

PN6657

You're the plant manager, aren't you?---That's correct.

PN6658

A cost analyst and the financial personnel I presume are separate from power train, it will be someone in admin, will it?---No, the cost analyst is part of power train.

PN6659

All right. And what does that person do, I mean what level of management is that person?---It's not a managerial level. It's a - here we go, 4, 4 level.

PN6660

E4 is he?---No, sorry, E5, E5.

PN6661

Okay, so he's a clerk effectively?---Yes.

PN6662

And I don't say that in any derogatory sense. I think the evidence that we've had so far because E5 was a bit strange earlier. I think the evidence was that they were admin people?---He's a specialist. Admin people, he's a specialist in regard to finance.

PN6663

Yes, yes, okay. So he'd be like an accountant?---Yes, but with manufacturing knowledge which is why he is at our plant, which is pretty rare.

PN6664

Okay. So Mr Maunder has no responsibility in that area either?---As I say, this is talking about the forecasting. This is talking about the forecasting that would be given to senior managers, my supervisor which is Mark Dobson in regard to requests for capital budget for example or for department expenses.

**** GARRY ELKINGTON XXN MR ADDISON
PN6665

The matter we spoke about earlier?---Yes, correct.

PN6666

Mr Maunder, Mr Ebenwaldner, the local Italian fitter, they would all be involved in brainstorm sessions to - - -?---They have a role to play in it, yes, but the actual forecasting is carried out by those individuals.

PN6667

Okay, that's fine. The second dot point you talk about a matter we have discussed which is the policy proposition of how much money people can spend.
Mr Ebenwaldner in your particular case, the SGF can spend 1000 bucks, up to 1000 bucks I think it is, is that right?---That's correct.

PN6668

As can the assistant manager?---That's correct.

PN6669

You say that Mr Maunder is accountable and you have inserted the word accountable for adherence to budgets?---That's correct.

PN6670

How is Mr Maunder accountable?---As we talked about before, the assessment, the PDP and the balance scorecard clearly denotes his responsibility and regard it, so in regard, for example, any over budget items he's totally responsible for and therefore obviously we talked about before the assessment at the end of it is a point scoring system, he either achieves target or he does not.

PN6671

So he's held accountable in that fashion?---That's correct.

PN6672

He is told you can spend 10,000 bucks, 100,000 bucks, a million bucks?
---$300,000.

PN6673

Whatever it might be and if he doesn't reach that - or if exceeds that one presumes, then he's held accountable through the STI?---That's part of it, yes. It's also his performance is accountable too in regard opportunities for the future.

PN6674

Yes, he loses points?---Yes, that's correct.

PN6675

Okay. You say in dot point 3 that Mr Ebenwaldner, the SGF that is, must have all ..... related to capital expenditure approved by Maunder. That's not entirely true, is it?---No, that is true. We spoke about it earlier in regard to CER, it has to be signed off.

PN6676

You need to sign off on the capital expenditure budget though, don't you?

**** GARRY ELKINGTON XXN MR ADDISON
PN6677

MR SKENE: I object. I mean these questions have been asked over an hour ago. He has been through this, questions about who has to sign things, it's all been done. It's repetitive.

PN6678

THE SENIOR DEPUTY PRESIDENT: What do you say?

PN6679

MR ADDISON: I am just simply going through the dot points at the end of the witness statement, your Honour, for clarification. It seems to me to be reasonable.

PN6680

THE SENIOR DEPUTY PRESIDENT: How much longer do you think you will be?

PN6681

MR ADDISON: About five minutes.

PN6682

THE SENIOR DEPUTY PRESIDENT: Okay.

PN6683

MR ADDISON: Well, it's dependent. In terms f all the budget allocation
Mr Maunder can't sign off anything above the policy, can he?---No, he can't.

PN6684

No, that's right. Now, I just want to take you to the second dot point on the next page. We have dealt with training and development. Occ health and safety, you say that Mr Ebenwaldner doesn't deal with the occ health and safety rep, that
Mr Maunder does that?---That's correct.

PN6685

Do you know why?---Yes, I do.

PN6686

Yes, it's because the occ health and safety rep doesn't want to deal with
Mr Ebenwaldner, that's true, isn't it?---I think it's basically both he and the OH and S rep have an interaction issue.

PN6687

Yes, that's right. So you have got Mr Maunder dealing with the occ health and safety rep to avoid any difficulties there. That's correct, isn't it?---I have him there but it doesn't necessarily avoid the difficulties.

PN6688

Well, there's nothing wrong with a good active health and safety rep. Now, you say also in the last dot point and I think you say here that both Mr Ebenwaldner and Mr Maunder provide administrative and technical support to maintenance employees after hours?---That's correct.

**** GARRY ELKINGTON XXN MR ADDISON
PN6689

That's the escalation procedures and the - if I can take you to Mr Ebenwaldner's statement just very briefly, his second statement, there's a table attached. Yes, attachment 5 you will see there's 24 calls, can you see that?---That's correct.

PN6690

That's what you're talking about, isn't it?---Yes, that is.

PN6691

You're talking about ringing Ebenwaldner and saying I've got a problem, the compressors won't start or whatever it may be and he provides the technical support?---As do I, as does Mark Maunder, yes.

PN6692

And you say Mark Maunder does too. Bear with me, your Honour. There is nothing further.

PN6693

THE SENIOR DEPUTY PRESIDENT: Mr Skene, how long have you got,
Mr Skene?

PN6694

MR SKENE: A couple of minutes I think, your Honour. There are six things.

PN6695

THE SENIOR DEPUTY PRESIDENT: Sorry?

PN6696

MR SKENE: There are six things but I don't think they will take long.

PN6697

THE SENIOR DEPUTY PRESIDENT: Good.

PN6698

MR SKENE: Would you prefer to adjourn or shall I proceed?

PN6699

THE SENIOR DEPUTY PRESIDENT: No, no, keep going.

PN6700

MR SKENE: Okay, thank you, your Honour.

<RE-EXAMINATION BY MR SKENE [12.53PM]

PN6701

MR SKENE: Mr Addison asked you before about temporary labour in the context of paragraph 25 of your statement and he put to you that it had been agreed between you and Mr Maunder and Mr Ebenwaldner that temporary labour was Mr Ebenwaldner's domain, I think was how he expressed it and you agreed with that proposition and he put to you that he's responsible for it and he agreed with that proposition and you said "Yes, but there's a reason for that". What is that reason?---I would like to explain in some detail. There was a situation where on a Friday evening I went to the maintenance department and discovered that on a Friday afternoon shift there was no supervision, no team leaders and possibly only one or two fitters available to run our operation for the evening, which is insufficient, and on speaking with Mark Maunder I found that he was not aware of that, there was absence, there was RDOs and there was also some training taking place. We couldn't run the operation so I then had to drill down as to what has happened, obviously communication breakdown. We weren't able to support our operation so it was at that point that I had to initiate a meeting between Mark and Gary in how are we going to organise this for the future, who would be responsible and in regard that I then at the meeting indicated to Gary that he would be responsible for the individuals being brought on site and it was his responsibility to ensure that there was sufficient temporary labour for us to keep running. The other point is that I'm aware that Mark Maunder, his section manager would be leaving, Gary was not at that particular time and he would also have to continue with the budget between now and April. So that's why the decision was made that Gary would be totally responsible, although he has had major input into temporary labour arrangements, but he's done most of it in actual fact.

**** GARRY ELKINGTON RXN MR SKENE
PN6702

Mr Addison then asked you some questions about particular temporary labour employees and he asked you about an employee who has been there since May last year ..... has been there since May last year and he put to you that
Mr Ebenwaldner approved that and you answered, "Yes, at that time". What did you mean by at that time?---It depends who you're talking to. If you're talking in relation to, I think I mentioned the name Mark Windsor.

PN6703

Yes?---He has been there for some considerable time supporting us and that has been a combination of work carried out by maintenance and also engineering so we've retained him for that period of time to fulfil those functions.

PN6704

Mr Addison read to you from some evidence of Mr Ebenwaldner's paragraph 2361 and read to you about having several discussions with Mr Ebenwaldner and several discussions with you had to confine roles and he ended reading, you might recall, where he says:

PN6705

We had one meeting after that to start working out a divvy up of the responsibilities -

PN6706

And I just want to read to you what was said after that -

PN6707

divvy up of the responsibilities and it was too hard. It was too difficult for Gary Elkington to assist in that process because of my expertise and knowledge basically. It's very hard to remove a lot of the items off me.

