C2006/2006, Transcript of Proceedings [2006] AIRCTrans 390 (17 March 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14407-1

COMMISSIONER LAWSON

C2006/2006

NATIONAL UNION OF WORKERS
AND
BRAMBLES AUSTRALIA LIMITED T/AS CHEP AUSTRALIA
s.99 - Notification of an industrial dispute
(C2006/2006)

SYDNEY

10.03AM, FRIDAY, 03 MARCH 2006

PN1

MR N COCHRAN: I appear on behalf of NUW with MR B HANSON and also here are a number of delegates which represents the sites and each shift behind us as well, Commissioner.

PN2

MS B KESTEL: I appear for Brambles Australia Ltd trading as Chep. Appearing with me, Commissioner, is MR G MORRISON who is the regional operations manager. I also have both service centre managers appearing.

PN3

THE COMMISSIONER: The matter before the Commission is an application filed pursuant section 99 by the NUW who have notified the industrial registrar of an alleged industrial dispute between the union and Brambles Australia trading as Chep Australia concerning alleged changes in employment conditions for grade 3 and grade 5 employees at two named sites together with allegations of the company's alleged non adherence to dispute settlement proceedings. Mr Cochran it's your dispute, what do you have to say about it?

PN4

MR COCHRAN: Thank you, Commissioner. Yes, I guess I can start with we had a meeting with the company, a final meeting on the 16th which was Thursday last month.

PN5

THE COMMISSIONER: Sorry, 16 February?

PN6

MR COCHRAN: 16/2, yes, which was a Thursday. The issue we have, Commissioner, is that at the moment the dispute basically is basically between the grade 3s to grade 5s and also non adherence to dispute settlement procedure.

PN7

THE COMMISSIONER: When you say the dispute is about grade 3s and grade 5s, what are you talking about?

PN8

MR COCHRAN: I'm going to give you a rundown.

PN9

THE COMMISSIONER: There's absolutely nothing in your dispute notification.

PN10

MR COCHRAN: That's fine. I can explain it all now, Commissioner. What it is, Commissioner, within the grade 3 duties there's a line which is called the paint line which is a part of the grade 3 duties that the employees now work on. What the company is looking at doing is removing that particular individual of the paint line and put them back on what's called the tables. Now the tables itself are still a part of the grade 3 role. The grade 5, the company would like the grade 5 to watch over the paint line and - - -

PN11

THE COMMISSIONER: Sorry, you spoke about the company looking to move one person.

PN12

MR COCHRAN: Yes.

PN13

THE COMMISSIONER: From the grade 3 paint line?

PN14

MR COCHRAN: Yes, per shift. There in the back on the tables basically where they fix and repair and make pallets.

PN15

THE COMMISSIONER: So that person is simply being relocated?

PN16

MR COCHRAN: Yes. We're not disputing that they have not been relocated within their duties, we are not disputing that. Now, with that, Commissioner, they want basically the company wants the grade 5 to oversee the paint line and to maintain the paint line. The issues naturally we have with that, Commissioner, is that the grade 5 duties, it's not a part of their grade 5 duties. We're not saying that the grade 5 cannot do that. The issue goes a bit beyond the grade 5 doing the duties into the fact that the company also stated that they are looking at removing part of the grade 5 duties and handing them to the supervisors which frees up the grade 5 to do the grade 3 duties which is the paint line.

PN17

Now, we also have issues as well with that obviously because my handing duties from a grade 5 to a supervisor it's therefore taking working off our particular members. Now, with that as well we have issues of OH&S as well, Commissioner, in relation to the fact that - - -

PN18

THE COMMISSIONER: Well, you're in the wrong shop if you're going to complain about OH&S, go straight to WorkCover. It might be a complimenting factor but it's not the issue.

PN19

MR COCHRAN: I'm basically just giving an over sight, Commissioner, of how the argument started. With the issues though you basically have a full understanding of basically our argument is, Commission, is that with the OH&S issues for example, at Milperra and I can't speak for Rosehill but at Milperra itself a number of employees have been sacked for breaching OH&S. In other words driving fork lift incorrectly, working in an incorrect manner.

PN20

THE COMMISSIONER: What are the OH&S issues related to this change of duties on the paint line.

PN21

MR COCHRAN: Okay. All right. The supervisor and the grade 5s basically oversee the operation of the particular lines itself. Basically what it is, it's a line a big production line, Commissioner. You've got people working on tables fixing pallets and preparing pallets what goes into what's called the paint line where a bloke actually operates the paint line. The paint line itself breaks down nearly 100 odd pallets or a 100 odd breakdowns per shift. That's the information I've received which basically means someone has to be there full time to fix it.

PN22

THE COMMISSIONER: So what's the OH&S issue?

PN23

MR COCHRAN: The OH&S issue is that the grade 5 oversees the operation of a line. Now, its human nature if you're working on a paint line or a particular table section as I'll call it as referred to out there on site. If I'm working on a particular then I'm not worried about what the guy next to me is doing five metres away. A part of the grade 5 duties is to oversee that. Not only the grade 5 but also the supervisor as well. Now our argument naturally is that if a grade 5 is spending most of his time on a paint line, repairing the paint line and getting the paint line up and running, how can that grade 5 efficiently do his duties by overseeing everyone else and exactly what they are doing. Now, we are not disputing the fact people are not in charge of their own OH&S we hope people do the right thing and don’t do anything silly or try to cut corners but the reality is, Commissioner, it happens and one of our main issues we have is naturally that when people break the rules under OH&S at Chep it's normally discovered by the supervisor or the grade 5 who was naturally overseeing the whole process.

PN24

Now if the grade 5 has been removed of his duties, the grade 5 now has to also look after the paint line which hence means he's not - hasn’t got the time to look after the other people or monitor the other people throughout the production process. Not only that there's another point here as well where the grade 5, a part of the grade 5 duties, is going to be removed from the grade 5 and handed to the supervisor.

PN25

Now, if the supervisors workload increases as well then how can the supervisor efficiently do their job under OH&S as well. The reasons why basically we've got a bee in our bonnet so to speak, Commissioner, is the fact that we've had members sacked over OH&S issues before and I cannot see how loading up the supervisors and the leading hands as for grade 5s with extra duties and removing a guy off the paint line and having that line itself done by the grade 5 and handing the duties to the supervisor is going to make OH&S better.

PN26

To us if anything it will make things worse because there will be no-one basically monitoring it. Now, with that we are saying, Commissioner, as I highlighted before the paint line itself on average breaks down a 100 times per shift give or take 10 or 20 depending on the day. Now when that breaks down a person himself has to go there and actually clear it or fix it. The company had the argument they wanted fresh eyes to look at the paint line so they can have a good look at it and found out what's wrong so therefore they can address the problem and fix the problem.

PN27

We don’t have an issue with that but the issue I do have with that is the fact that if that is the case then wouldn’t it be best to have someone on the paint line the whole time not actually have a grade 5 to monitor it? If the company is really concerned about fixing the problem why don’t they address the problem by having someone on the paint line to repair the pallets to make sure the paint line is repaired as it breaks down and to continue the production.

PN28

To my understanding when the paint line breaks down and no-one is there the way the company is looking at doing it unless someone is directed to go work on the paint line no-one touches it. I mean that's a production issue the company is going have but everything builds up. So basically that's how we all started with the - between the grade 3 to grade 5 argument. Now we met with the company as I said on the 16th of last month which was a Thursday, now we raised these issues with the company about OH&S, there was also I should say the moral issue of removing an individual who has worked on the paint line for a number of time. I'll call it the paint line I know it's a part of grade 3 but removing that individual and putting them back on the tables where it’s a part of everyone's duties throughout the day or throughout the week as they rostered to work on the paint line as an extra position a grade 3 holds.

PN29

With that we believe that we need to sit down further the company and look at all the arguments put forward as for the OH&S. Is there a better way of doing this because it's going cause problems not only as I can see with OH&S but also cause problems with the actual members themselves but not accepting the fact that one of their members is going to removed off a particular duty which was a part of the roles. To sit down further and go through the issues and hopefully at the end of it have clear understanding or agreement between the both of us so we'd all move ahead and the company can either implement what they want to do but maybe in a different way which pleases both sides.

PN30

With that basically on Thursday we got told off the company that, no, this is what we're going to do, we are staring it on Monday and we are not abiding by the dispute settlement procedure because quite frankly we don’t believe we have an argument. But as I said, Commissioner, the OH&S issues and also the issue about moving a guy of the line was never clearly addressed.

PN31

THE COMMISSIONER: So what has the union done to advance the dispute settling procedure?