PN6708

So that was the context in which Mr Addison was reading to you. What would you say about that being the purpose of that meeting and its outcome?---The purposes of that meeting in relation to myself was one, to get two individuals that had communication interaction issues in the same room so that they could actually recognise what the issues were from this list. Some of the items on this list are mine. So the purpose was at that meeting not necessarily to divvy them up, it's a case of coming to terms with what the tasks are, how extensive they are, how they relate to one another. For example, the responsibilities for meetings.

PN6709

I see. Now, Mr Addison asked you quite a number of questions about the allocation of budgets and the brainstorming session and wish list in attachment 1 of Mr Ebenwaldner's statement. He asked you about, I think the words he used were the bucket of money and you said, well - he said - sorry. You said then if there's no budget allocation you couldn't approve it. What happens if there has been a budget allocation?---Then I can approve it.

**** GARRY ELKINGTON RXN MR SKENE
PN6710

Nothing further.

PN6711

THE SENIOR DEPUTY PRESIDENT: You're excused, Mr Elkington?---Thank you.

<THE WITNESS WITHDREW [12.58PM]

PN6712

THE SENIOR DEPUTY PRESIDENT: Where are we up to, Mr Skene?

PN6713

MR SKENE: That concludes the evidence in the case I think, your Honour, so I think perhaps if we can deal with submissions this afternoon and my friend perhaps following on return from lunch and we would hope to finish the case today. My friend and I have had a discussion and we think that we can do that this afternoon.

PN6714

THE SENIOR DEPUTY PRESIDENT: I have another two witness statements, are they not being called?

PN6715

MR SKENE: Mr Vadala and Mr Vassallo, no, they're not being pressed, your Honour.

PN6716

MR ADDISON: Your Honour, there's just one document that I seek to hand up.

PN6717

THE SENIOR DEPUTY PRESIDENT: Yes.

PN6718

MR ADDISON: Mr Davis gave evidence with regard to a range of a meetings that had occurred - we might do that after lunch, your Honour.

PN6719

THE SENIOR DEPUTY PRESIDENT: I will adjourn until 2.15.

<LUNCHEON ADJOURNMENT [12.59PM]
<RESUMED [2.37PM]

PN6720

THE SENIOR DEPUTY PRESIDENT: Mr Addison.

PN6721

MR ADDISON: Thanks, your Honour. Your Honour, the document I intended to hand up before lunch we've had some discussions. I hand it up more as an aid than anything else, your Honour. It's simply a chronology. You will recall that when Mr Davis gave evidence he gave evidence of a series of meetings that had occurred over a long period of time with regard to the SGF issue and I simply ask Mr Davis to develop a chronology from his diary. We've agreed that the appropriate heading for the document should be headed Peter Davis Summary of Diary Entries. Yes, Mr Skene has written on this and I'm finding it difficult to read his writing. I quickly point that out, I don't think it's mine.

PN6722

THE SENIOR DEPUTY PRESIDENT: Yes.

PN6723

MR ADDISON: Sorry, I was just making sure my phone was off. Peter Davis Summary of Diary Entries re Meetings and the three paragraphs on the header would be deleted.

PN6724

THE SENIOR DEPUTY PRESIDENT: Yes.

PN6725

MR ADDISON: The matter of the grievances on the final page, there is evidence, specific evidence with regard to the grievance ..... also, your Honour. We say it's in respect to chronology from Mr Davis' diary and Mr Davis says the meetings occurred in his evidence. Mr Skene doesn't necessarily accept that proposition. I think that's probably the best I can say with regard to that. Now, your Honour - - -

PN6726

THE SENIOR DEPUTY PRESIDENT: Look, I will mark it.

EXHIBIT #AMWU2 SUMMARY OF DIARY ENTRIES OF
MR DAVIS

PN6727

MR ADDISON: Yes, thanks, your Honour. Now, your Honour, the application that's currently before the Commission is an application pursuant to section 170LW which obviously falls out of the section 127 application originally. The AMWU for its part says that the position in dispute which is the position in the paint shop should appropriately be classified and covered by the certified agreement. Your Honour, we say the normal principles with regard to section 170LW applications would apply and the Commission would need to determine whether the dispute is a dispute that arises from the agreement and we say it quite clearly does and secondly, apply the normal principles just determine the matter on its merits without rewriting the agreement or without adding anything to the agreement.

PN6728

Your Honour, there are three documents that we say are pertinent in terms of industrial instruments. They are the award, the 1998 award and the relevant extracts from the award are before the Commission as part of the evidence in these proceedings. The other document that we say is pertinent is the existing extant certified agreement which is the Toyota Workplace Agreement 2005. Now, I think there are two. I'm currently working off the Altona agreement, I think there's a Port Melbourne agreement as well. We had that confusion earlier on in the proceedings, but I'm working off the Altona one. I thought that's the one that you've got too.

PN6729

THE SENIOR DEPUTY PRESIDENT: The green one.

PN6730

MR ADDISON: Well, there's two green ones and two blue ones.

PN6731

THE SENIOR DEPUTY PRESIDENT: Is there?

PN6732

MR ADDISON: So I understand and they're slightly - in fact that's wrong for me to say that. They are identical but the pages are often different. I even have disagreement on that point. The delegates tell me - - -

PN6733

THE SENIOR DEPUTY PRESIDENT: Yes, the green one I have got has got Altona on the front.

PN6734

MR ADDISON: Yes, the same as mine, that's correct. And the third document that we say is pertinent is the Toyota Workplace Agreement 2002 and in particular the agreement I have is marked Port Melbourne, Sydney and Regions 2002. I don't know if you have that one or if you have a different one.

PN6735

THE SENIOR DEPUTY PRESIDENT: I have got one for Altona.

PN6736

MR ADDISON: That will do. I have got the one for Altona now.

PN6737

THE SENIOR DEPUTY PRESIDENT: Right.

PN6738

MR ADDISON: I will just check one point before I proceed. Yes. Now, your Honour, the matter in dispute concerns, as I said earlier, the position in the paint shop that was initially filled by Mr Daffy. The evidence in these proceedings indicates that Mr Daffy vacated that position about 14 months prior to the first dispute notification. Mr Daffy acted in the position of general foreperson - sorry, was employed in the position of general foreperson and then was transferred from that position to a position in what's called the kaizen group and the kaizen group is, as the evidence clearly reveals in these proceedings, a continuous improvement type arrangement.

PN6739

After his transfer Mr Kors was put into the position as an acting general foreperson. Mr Kors is normally employed as a group leader and was acting up in that position for almost 12 months. The evidence, and there's a bit of contradiction in the evidence, on the one hand Mr Kors says he raised the fact that his 12 months was coming up with his manager, and his manager says that the manager raised it. Nothing turns on it, your Honour, in my submission except that at the end or close to the end of the 12 months Mr Kors was removed from that position and then following that there were numerous discussions between the parties until about June 2005 and in June 2005 or thereabouts Mr Dobson made a decision not to replace the position with a general foreperson but approached
Mr Tucker, I think it's Tucker, and informed Mr Tucker that he intended to fill the position with a managerial position and then described to Mr Tucker the reasons why he, Mr Dobson, thought that was an appropriate proposition.

PN6740

We say, your Honour, that on a plain reading of the instruments, and by that I mean the two certified agreements, this was a wrong decision. The decision was flawed. We say that the 2005 extant certified agreement is clear and unambiguous in its terms and we say that in the sense of both its coverage in clause 3 of the agreement. Clause 3 of the agreement makes it clear at subparagraph (c) that the employees covered by this certified agreement are those who are members or eligible to be members of the union and are covered by work classifications within the Toyota award 1998 and who are covered by the Toyota award 1998 or the Toyota Australia Professional Engineers and Scientists Consent Award 1992.

PN6741

We also say that the agreement, the 2005 agreement incorporates any terms of the 2002 certified agreement that are not excluded by the operation of the 2005 agreement and we say that arises under clause 2.1 which reads:

PN6742

This agreement shall be read and interpreted wholly in conjunction with the awards and agreements as varied from time to time ...(reads)... apply to relevant employees.

PN6743

And they are the employees that I've just referred to, your Honour -

PN6744

But shall not be incorporated into or form part of this agreement and will operate independently of this agreement by legislation or otherwise ...(reads)... certified agreements are as follows -

PN6745

And then there is a list of awards and certified agreements which includes the 2002 workplace agreement which are referred to. Your Honour, that 2002 workplace agreement contains a provision at appendix F - - -

PN6746

THE SENIOR DEPUTY PRESIDENT: Just before you get to that.

PN6747

MR ADDISON: Sorry?

PN6748

THE SENIOR DEPUTY PRESIDENT: Just before you get to the 2002 agreement.

PN6749

MR ADDISON: Yes.

PN6750

THE SENIOR DEPUTY PRESIDENT: 2.1 says.

PN6751

MR ADDISON: 2.1 of the 2005 agreement?

PN6752

THE SENIOR DEPUTY PRESIDENT: Yes.

PN6753

MR ADDISON: Yes.

PN6754

THE SENIOR DEPUTY PRESIDENT:

PN6755

This agreement shall be read and interpreted wholly in conjunction with the awards and agreements specified below.

PN6756

MR ADDISON: Yes.

PN6757

THE SENIOR DEPUTY PRESIDENT:

PN6758

Which shall continue to apply to relevant employees but shall not be incorporated.

PN6759

So they're not part of the agreement.

PN6760

MR ADDISON: Sorry?

PN6761

THE SENIOR DEPUTY PRESIDENT: I'm just reading what's there.

PN6762

MR ADDISON: Yes. Sorry, I missed what you said, that's all, your Honour.

PN6763

THE SENIOR DEPUTY PRESIDENT: The awards and the agreements, the previous agreements are not part of this agreement.

PN6764

MR ADDISON: Are not incorporated into this agreement but they continue to have a life of their own, as I read the clause.

PN6765

THE SENIOR DEPUTY PRESIDENT: Does that work under the Act?

PN6766

MR ADDISON: Yes, there is no difficulty with that. Section 170LY(1)(b) I think, your Honour.

PN6767

THE SENIOR DEPUTY PRESIDENT: What is it, LY?

PN6768

MR ADDISON: LY, from memory and I think it's probably 1(b) but bear with me, your Honour, while I have a look at that.

PN6769

THE SENIOR DEPUTY PRESIDENT: Okay. While a certified agreement is in operation it has no effect - - -

PN6770

MR ADDISON: On an earlier agreement which has yet to pass its nominal expiry date. The previous agreement has passed its nominal expiry date so the current certified agreement can operate to oust clauses of the previous - I haven't even got there yet.

PN6771

THE SENIOR DEPUTY PRESIDENT: So while a certified agreement is in operation it has not effect to the extent of any inconsistency with another agreement certified before it whose nominal expiry date has not passed. The 2002 agreement nominal expiry date presumably is passed?

PN6772

MR ADDISON: Yes.

PN6773

THE SENIOR DEPUTY PRESIDENT: Yes, 20 March 2005, yes.

PN6774

MR ADDISON: Yes. Yes, I think it works, your Honour. I think section 170LY(1)(b) would work.

PN6775

THE SENIOR DEPUTY PRESIDENT: Well, LX(1).

PN6776

MR ADDISON: Yes.

PN6777

THE SENIOR DEPUTY PRESIDENT: When a certified agreement comes into operation - sorry.

PN6778

A certified agreement comes into operation when it is certified and, subject to this section, remains in operation at all times afterwards.

PN6779

MR ADDISON: Correct.

PN6780

THE SENIOR DEPUTY PRESIDENT:

PN6781

The agreement ceases to be in operation if:
(a) its nominal expiry date has passed; and
(b) it is replaced by another certified agreement.

PN6782

MR ADDISON: Yes, but only to the extent that that certified agreement replaces existing clauses. The certified agreement can state that the previous agreement - and in fact is quite normal, your Honour, for a previous certified agreement to be read in conjunction to and the certified agreement can give another instrument life and that's what the effect of 2.1 in this agreement is, is to give the 2002 agreement life but only to the extent that it is not as explicitly as set by the 2005 agreement.

PN6783

THE SENIOR DEPUTY PRESIDENT: But what does it give its life as, common law contract, does it?

PN6784

MR ADDISON: It has continuing effect as a certified agreement, your Honour, we say.

PN6785

THE SENIOR DEPUTY PRESIDENT: And what do you rely on that for that, LY(1)(b), do you?

PN6786

MR ADDISON: Well, LX and LY(1)(b), yes. Yes, it has effect to the extent of any inconsistency with another agreement certified before it. And LY(1)(a), your Honour -

PN6787

Subject to this section, it prevails -

PN6788

That is, the current certified agreement prevails, over an award or an order of the Commission, that's the previous agreement.

PN6789

THE SENIOR DEPUTY PRESIDENT: Yes, but we're not talking about an award or order. So you say that the 2005 agreement doesn't replace the 2002 agreement?

PN6790

MR ADDISON: It does to the extent - well, the 2005 agreement gives life to the 2002 agreement in its terms. It clearly says that the 2002 agreement continues to apply to the relevant employees. That's clearly the intention of this agreement and clearly the intention of the parties, that that agreement continue to apply. We say that it does but only to the extent that there is no inconsistency with the 2005 agreement.

PN6791

THE SENIOR DEPUTY PRESIDENT: Yes, okay.

PN6792

MR ADDISON: So the 2005 agreement - if the 2002 agreement had an allowance of 10 cents for whatever it might be, but the 2005 agreement then made the allowance 9 cents, then the 2005 agreement would apply to that extent.

PN6793

THE SENIOR DEPUTY PRESIDENT: So you say it gives life to the 2002 agreement by, "legislation or otherwise"?

PN6794

MR ADDISON: Yes.

PN6795

THE SENIOR DEPUTY PRESIDENT: And in terms of legislation you rely on section 170LX and LY?

PN6796

MR ADDISON: Yes.

PN6797

THE SENIOR DEPUTY PRESIDENT: And in terms of otherwise, contract?

PN6798

MR ADDISON: Indeed. It would have to apply in terms of common law contract, your Honour.

PN6799

THE SENIOR DEPUTY PRESIDENT: Yes.

PN6800

MR ADDISON: And we say there is a clear commitment in the 2002 agreement and a clear requirement under the 2002 agreement on page 92, subparagraph (k), your Honour.

PN6801

THE SENIOR DEPUTY PRESIDENT: And when was it certified? Right, so by July 2006 I will be looking forward to, or one of my colleagues will looking forward to - I don't think so unless it's going to happen very shortly, the 2.2 consolidation of the previous agreements and their incorporation in this agreement?

PN6802

MR ADDISON: I think other things may overtake by July 2006 in any event, your Honour, and I think certified agreements are no longer certified by July 2006. On my reading of the new Act they're simply filed.

PN6803

THE SENIOR DEPUTY PRESIDENT: So you've got a lot of work to do between now and whenever. Yes.

PN6804

MR ADDISON: One presumes that this agreement will continue under the current certified agreement - current arrangements until it passes its nominal expiry date, but I wouldn't swear on that at this point in time, your Honour, because we haven't seen the final copy of the new Act.

PN6805

THE SENIOR DEPUTY PRESIDENT: It would seem it might be a little difficult to achieve 2.2(2)?

PN6806

MR ADDISON: Probably, probably.

PN6807

THE SENIOR DEPUTY PRESIDENT: Anyway - - -

PN6808

MR ADDISON: If we want to know what the new Act says I suppose we should really ask Freehills, they might be able to tell us. But anyway, that's - - -

PN6809

MR SKENE: Come on.

PN6810

THE SENIOR DEPUTY PRESIDENT: Yes, sorry, I interrupted you when you were incorporating or giving life to the 2002 agreement, yes.

PN6811

MR ADDISON: Yes.

PN6812

THE SENIOR DEPUTY PRESIDENT: And you were going to go to there I think.

PN6813

MR ADDISON: Yes, we say that the appendix at page 92 and I think that's appendix F, your Honour.

PN6814

THE SENIOR DEPUTY PRESIDENT: Page 92, yes.

PN6815

MR ADDISON: Is it F? It's appendix F which starts at page 86, subparagraph 3(k) requires that as supervisory positions become available or become vacant there will be advertising and filled in accordance with the internal recruitment policies. Now, your Honour, by the actions of the company the position became vacant. The company determined that it would transfer Mr Daffy from the GFs position to the kaizen position. The company determined then to fill the position of Mr Kors for a period. When it became apparent, and the evidence, uncontested evidence is that if a position is filled for more 12 months then effectively it became permanent in any event, so when it came close to the 12 month period the company made a determination to remove Mr Kors from that position, ipso facto the supervisory position became vacant.