PN32

MR COCHRAN: The company doesn’t want to abide by it, Commissioner. What we're hoping today basically out of this hearing today is that the company abides by the dispute settlement procedure, we sit down and have further discussions about the removal of that grade 3 off that role, I'll call it that, from the paint line and also have a look at not only that, Commissioner, but the grade 5 duties themselves. I mean if the company's planning on taking a part of the grade 5 duties around which is a part of an EBA role and handing them to a supervisor then naturally, Commissioner, we're going have problems with that. It's removing the duties of individuals. It's moving duties for out of the site, taking them off the employees which are covered by the agreement and handing them to the supervisors.

PN33

THE COMMISSIONER: Well, why don’t you now take me to the parts of the agreement and these classifications which we believe the company is applying incorrectly.

PN34

MR COCHRAN: Actually it’s in the comprehensive, Commissioner.

PN35

THE COMMISSIONER: It's in the what?

PN36

MR COCHRAN: The comprehensive agreement. You've got the site enterprise agreement.

PN37

THE COMMISSIONER: Yes.

PN38

MR COCHRAN: Then you've the comprehensive agreement which is over that.

PN39

THE COMMISSIONER: I have extracts from both of those.

PN40

MR COCHRAN: Okay.

PN41

THE COMMISSIONER: The definitions of the various grades. I understand there is no difference between the two, is that correct?

PN42

MR COCHRAN: Between the grade 5 and the grade 3, you're saying?

PN43

THE COMMISSIONER: No, between the comprehensive agreement and the Storage Service Materials Handling Award 2002?

PN44

MR COCHRAN: No, I don’t think there is - - -

PN45

THE COMMISSIONER: Which are you relying up?

PN46

MR COCHRAN: Well, basically, Commissioner, I'm looking at the enterprise agreement into the comprehensive and also, I mean - - -

PN47

THE COMMISSIONER: You're looking at the old enterprise agreement?

PN48

MR COCHRAN: Well, I'm looking at the enterprise agreement as for dispute settlement procedure which is the one from 2004.

PN49

THE COMMISSIONER: That's right.

PN50

MR COCHRAN: Which covers Lidcombe, Milperra and Rosehill sites.

PN51

THE COMMISSIONER: That's right, I've got that in front of me.

PN52

MR COCHRAN: The job description one no doubt is covered within the comprehensive agreement because I know they're not stipulated exactly inside the onsite enterprise agreement.

PN53

THE COMMISSIONER: All right. I've got a copy of the extract from the comprehensive agreement in front of me now.

PN54

MR COCHRAN: Yes.

PN55

THE COMMISSIONER: You tell me what is it that's now being breached?

PN56

MR COCHRAN: Okay. Just give me a moment, Commissioner, I'll just look it up. Well, the argument about the grade 5 doing the grade 3, we don’t have an argument with that. The argument we've got is the - yes, well the fact that job has always been a part of the grade 3 work.

PN57

THE COMMISSIONER: Which job, the paint line?

PN58

MR COCHRAN: The paint line, yes.

PN59

THE COMMISSIONER: The company can relocate work as it chooses.

PN60

MR COCHRAN: I'm not saying they cannot, Commissioner.

PN61

THE COMMISSIONER: Well, what's the problem.

PN62

MR COCHRAN: What we're saying is that we have issues about the impact on not only the members but also the impact on OH&S.

PN63

THE COMMISSIONER: But what are those impacts, you haven’t told me what they are. I've asked you about six times. What are the OH&S impacts apart from crystal ball gazing?

PN64

MR COCHRAN: Well, it is not crystal ball gazing, Commissioner.

PN65

THE COMMISSIONER: Where is the evidence of changes or breaches of occupation, health and safety as a consequence of the implementation of this system? You've spoken about it in generalised terms. Now produce something to support your generalisations. What is it? Is it fatigue of the worker? Is it dangerous to work there and what is it, have you asked WorkCover to come in and inspect it?

PN66

MR COCHRAN: Well, if that's what needs to be done, Commissioner, I don’t mind asking WorkCover to come and inspect the area.

PN67

THE COMMISSIONER: Well, Mr Cochran, I don’t expect you to come here and shoot your mouth of about allegations unless you can back them up. What are the breaches of OH&S or the consequences, the OH&S consequences of this change of manning of the line?

PN68

MR COCHRAN: Well, technically, Commissioner, yes, there would be no breaches of OH&S. Okay, what we are looking at is to pass history of the site as for OH&S.

PN69

THE COMMISSIONER: But that is history.