PN6816

We say there was an obligation on the company at that point in time to advertise and fill the position according to the normal recruitment policies which are incorporated in the agreement, in both agreements as it happens. So we say there was an obligation at that point in time for the company to fill the position. The company determined not to do that for its own reasons and determined to replace the position, as I say, with a position of assistant manager. That gave rise to the dispute which was filed by Mr Tainsh and gives rise to these proceedings in effect.

PN6817

Now, your Honour, we say that the Commission should find that that position falls under the auspice of appendix F, subclause 3(k) and the Commission should determine that the position ought be filled by the company using the normal procedures. The evidence with regard to these proceedings has gone well beyond that of course, your Honour. Because of the non compliance with the certified agreement by the company that led to some industrial activity by members of the AMWU Technical and Supervisory Division which then formed the genesis of these proceedings.

PN6818

Your Honour would recall that in the early part of these proceedings the parties were asked to go in and have some discussions with regard to the particular position. A meeting occurred and Mr Dymock has given evidence with regard to the meeting that occurred, I been so advised but Mr Dymock prepared a document with regard to that meeting for the position description of the assistant manager. The parties met, at that point in time the position of the union was that the position should be filled by an assistant manager - general foreperson, my apologies. The company's position was that it should be filled by an assistant manager.

PN6819

As a compromise position it was put by the AMWU that the position could be, if the company was right and there were additional responsibilities, could be filled by a senior general foreperson, that the AMWU was of the view that all of the duties that needed to be performed in the role according to the company fell within the scope and ambit of the third document, or the third instrument that we rely on which is the award and, your Honour, the word definitions are before you and you will see at - - -

PN6820

THE SENIOR DEPUTY PRESIDENT: What exhibit is it?

PN6821

MR ADDISON: Sorry?

PN6822

THE SENIOR DEPUTY PRESIDENT: What exhibit is it, exhibit?

PN6823

MR ADDISON: I think it's AMWU19 but I would be corrected on that.

PN6824

THE SENIOR DEPUTY PRESIDENT: 19.

PN6825

MR ADDISON: Yes, 19, is it?

PN6826

THE SENIOR DEPUTY PRESIDENT: 19.

PN6827

MR ADDISON: 19, yes. Now, your Honour, there are three levels of supervision in the award. Those levels of supervision culminate in the level 3 supervisor which is the senior general foreperson. As a normal proposition that position would require formal qualifications at the diploma level or skills and knowledge equivalent. The definition of the senior general foreperson is that the position is responsible for the supervision of levels 1 and 2 supervisors or the supervision of levels 1 or 2 supervisors of wages employees, or, and we say this is pertinent to the proposition that's being put, the supervision of trade and/or non trade wages employees and be responsible for the planning management and direction of major production or trades operation.

PN6828

We say that the scope of the award covers the range of duties that the employer says need to be performed within this position to be filled.

PN6829

THE SENIOR DEPUTY PRESIDENT: Does this argument only arise if it's found that Toyota had an obligation to - - -

PN6830

MR ADDISON: I guess I'm putting these things in the alternative. I mean if the first step - if you're satisfied that the first step that Toyota was obliged to fill the position under the terms of the 2002 agreement, obviously you would need to go no further.

PN6831

THE SENIOR DEPUTY PRESIDENT: Yes.

PN6832

MR ADDISON: And it would stop at that point in time one presumes, unless you wanted to make some comments with regard to other matters.

PN6833

THE SENIOR DEPUTY PRESIDENT: Yes.

PN6834

MR ADDISON: But I guess what we say is first of all there was an obligation to fill and it should have been done. It wasn't, that gave rise to a dispute. Toyota have put an alternative position to what we say was their obligation under the 2002 agreement. We've then put a compromised position in response to that alternative position which has been rejected which then leaves us with the current dispute that we've got as - - -

PN6835

THE SENIOR DEPUTY PRESIDENT: So on the assumption there's no obligation to advertise and fill, then - well, the argument there's no obligation to advertise and fill is based on some notion of, to put it loosely, operational requirements, is there?

PN6836

MR ADDISON: No, no. We don't say that.

PN6837

THE SENIOR DEPUTY PRESIDENT: I think there was another part of the agreement on which Toyota kept relying.

PN6838

MR ADDISON: Well, I expect my friend would say, I expect my friend would say that the normal requirements are that the division or the department identify a need and then they go from there. We say that is wheezingly around the terms of the agreement. We say the need is clear, your Honour.

PN6839

THE SENIOR DEPUTY PRESIDENT: I understand that.

PN6840

MR ADDISON: We say the company's action have resulted in the position becoming vacant, that that in itself is the need. There is clearly a need to put a person in the line, even Toyota considers that, and Toyota would say that the appropriate person to be put in the spot is an assistant manager but they can't say there isn't a need. That defies logic, your Honour. We say it absolutely defies logic, there is clearly a need. Once that need is established, if the 2005 agreement gives life to the 2002, which we say it does, and there's nothing in the 2005 agreement and we say there isn't, which contradicts appendix F(3)(k), then we say ipso facto, end of story ..... position.

PN6841

THE SENIOR DEPUTY PRESIDENT: But is there anything in the 2002 agreement about need?

PN6842

MR ADDISON: That's the normal recruitment policy which says, and I concede, absolutely concede and it says the same in both agreement as I understand it, your Honour, that the first step is to establish the need.

PN6843

THE SENIOR DEPUTY PRESIDENT: Yes, which clause is that?

PN6844

MR ADDISON: In the 2002 agreement it's on page 113, appendix M.

PN6845

THE SENIOR DEPUTY PRESIDENT: N?

PN6846

MR ADDISON: M. M for Maurice. 28.3 in the new agreement, your Honour.

PN6847

THE SENIOR DEPUTY PRESIDENT: Sorry, what's in the 2005, 28.?

PN6848

MR ADDISON: 28.3 which is on page 36, your Honour, and that's a selection of permanent group leader, general foreperson or senior general foreperson positions. Now, the first box in the flow chart clearly says establish needs. Then it goes on to say it can be filled by rotation or restructure. If you look at the circumstances surrounding this dispute, your Honour, you've had a position - - -

PN6849

THE SENIOR DEPUTY PRESIDENT: 28?

PN6850

MR ADDISON: 28.3.

PN6851

THE SENIOR DEPUTY PRESIDENT: Yes, hang on. Yes, establish needs.

PN6852

MR ADDISON: Yes, the need is established, there can be no dispute on that point, your Honour. The need for a person in the position is apparent and it is clear.

PN6853

THE SENIOR DEPUTY PRESIDENT: So you concede that appendix F(3)(k) operates in conjunction with appendix M in the 2002 and 28.3, do you?

PN6854

MR ADDISON: Your Honour, if I could take you to the 1999 agreement which I think you have got a copy of.

PN6855

THE SENIOR DEPUTY PRESIDENT: Yes, the white one.

PN6856

MR ADDISON: Sorry?

PN6857

THE SENIOR DEPUTY PRESIDENT: The white one.

PN6858

MR ADDISON: The white one.

PN6859

THE SENIOR DEPUTY PRESIDENT: The white Altona one.

PN6860

MR ADDISON: Now, you will see that this agreement is also given life by the clause 2.1 of the 2005 agreement. If I can take you to page 72, once again there's a similar clause, it's the second box point. Box point 72. Which one have I got? I've got Port Melbourne. Which one have you got, your Honour?

PN6861

THE SENIOR DEPUTY PRESIDENT: I've got Altona.

PN6862

MR ADDISON: You've got Altona, you've got Altona. Sorry, we have page issues apparently.

PN6863

THE SENIOR DEPUTY PRESIDENT: Yes.

PN6864

MR ADDISON: 74 on yours, your Honour.

PN6865

THE SENIOR DEPUTY PRESIDENT: Yes.

PN6866

MR ADDISON: And the second box point:

PN6867

Further agree that where appropriate the position will be maintained based on the position to senior general foreperson.

PN6868

THE SENIOR DEPUTY PRESIDENT: Yes, well, that's an SGF.

PN6869

MR ADDISON: Yes -

PN6870

will be based on organisational requirements or decisions made to alter the organisation - - -

PN6871

THE SENIOR DEPUTY PRESIDENT: We're talking about a GF.

PN6872

MR ADDISON: Yes, yes.

PN6873

THE SENIOR DEPUTY PRESIDENT: See, I don't know whether you argue this, but - - -

PN6874

MR ADDISON: I withdraw that about the 1999 agreement, sorry.

PN6875

THE SENIOR DEPUTY PRESIDENT: I don't know whether - I'm unclear whether you say appendix F(3)(k) in the 2000 agreement - - -

PN6876

MR ADDISON: 2002 agreement.

PN6877

THE SENIOR DEPUTY PRESIDENT: Yes, 2002 agreement, sorry.

PN6878

MR ADDISON: Yes.

PN6879

THE SENIOR DEPUTY PRESIDENT: Is to be read in conjunction with appendix M or whether you say appendix M is about the initial establishment of a position and then once established if it becomes vacant it has to be filled.

PN6880

MR ADDISON: Yes, we'd say the second rather than the first proposition you put, your Honour. However, we - - -

PN6881

THE SENIOR DEPUTY PRESIDENT: Well, then they're separate, they're not intertwined in that submission.

PN6882

MR ADDISON: We say this, if there's a position that falls vacant that it needs to be filled, there needs to be proper recruitment policies. We say there's no need to establish a need for that position because the need is established by its very existence.

PN6883

THE SENIOR DEPUTY PRESIDENT: Yes.

PN6884

MR ADDISON: We say for - no, I withdraw that. There is a need by existence so if a need does not need to be established for a new position the need may well need to be established, but for an existing position it doesn't.

PN6885

THE SENIOR DEPUTY PRESIDENT: Yes, yes.

PN6886

MR ADDISON: In the circumstances of this dispute you have got a position which is filed by Daffy, Daffy moves.

PN6887

THE SENIOR DEPUTY PRESIDENT: Yes.

PN6888

MR ADDISON: The company by its conduct of putting Kors into the position accepts there's a need for a person in that position and it's a supervisory position that Kors acts as the supervisor and Kors does that for, I think it was a fortnight short of 12 months, your Honour, or it might be three weeks short of 12 months.

PN6889

THE SENIOR DEPUTY PRESIDENT: Yes.

PN6890

MR ADDISON: He is moved simply because if he stays there he becomes a permanent de facto.

PN6891

THE SENIOR DEPUTY PRESIDENT: You will get your turn, Mr Skene.

PN6892

MR ADDISON: He is moved out of it, the position is still vacant. The position is there. We say the terms of the certified agreement require at that point for the position to be advertised and filled, as per the 2002 agreement.

PN6893

THE SENIOR DEPUTY PRESIDENT: Yes.

PN6894

MR ADDISON: Obviously Toyota would need some sort of process to fill it, obviously they would need to put out a job ad, they'd need to do an interview. They would need to do all the normal things that people need do to fill the position.

PN6895

THE SENIOR DEPUTY PRESIDENT: Yes, but appendix F(3)(k) means they must fill it.

PN6896

MR ADDISON: Yes, that's our submission, your Honour.

PN6897

THE SENIOR DEPUTY PRESIDENT: Yes, okay. Is the extension of that submission that they can never?

PN6898

MR ADDISON: Sorry?

PN6899

THE SENIOR DEPUTY PRESIDENT: Is the extension of that submission that they can never abolish the position because it would be in breach of the agreement?

PN6900

MR ADDISON: That's right, not while the agreement is extant. But clearly and agree the very nature of agreement is to limit or to extend the parties rights as opposed to the award or opposed to any other instrument. If there is an agreed position and then people breach, then there's obviously here under section 178 for people to be prosecuted and we say the effect of F(3)(k) is to - well, is an absolute commitment that where supervisory positions fall vacant they would be advertised and filled. So that's our submission, your Honour. If you're against on that then we move onto the next point, but if you're with us on that we say that's the point you stop, because you simply say - - -

PN6901

THE SENIOR DEPUTY PRESIDENT: So if I get to the point where I say, well, they can be abolished?

PN6902

MR ADDISON: Yes.

PN6903

THE SENIOR DEPUTY PRESIDENT: And a new position created, you say the new position should be an SGF?

PN6904

MR ADDISON: Your Honour, the SGF only arose in the context of the discussions as a compromise. Our original dispute - - -

PN6905

THE SENIOR DEPUTY PRESIDENT: Before you start on that.

PN6906

MR ADDISON: Sure.

PN6907

THE SENIOR DEPUTY PRESIDENT: I don't want to cut you off.

PN6908

MR ADDISON: No, no, that's okay.

PN6909

THE SENIOR DEPUTY PRESIDENT: But if I come to the conclusion that they can get rid of the position and create a new position for whatever reason, to then go on to say and the new position should be a GF - - -

PN6910

MR ADDISON: SGF.

PN6911

THE SENIOR DEPUTY PRESIDENT: Well, see, that's why I asked, because I thought the logical conclusion must be that if I came to the former conclusion that they can do it and they can create a new position then you would argue the new position should be a SGF, because if you were arguing it should be a GF then it seems to suggest that why would they abolish and recreate.

PN6912

MR ADDISON: Well, I mean there's very little logic in this whole exercise, your Honour, from where any of us sit I guess. They want to abolish a GFs position and replace it with an assistant manager. We say our dispute was about a GFs position. We say the dispute arose because they did not comply with their obligations and I'm sure they'd like to say that they're not their obligations but just for the purposes of this moment we say they haven't complied with their obligations. To respond to their alternative proposition we simply put a compromise position.

PN6913

We looked at the job description which had been developed and we had the meeting on 9 September of last year with regard to that and we said, well, all right, if you say that this has got more responsibilities than a GF, we say that SGF covers the field of that work and I think the letter that I wrote following that meeting is before your Honour in these proceedings in any event. You will recall that following the meeting I wrote to yourself, I think I copied it to Ms Vox or I ..... could have written to Ms Vox and copied it to you, your Honour, I can't entirely be sure at this point in time, but a letter was written which has never been contradicted by Toyota and the letter, you will recall, was that we had the meeting, we discussed the functions.

PN6914

There was no real argument about the job, no real argument about the duties. Where the argument arose was on the terms of remuneration, ie., at risk or not at risk, that the award position would have their wages and conditions governed by the agreement, whereas the assistant manager so far as Toyota are concerned would have the at risk component. I think it's the STI in Mr Dymock's witness statement, and the award coverage. They were the only two issues that were in dispute between the parties at that point in time, your Honour, and I think that letter was sent to you mid September. I would be corrected on that, your Honour, but it was around about that time period.

PN6915

Now, if you're against us on the first proposition and if you come to the conclusion that Toyota can abolish the position - sorry, let me rephrase that. If you come to the conclusion that we're wrong about the obligations on Toyota under the 2002 agreement read in conjunction with the 2005 agreement and the obligation to replace the supervisory position, then we say the next step you must take is an assessment of the work to be done. We say the Commission ought be very, very slow and very reluctant to remove a class of employees from coverage of an industrial instrument.

PN6916

We say the Commission ought be properly convinced that the work a person is doing is not captured by the instrument. Now, the certified agreement, the 2005 certified agreement, once again at clause 2.2, builds in the award and it builds into the award in exactly the same way as it builds in the 2002 agreement because the words are consistent for both. But the award is well and truly captured we say under clause 3(c), or should I say, the employees that are to be covered by this instrument are defined clearly in clause 3(c), and they are the employees who are eligible to be members of the AMWU and any other union that might be party to the agreement and who are performing work which is covered by work classifications within the award.

PN6917

THE SENIOR DEPUTY PRESIDENT: Yes.

PN6918

MR ADDISON: Now, your Honour, all of these LW applications tend to turn on their own facts. We say that Toyota, if they want to exclude work from the certified agreement, ought to convince the Commission that the work is properly not covered by the award rather than the other way around. We say the assumption that the Commission should bring when examining instruments is that the work is in fact covered by the agreement and the award and the onus is properly on the employer to demonstrate that it's not covered by the award.

PN6919

The award in its terms incorporates management functions and that's the definition I took you to in appendix D at page 124 of the award and the relevant definition for a senior general foreperson, a classification covered by the terms of the award is supervision of trade and non trade employees, be responsible for planning management and direction of major production or trades operations. The evidence that you have before you in these proceedings in my submission shouldn't convince you that the classification proposed, the assistant manager, is in fact anything more than or carrying out other than that which is described in that definition.