PN70

MR COCHRAN: Well, Commissioner, the way I look at it. Okay, the way I should say we all look at it is that every other issue of OH&S it's always involved the supervisors or the grade 5 as by seeing exactly someone doing something wrong and bringing it to the attention of management. Now, if those people line up with extra duties and extra work and considering the grade 5 now is going to spend most of his time repairing and making sure the paint line runs correctly - - -

PN71

THE COMMISSIONER: Well, that's not what you have told me. That's an assumption on your part that the grade 5 is going to spending and you just said it, most of his time looking after the paint line.

PN72

MR COCHRAN: That's correct.

PN73

THE COMMISSIONER: You tell me his job is going to be to oversee not to fix and run and man.

PN74

MR COCHRAN: Well, Commissioner, if he's overseeing the paint line he is going to spend most of his time directing people to go - - -

PN75

THE COMMISSIONER: Well, that's your assumption isn’t it?

PN76

MR COCHRAN: Well, they've said, Commissioner, the company has said that.

PN77

THE COMMISSIONER: We'll I haven’t heard what the company has said yet.

PN78

MR COCHRAN: Well, maybe we should.

PN79

THE COMMISSIONER: But I want to know what it is about the conditions of the grade 3 and the grade 5 that has your members so concerned.

PN80

MR COCHRAN: Well, is probably the more of the moral argument, Commissioner.

PN81

THE COMMISSIONER: Okay. Now let's be fair dinkum, if it’s a moral argument, then stop talking all the technical gobbledygook, you're concerned that one of your members has been removed off the paint line, is that right?

PN82

MR COCHRAN: Yes.

PN83

THE COMMISSIONER: And being allocated other work within is level of skill and capacity?

PN84

MR COCHRAN: Yes and the grade - sorry, Commissioner.

PN85

THE COMMISSIONER: All right, and that another member, are grade 5 members of yours?

PN86

MR COCHRAN: Yes.

PN87

THE COMMISSIONER: All right. That another member is having his duties altered?

PN88

MR COCHRAN: Yes.

PN89

THE COMMISSIONER: The content of his duties altered.

PN90

MR COCHRAN: Yes.

PN91

THE COMMISSIONER: Is that being altered within the scope of the graded classification?

PN92

MR COCHRAN: The duties he currently does is being taken out of the agreement and handed to him which he is currently covered by the agreement, Commissioner, as for a grade 5 in his duties.

PN93

THE COMMISSIONER: Duties out of the agreement?

PN94

MR COCHRAN: Well, apart of his duties now is to do paperwork, everything basically involves a grade 5 duty as a leading hand and counts the pallets and all the rest of it. The part of the duties that the company wants to take off him is a part of the duties that currently in 4 makes, which is what he does as for a leading hand in the office as for paperwork.

PN95

THE COMMISSIONER: Isn't that within the scope of the company to direct him to do something like that? If he's not being asked to do what's within his classification - if presumably he's a grade 5 he can do all the grade 1 to 4 jobs at any time.

PN96

MR COCHRAN: Yes, that's correct. We don’t have an issue with that.

PN97

THE COMMISSIONER: Okay. Isn't that what he is being asked to do?

PN98

MR COCHRAN: Well, yes. From doing from a grade 5 to doing a grade 3s work, we don’t have any issue with that, Commissioner. There's a moral issue there obviously but what we've also got a beef about is the company relieving the grade 5 of part of his duties and handing them to the supervisor to do.

PN99

THE COMMISSIONER: So you concerned about the part loss of some of the grade 5 duties?

PN100

MR COCHRAN: Yes.

PN101

THE COMMISSIONER: Okay. And all you want out of these proceedings is the opportunity to sit down and talk to the company?

PN102

MR COCHRAN: Yes. We just basically - - -

PN103

THE COMMISSIONER: Consistent with the dispute settling procedure?

PN104

MR COCHRAN: Correct.

PN105

THE COMMISSIONER: And you're saying to me that that was refused to you on 16 February because the company is going to implement the new system the following Monday.

PN106

MR COCHRAN: Yes, no matter what, that was the words, Commissioner.

PN107

THE COMMISSIONER: All right. Any further at this stage?

PN108

MR COCHRAN: No, Commissioner.

PN109

THE COMMISSIONER: Thank you. Well, Ms Kestel, what's the other side of the story.

PN110

MS KESTEL: Thank you, Commissioner. There are a number of issues that I'd like to address quickly. The company's position is that the matter primarily relates to the allocation of labour within both service centres. We did actually have strike action occur for three full days last week from Monday 20 February through to Wednesday 22 February. The employees returned to work on Thursday,
23 February. Milperra has worked normally since that time.

PN111

THE COMMISSIONER: That's at Rosehill for three days, is it?

PN112

MS KESTEL: At both service centres were three days, Commissioner. Rosehill, however has instigated a go slow since that time and has worked at a reduced rate. From approximately 52 pallets an hour they're down to approximately 43 pallets an hour on average. Commissioner, there also appears to be and I say appears to be a ban on overtime. From the company's perspective the paint line does not justify being full manned at all times. In fact the paint line was not designed to be manned at all. Commissioner, of the 10 pallet repair service centres that Chep has nationally in Australia only two of them have a person manning the paint line and that is both of these depots, Rosehill and Milperra so with respect to any safety concerns all other service centres in Australia of which there are NUW members employed we do not have a person manning the paint line at all times.

PN113

Currently we do have a grade 3 employee per shift monitor and observe the paint line. The objective of the company is to have all employees in productive roles as far as that is possible. The change that the company has proposed is to have a grade 5 employee monitor the paint line and make any adjustments or fix any stoppages.

PN114

THE COMMISSIONER: A 100 times a shift, is that right, or a 100 times a day?

PN115

MS KESTEL: My understanding, Commissioner - - -

PN116

THE COMMISSIONER: Plus or minus 20 I think was Mr Cochran's estimate?

PN117

MS KESTEL: 16 per shift, approximately two per hour.

PN118

THE COMMISSIONER: 16 per shift. Have you got evidence of that, have you?

PN119

MS KESTEL: I understand that we have carried out surveys so, yes, based on the information that my service centre managers have provided to me, yes we do have evidence of that.

PN120

THE COMMISSIONER: And when there's a breakdown on the paint line who attends to that?

PN121

MS KESTEL: Currently it would a grade 3 although it may be a maintenance grade 5 who may need to assist. It's the company's position that the employees do not fully understand the reason for blockages on the paint line. Our grade 5 employees are experienced trouble shooters and we believe will look beyond the immediate stoppage or the immediate problem and be able to look at the underlying problem to ensure efficiency of the paint line. That is why we would prefer a grade 5, a more experienced employee to undertake those tasks.

PN122

THE COMMISSIONER: Why do you need that at all when you have these eight other plants that don't have any intention at all - - -

PN123

MS KESTEL: Commissioner, we don't have a designated person that monitors only the paint line in the other eight service centres, however we do have grade 5s in all those other service centres that undertake the monitoring role of the paint line in addition to their duties. A grade 5 primarily should be looking at the quality of the pallets that are repaired and it is more efficient to have a grade 5 monitoring the paint line. It doesn't justify a person standing there observing it for eight hours a shift. There is just not productive work for an individual to stand there and do that.

PN124

I would like to take you to a number of agreements which bind the site. If it would assist the Commission I have copies of them here or you may already have copies.

PN125

THE COMMISSIONER: I have copies, I have them for 2004 Lidcombe, Milperra and Rosehill agreement in front of me. I only have extracts, the classification extract from the Storage Services Materials Handling Award 2002 and the comprehensive agreement.

PN126

MS KESTEL: If I may I will give you a complete of the comprehensive agreement and the award. Commissioner, I would like to take you to clause 8(c) of the site agreement which is the 2004 agreement. It's page 4. Clause 8 deals with the purpose of the new agreement and outlines mutual commitments which have been made by both parties, in particular clause 8(c) talks about achieving continuous improvement of processes, systems and procedures. It's the company's submission that what we are proposing with the paint line falls into the scope of that and that the site agreement recognises that change can occur through the life of the agreement in terms of continuous improvement. I would also like to take you to clause 21 of the same agreement which is on page 13.

PN127

THE COMMISSIONER: Just hold it.

PN128

MS KESTEL: Clause 21 provides for a joint consultative committee. Clause 21.2.2 talks about the joint committee developing further the prospects for improved business performance.

PN129

THE COMMISSIONER: What about it?

PN130

MS KESTEL: It's the company's position that we have consulted fully. We believe what we are trying to do falls within the scope of managerial - - -

PN131

THE COMMISSIONER: The joint consultative committee have met and dealt with this matter specifically?