PN6920

THE SENIOR DEPUTY PRESIDENT: Which definition, this is the level 3?

PN6921

MR ADDISON: Level 3 under sub (c).

PN6922

THE SENIOR DEPUTY PRESIDENT: Yes.

PN6923

MR ADDISON: The evidence that's been presented by the company at its - well, the evidence that's presented by the company and Mr Elkington gave evidence this morning with regard to - you will recall he talked about two parallel lines. He talked about the assistant manager as he saw it, being responsible for or being able to do all of the work that the SGF did, the supervisory work.

PN6924

THE SENIOR DEPUTY PRESIDENT: Yes.

PN6925

MR ADDISON: Also the assistant manager doing some planning and doing some management functions. Now, he described those management functions as these, feedback on proposals for improvement, implementing strategies, to put in place plans, conducting brainstorming sessions with regard to developing wish lists for finances and that was about it. Now, the evidence throughout the proceedings has not gone any higher than that evidence that Mr Elkington put this morning. Mr Nicolaides in his evidence described management as the capacity to change the rules if you like, change the structures, and that's supervision work within the structures and I think that's effectively been the position that people have come through throughout this period of evidence.

PN6926

THE SENIOR DEPUTY PRESIDENT: Just under the level 3 definition.

PN6927

MR ADDISON: Yes.

PN6928

THE SENIOR DEPUTY PRESIDENT: Supervisors, take the 3(a), levels 1 or 2 supervisors, are they general foreperson and group leader?

PN6929

MR ADDISON: Group leader is the level 1, the general foreperson is level 2.

PN6930

THE SENIOR DEPUTY PRESIDENT: Right, hang on.

PN6931

MR ADDISON: And then the SGF is level 3.

PN6932

THE SENIOR DEPUTY PRESIDENT: Yes, okay. So level 1 is group leader.

PN6933

MR ADDISON: Yes.

PN6934

THE SENIOR DEPUTY PRESIDENT: And level 2 is the GF.

PN6935

MR ADDISON: Yes.

PN6936

THE SENIOR DEPUTY PRESIDENT: Now, this SGF has got under them group leaders?

PN6937

MR ADDISON: Generally, yes.

PN6938

THE SENIOR DEPUTY PRESIDENT: No, no, the one we're talking about.

PN6939

MR ADDISON: Sorry, the paint shop?

PN6940

THE SENIOR DEPUTY PRESIDENT: Yes.

PN6941

MR ADDISON: Yes, they would have group leaders, yes.

PN6942

THE SENIOR DEPUTY PRESIDENT: Right. So they don't come within level 3(c)?

PN6943

MR ADDISON: In our submission they do.

PN6944

THE SENIOR DEPUTY PRESIDENT: Well, it doesn't talk about the supervision of group leaders there. It talks about the supervision of trade or non trade wages employees.

PN6945

MR ADDISON: Supervision of trade or non trade wages employees and be responsible for planning management and direction of major production or trades operations.

PN6946

THE SENIOR DEPUTY PRESIDENT: yes.

PN6947

MR ADDISON: Yes.

PN6948

THE SENIOR DEPUTY PRESIDENT: Well, this definition of senior general foreperson seems to envisage at (a) someone who has got under them group leaders or general foreperson as someone who has got under them group leaders or general forepersons and wages employees.

PN6949

MR ADDISON: Yes.

PN6950

THE SENIOR DEPUTY PRESIDENT: Or someone who doesn't have group leaders and general forepersons but has trade and non trade wages employees only and is responsible for planning management, et cetera.

PN6951

MR ADDISON: Your Honour, I see what you say, I hear what you say. We say the customary proposition and take Mr Ebenwaldner for instance, he has all of those functions and the evidence is clear that he has level 1 and 2 supervisors and wages employees and is carrying out planning management functions.

PN6952

THE SENIOR DEPUTY PRESIDENT: Yes.

PN6953

MR ADDISON: So we say the evidence that's before you - - -

PN6954

THE SENIOR DEPUTY PRESIDENT: Perhaps he's wrongly classified.

PN6955

MR ADDISON: Sorry?

PN6956

THE SENIOR DEPUTY PRESIDENT: Perhaps he's wrongly classified.

PN6957

MR ADDISON: Perhaps he is, your Honour, perhaps he is.

PN6958

THE SENIOR DEPUTY PRESIDENT: Yes, okay.

PN6959

MR ADDISON: So your Honour, we say - - -

PN6960

THE SENIOR DEPUTY PRESIDENT: You still say this person comes under level 3(c)?

PN6961

MR ADDISON: Yes. As a compromise, your Honour, though.

PN6962

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that.

PN6963

MR ADDISON: Understanding that the dispute in its genesis was not a dispute about SGF. SGF was put as a compromise position.

PN6964

THE SENIOR DEPUTY PRESIDENT: Yes, I understand.

PN6965

MR ADDISON: Now, we would say, as I said earlier, your Honour, that the evidence that the company seeks to present is of a person who would on the basis of their evidence in any event fall under the definition of level 3(c), that the person there talking about the person that they describe would be in all senses of the word a supervisor rather than a manager who may exercise some managerial functions but those managerial functions are capable of being captured by the award definition in any event and therefore should properly be classified under the terms of the certified agreement. Now, your Honour, we say also that the evidence demonstrates that this attempt to reclassify the position is part of an overall strategy to reduce award coverage in any event on the plant.

PN6966

The evidence of Mr Dymock is that during the negotiations for the certified agreement or just prior to the negotiations for the certified agreement actually, the company put a vision document and that's attached to Mr Dymock's witness statement, and that vision document was aimed at abolishing the SGF position. It's clear from the evidence that that position was rejected and there's a counter document which was supplied from the AMWU T and S division which rejected that proposition from the company.

PN6967

Now, there were continuing negotiations around the position and Mr Dymock acknowledged that as part of those negotiations, clause 26 I think it is of the certified agreement, the extant certified agreement was included into the certified agreement. Clause 26 once again is a commitment that where appropriate the SGF position but maintained based on business requirements where it's proposed not to maintain an SGF position and that includes promotions, your Honour.

PN6968

The TMCA will consult the senior employee representatives where there is no agreement the PRC process will be followed and that PRC process takes you through the senior delegates, through the officials and into the Commission. Well that process has not been followed.

PN6969

THE SENIOR DEPUTY PRESIDENT: Well, hang on, we don’t know the dispute position do we, that's what we're arguing about?

PN6970

MR ADDISON: Well, the arguments developed for that point, your Honour, based on the aspects of that point earlier. The dispute, the original disputes of that are GF. That was about an assistant manager and then there's a compromise position the AMWU put the SGF position on.

PN6971

THE SENIOR DEPUTY PRESIDENT: But this is about where it's proposed not to maintain an SGF position?

PN6972

MR ADDISON: Including promotions, your Honour.

PN6973

THE SENIOR DEPUTY PRESIDENT: What they're proposing is not to maintain a GF?

PN6974

MR ADDISON: But that's including promotions, your Honour.

PN6975

THE SENIOR DEPUTY PRESIDENT: Why is including promotions mean?

PN6976

MR ADDISON: Well, as we said earlier, the original dispute was about a GF. The company wished to abolish that position on the basis of some higher responsibilities. We put the proposition of an SGF which would in effect be a promotion for the GFs position.

PN6977

THE SENIOR DEPUTY PRESIDENT: Yes, okay. But the clause in any instance just leads you back effectively into where we are.

PN6978

MR ADDISON: I think that's right. Sorry, your Honour, as I said, it's calling from the evidence which support the proposition that there is a long term strategy to reduce the award coverage on the plant, that the position of SGF is slowly but surely being abolished. There are eight SGFs left I think and the evidence before you was that about two of them are in effect carrying out SGF duties. The other six have been sidelined into clerical areas and are effectively doing clerical work, that the assistant manager position is being developed and is being used to increase the SGF level. The evidence from - the organisational charts that were attached to Mr Tainsh's witness statement show that development we seek. We say it shows the progression from section manager with assistant managers reporting in to over a period of time bringing them into the same level and then pushing the senior general floor persons towards the assistant manager and the assistant manager picking that up.

PN6979

We say that's further supported by the evidence of Mr Elkington this morning with a development of a new managerial position in the middle between the assistant manager and the plant manager. I think Mr Elkington described himself as the plant manager. So you have a position where traditionally there'd been the - and please excuse the terms, I'll use the current terms I think, the plant manager, a department manager and then the supervisory ranks to where now you have - and the three supervisory ranks where you have developing today is the position of two supervisory ranks, the GL and GF. The abolition of the SGF and then the new position, if I can put it in those terms of the assistant manager and then the section manager replaced by the department manager and then the plant manager on the top.

PN6980

THE SENIOR DEPUTY PRESIDENT: Yes.

PN6981

MR ADDISON: We say that there is a clear proposition there of the assistant manager simply filling the void left by the abolition of the SGF and is in fact doing the work of the SGF and that work is properly covered by the terms of the award and should continue to be covered by the terms of the award. So, we say, that the assistant manager in any event should be covered by the certified agreement not by - that the current arrangement for assistant managers is improper.

PN6982

THE SENIOR DEPUTY PRESIDENT: Is that because you say they fall within the definition of SGF within level 3(c)?

PN6983

MR ADDISON: Correct.

PN6984

THE SENIOR DEPUTY PRESIDENT: Yes.

PN6985

MR ADDISON: The evidence at its highest, your Honour, the evidence of the company would suggest that one person, Mr Mulhall, may have knew something that other people didn’t know in terms of management responsibilities. The evidence of the company is - well, let me withdraw that and start again. The evidence of the company with regard to functions of the assistant manager is this, that the assistant manager has an at risk pay regime and that at risk pay regime is governed by targets in the balanced score card or - - -

PN6986

THE SENIOR DEPUTY PRESIDENT: Okay.

PN6987

MR ADDISON: I think that's the way they put it. That the targets which are in the balanced score card are in facts targets which are given to the assistant manager. They are targets which cascaded down from on high. I think the evidence clearly is that Mr Dobson is given targets as the manufacturing no 2 general manager. I think that's his title. Mr Dobson then has discussions with his three plant managers and there can be some negotiation between the four of them but overall the targets must be met. The negotiation and the evidence supports this proposition, we say very clearly, the negotiation is not about the targets themselves, the negotiation is about the divvy up between the three plants and that was confirmed again this morning by Mr Elkington who in his said, he was having to negotiate with Mr Dobson but the target is a target, I might be able to offset it against the plant down the road but the target is the target.

PN6988

So the target is pretty set at that level even though there is some scope for negotiation and then from that level it is simply handed down to the next lower rung until it gets to the last level of ..... payment which is the assistant manager. Now, the evidence at this stage is that the assistant manager was simply given the targets and told they're the targets he or she is to meet. If the person meets the target then there is some benefit in terms of remuneration. If the person does not meet the target then that benefit is not there and if the person exceeds the target the benefit might be something better. Now, the evidence with regard to that matter was that if you reach your targets you could get up to 7 per cent in terms of STI and that was evidence of Mr Dymock.

PN6989

The evidence of Mr Elkington this morning, he gave evidence that in fact he was meeting stretch targets on a couple of occasions was he's now had 7 per cent. That was what he said in the witness box this morning, but put that aside. People are judged against the targets. In terms of the assistant manager's capacity to change the rules in which the assistant manager works, on the evidence before the Commission there is none. On the evidence before the Commission there is no capacity for the assistant manager to change the ground rules upon which he or she works.

PN6990

THE SENIOR DEPUTY PRESIDENT: What do you mean by the ground rules?

PN6991

MR ADDISON: Well, there's an assertion from the company that the assistant manager is a different creature for a supervisor because the assistant manager can make decisions which change the rules under which they work. They can, for instance, spend money. That's the assertion. When it's tested by the evidence we find that's not correct, the assistant manager can't spend money to any greater extent that the supervisor can. The assistant manager is confined within the same constraints as a supervisor and the evidence of Mr Elkington this morning where we can pay Mr Mulhall and Mr Ebenwaldner in terms of that particular criteria, they're identical. They're identical it's been exactly the same up to $1,000.

PN6992

That's not factoring in the fact that prior to these proceedings being filed,
Mr Ebenwaldner, who is a supervisor, clearly a supervisor, clearly covered by the certified agreement, clearly covered by the award can spend $10,000. It's significantly more than of an assistant manager, until he put his witness statements in these proceedings and it became clear that that's what he could do. Once that occurred then Toyota moved to chop it off and that's in evidence before you too, your Honour, that’s AMWU16, I think, and they're the emails from SAP, I think its SAP, S-A-P. So Mr Ebenwaldner saying that he's delegation level at put off. Now, the spend criteria is one that's been put as some evidence that the assistant manager exercises managerial authority rather than supervisory authority. The evidence also is that you've got clerks who've got the same level of delegation.

PN6993

You've got two clerks and evidence was given this morning that they've been - they have the same delegation level. You have a technical officer who has the same level of delegation. It seems that the delegation.

PN6994

MR SKENE: No I didn’t say that.

PN6995

MR ADDISON: Sorry?

PN6996

MR SKENE: I didn’t say that.

PN6997

MR ADDISON: My friend says there is no evidence of that. I'm not sure if he's right there. I recall putting to the witness this morning about the technical officer, but I thought he had agreed with me but - - -

PN6998

THE SENIOR DEPUTY PRESIDENT: But is the a summation of your submission that what this position does and indeed what the company would say, the position does in terms of management falls within the broad definition of planning management and direction within 3(c)?

PN6999

MR ADDISON: Indeed, yes.

PN7000

THE SENIOR DEPUTY PRESIDENT: Well, if that be the case then the first of 3(c) becomes critical doesn’t it?

PN7001

MR ADDISON: The first part of 3(c)?

PN7002

THE SENIOR DEPUTY PRESIDENT: Yes.

PN7003

MR ADDISON:

PN7004

Supervision of trade, non trade wages employees will be responsible for -

PN7005

The evidence is that this person would be doing that.

PN7006

THE SENIOR DEPUTY PRESIDENT: Well, they're not, are they? They're responsible for the supervision of the GLs.

PN7007

MR ADDISON: The evidence before you, your Honour, as I understand the evidence and the evidence of Mr Elkington this morning was that these people would do everything the SGF would do and they would supervise wages employees and GLs and GFs.

PN7008

THE SENIOR DEPUTY PRESIDENT: Well, if they're also doing planning management and direction, and they're supervising the GLs, and supervising the trades and non trades, what are the GLs doing?

PN7009

MR ADDISON: Your Honour, with six levels, I answer the question with a question, Mr Tucker or Mr Elkington both gave evidence that they were responsible for 300 odd people and they had two levels of management below them. The evidence is that the department manager is responsible for somewhere in the vicinity of 60 people and the department manager has an assistant manager.

PN7010

THE SENIOR DEPUTY PRESIDENT: Is this an argument that the award definitions of what a supervisor is are irrelevant?

PN7011

MR ADDISON: No, not at all, your Honour. We say the award definitions of the supervisor determine the coverage of the certified agreement. Now, it's not unusual for managers to be covered by awards in any event. If a manager was covered by an award, if there was an award for Toyota mangers and it fell under the 1998 award then Toyota managers would be covered by the certified agreement in any event.

PN7012

THE SENIOR DEPUTY PRESIDENT: Then let's assume that I'm worried about this argument about whether managers can be covered by an award?

PN7013

MR ADDISON: Yes.

PN7014

THE SENIOR DEPUTY PRESIDENT: What becomes critical in that instance if you're trying to say that they are covered by an award is, well, look at the definitions. Now, what I say, well if the level 3(c) is not only supervising GLs but is also supervising trades and non trades what does that leave the GL to do in terms of the definition. Your answer to that is, well the evidence is, you know, they do everything. Well, if the evidence is that they do everything, what are you telling me, the award definition is wrong?

PN7015

MR ADDISON: Your Honour, when I questioned Mr Mulhall, do you recall
Mr Mulhall's evidence?

PN7016

THE SENIOR DEPUTY PRESIDENT: Yes.

PN7017

MR ADDISON: And I put to Mr Mulhall, was he responsible for 44 people, I think it was, I'll be corrected on the number but it was in that ball park. His evidence was yes, that’s right, that’s what I'm responsible for.

PN7018

THE SENIOR DEPUTY PRESIDENT: But it doesn’t seem on the face of it that that's what the award allows for.

PN7019

MR ADDISON: The award has cascade on, if you like, in terms of responsibility.

PN7020

THE SENIOR DEPUTY PRESIDENT: Yes.

PN7021

MR ADDISON: So you have a GL who might have for the sake of the argument 10 employees. There is a span of control in the agreement, your Honour, but without going to that.

PN7022

THE SENIOR DEPUTY PRESIDENT: Well, the GL is responsible for the supervision of trades and non trades?

PN7023

MR ADDISON: Correct.

PN7024

THE SENIOR DEPUTY PRESIDENT: Yes.

PN7025

MR ADDISON: And the GFs supervise the GLs and the trades and non trades and/or trades and non trades, so the GL will be responsible for say 10. There might be three of them.

PN7026

THE SENIOR DEPUTY PRESIDENT: Yes.

PN7027

MR ADDISON: So the GF is responsible for 33, then the SGF might have two of them so the SGF is responsible for 66 employees.

PN7028

THE SENIOR DEPUTY PRESIDENT: Well, that doesn't seem to be what this is. The GF is responsible for the supervision of trade or non trades.

PN7029

MR ADDISON: Yes.

PN7030

THE SENIOR DEPUTY PRESIDENT: And the work functions prescribed in level 1.

PN7031

MR ADDISON: Yes, responsibilities for this level will include production schedules, quality assurance, et cetera, and then it cascades up, your Honour. And that's quite normal in my submission. That's the normal way it operates. Just bear with me, your Honour. The witness statement was just put to me and I think that's right, I think that's right, it's like as you'd move up the chain you drop off what you've been doing previously. You continue like a trades person. Now, as you learn something new you progress to the next level, you just accumulate additional responsibilities.

PN7032

THE SENIOR DEPUTY PRESIDENT: Where do I find that in the definitions?

PN7033

MR ADDISON: Well, that's the way the definitions work, your Honour, and that's typical for these sorts of definitions in awards in any event. That's typical across the board.

PN7034

THE SENIOR DEPUTY PRESIDENT: I understand how you say it operates but I can't find that in the actual words of the definition.

PN7035

MR ADDISON: Well, the definitions are, and I think Mr Skene put this in his outline, the definitions such as they are, they're not the best definitions in the world, I'll give you that, at all. However, the definition of the level 3(c) clearly captures the work that's being described in the evidence in these proceedings in my submission. There can be no doubt about that in my submission that what's being put is that the new assistant manager position and it ought be remembered, your Honour, that it is a new position, Mr Dymock gave evidence with regard to that and said that the whole management classification structure, if I can put it that way, was reviewed and the E4 came out of it, you will recall the evidence of
Mr Dymock.

PN7036

Just bear with me, your Honour, a second. There are two levels within the SGF position too, your Honour, if I can take you to the previous page, page 123. You will see that there is two pay points. There is pay point 1 which is a degree, senior general foreperson and pay point 2, management certificate. Once again we say that's further evidence that the work described in the evidence in these proceedings is captured by the award. We say that the description given in the evidence of the functions of the assistant manager are straight forward functions which are captured by the award .....

PN7037

We say the definitions do capture it and we say 3(c) clearly captures that planning, management and direction. The evidence led tends to distinguish the additional functions, if I can put it that way as planning. Long term planning I think was the term that was used, but that planning was more implementation. Your Honour, in terms of Mr Mulhall's evidence the - I have got to be careful what I say here, don't I, because this was all in confidence. But in terms of Mr Mulhall's evidence the evidence was that a new system was brought from somewhere else by a senior manager and Mr Mulhall was simply given the job of implementing that new system.

PN7038

Now, the evidence is that he may have been in receipt of some information which was not made privy to others. However, my friend conceded that
Mr Ebenwaldner who was in the position of a supervisor was in receipt of information as well which has not been made privy to everybody. It was conceded that the maintenance manager, whose name escapes me at the moment, the maintenance manager, Mr Stas, had briefed the GFs and the SGFs on the very project that was supposedly confidential. Now, that was agreed to, your Honour. So we say that the evidence does not support a conclusion that these employees are not covered by the award and if the are covered by the award then they're covered by the certified agreement and that's as clear as day follows night, your Honour, under the very terms of the certified agreement, under clause 3(c) I think it is, your Honour, the relevant employees. Your Honour, they're the submissions for the AMWU.

PN7039

THE SENIOR DEPUTY PRESIDENT: How long are you going to be,
Mr Skene?

PN7040

MR SKENE: Your Honour, I'm going to hand up a written outline. I was expecting that I would be about an hour but I guess it depends on how much assistance I can be. I can try to be shorter than that. My preference would be to try and resolve the case today but I appreciate that we're approaching that time. I'm certainly ready to go.

PN7041

THE SENIOR DEPUTY PRESIDENT: Yes. I only have half an hour.

PN7042

MR SKENE: Half an hour?

PN7043

THE SENIOR DEPUTY PRESIDENT: Yes.

PN7044

MR SKENE: Half an hour is going to be cutting it tight, your Honour.

PN7045

THE SENIOR DEPUTY PRESIDENT: Yes. It may be better to come back tomorrow.

PN7046

MR SKENE: Certainly. I mean if they're the constraints I think that's probably the better course.

PN7047

THE SENIOR DEPUTY PRESIDENT: Do you want to give me up the written now so I can at least read it overnight and I can grill you tomorrow.

PN7048

MR SKENE: Yes, certainly. Look, I've handed up - you will see there's a number of cases that are provided. I haven't provided all the cases, your Honour. I can do if we need to but there are only a couple that I was intending to take you to in any event.

PN7049

THE SENIOR DEPUTY PRESIDENT: All right.

PN7050

MR SKENE: Perhaps if you are going to, I would also like to depart now but perhaps if I could just say one thing just by way of introduction.

PN7051

THE SENIOR DEPUTY PRESIDENT: Yes.

PN7052

MR SKENE: We have rather anticipated the arguments that my friend put today, although we have approached them slightly differently and they're set out at paragraph 9 and paragraph 10.

PN7053

THE SENIOR DEPUTY PRESIDENT: Yes.

PN7054

MR SKENE: In his outline my friend put essentially two propositions. The first was that the functions and duties of the position in dispute which is defined to the same as the functions and duties of an SGF and then his second proposition was that constitutional - sorry, customary coverage, whatever that means, should continue. They were the two positions that he put. Now, essentially as he's puts things now he says there's an obstacle under the agreement, clause 3(k) of appendix F would prevent a decision to replace his position with an assistant manager and the submissions address that. He says but for that you also need to undertake a qualitative assessment of the functions and duties of the position to decide whether it falls within the award or not.

PN7055

We have approached it the other way round. We have said Toyota has made a decision to implement a position, that that position is an assistant manager position and that is a different position from the SGF position, that the primary function of the position in dispute, as it's called in the submissions, is a managerial assistant manager position, not an SGF position, and then that there is no impediment to Toyota under any of its instruments from implementing that position. So the submissions flow a little bit differently from the way that my friend put the arguments but the same issues are raised. So that was just the point I wanted to make to you before you started reading.

PN7056

THE SENIOR DEPUTY PRESIDENT: Okay.

EXHIBIT #TOYOTA19 CLOSING SUBMISSIONS OF THE RESPONDENT

PN7057

THE SENIOR DEPUTY PRESIDENT: I will adjourn until 10 o'clock tomorrow.

<ADJOURNED UNTIL FRIDAY, 3 MARCH 2006 [4.07PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #TOYOTA16 CALCULATION OF VEHICLE BENEFIT PN6147
GARRY ELKINGTON, SWORN PN6148
EXAMINATION-IN-CHIEF BY MR SKENE PN6148
EXHIBIT #TOYOTA17 STATEMENT OF MR ELKINGTON PN6163
EXHIBIT #TOYOTA18 ENGINEERING AND MAINTENANCE CONSOLIDATION DOCUMENT PN6206
CROSS-EXAMINATION BY MR ADDISON PN6235
RE-EXAMINATION BY MR SKENE PN6700
THE WITNESS WITHDREW PN6711
EXHIBIT #AMWU2 SUMMARY OF DIARY ENTRIES OF
MR DAVIS PN6726
EXHIBIT #TOYOTA19 CLOSING SUBMISSIONS OF THE RESPONDENT PN7056