PN132

MS KESTEL: Yes, and I have the dates, Commissioner.

PN133

THE COMMISSIONER: And when those meetings?

PN134

MS KESTEL: With Milperra, that started back in August 2005. There have been approximately eight meetings which occurred in 2005 specifically regarding this issue. The meetings that the NUW was present at are as follows, there was a meeting with employee representatives on 12 August, a meeting with my friend Mark Cochran on 17 August specifically to discuss the paint line issue. There was a meeting on 23 August. This is at Milperra, Commissioner, which Mark Cochran was present at and also Mr Morrison, the regional manager, to discuss the issue. There was a meeting of the joint consultative committee on 25 August where the joint consultative committee agreed to trial a change to the paint line.

PN135

The company met and had maintenance meetings, two of them in that time. On 12 September there was a meeting with employee representatives regarding the trial. There was a meeting with the JCC, sorry, joint consultative committee on
27 October. There were a number of maintenance meetings which were discussing stage 1 and stage 2 of that trial in the month of October and also January this year. On 2 February the joint consultative committee meet to discuss the data and the improvements of the trial and on 10 February there was a meeting with the NUW.

PN136

At that point in time the NUW requested a meeting at both sites, Milperra and Rosehill. The company agreed to that meeting. On 13 February there was a joint meeting of both service centres and the NUW and the union delegates and both of the union officials that are present today. It was agreed at that meeting that the trial which we wanted to recommence at Milperra and Rosehill was meant to occur on 13 February. However at the request of the union it was postponed for a week to allow for further discussions. There was a report back meeting on
15 February and a second joint site meeting occurred. My friend has said that was on 16 February, I thought that was the 15th, I could be wrong though.

PN137

At that point in time the union indicated that the trial could not go ahead that the trial could not go ahead. The company advised that after extensive consultation we believe that the trial should go ahead. Of note, Commissioner, we've had a two week trial at Milperra previously. This is not a change that the company has tried to enforce immediately. We agreed to a two month trial to allow any employee concerns.

PN138

THE COMMISSIONER: Who agreed to a two month trial?

PN139

MS KESTEL: The company agreed to the NUW and its members that we would have a two month trial.

PN140

THE COMMISSIONER: So you had a two week trial at Milperra?

PN141

MS KESTEL: Last year.

PN142

THE COMMISSIONER: Last year, when was that?

PN143

MS KESTEL: That was in two stages, two separate stages I believe in October and November I think it was, Commissioner. Then we had the Christmas period. At the end of January we wanted to recommence a longer trial given the employees had raised concerns. We wanted to address those concerns. We did not feel that there would be any safety issues and in fact of note, Commissioner, that safety was not raised as an issue at any of the eight meetings that occurred last year.

PN144

THE COMMISSIONER: Well, Mr Cochran is making an awful lot of noise about it today as you know.

PN145

MS KESTEL: Yes, Commissioner.

PN146

THE COMMISSIONER: So you had a two week trial, two periods at the end of 2005?

PN147

MS KESTEL: Correct.

PN148

THE COMMISSIONER: Then what's this about a two month trial?

PN149

MS KESTEL: Because we wanted to change the paint line at both Rosehill and Milperra and Rosehill had not yet had a trial and given the concerns of the union and the employees regarding the allocation of labour and they indicated that they were not happy with this company decision, we agreed to have a two month trial to assess whether there were any safety concerns, whether there were any other legitimate concerns.

PN150

THE COMMISSIONER: You say, we agreed, who agreed?

PN151

MS KESTEL: The company.

PN152

THE COMMISSIONER: It might have been management agreeing.

PN153

MS KESTEL: Management.

PN154

THE COMMISSIONER: Management was agreeing with management that we will have a two month trial, that's very good, that’s a great agreement.

PN155

MS KESTEL: The service centre managers consulted with the employees and advised that they were willing to conduct a two month trial rather than implement the change immediately.

PN156

THE COMMISSIONER: Okay, so the company wants to reintroduce the trial at Milperra and introduce it for the first time at Rosehill for a period of two months?

PN157

MS KESTEL: In fact, Commissioner, the trial has already commenced and it commenced last Thursday when the employees returned to work. We have now had one week of the trial and I'm not aware of any safety concerns which have arisen and I understand that the trial is working quite well. However we would like that trial to continue for the full two month period and we are willing to meet with the NUW and have discussions after the first month and perhaps at the end of the second month or any time in between if they so desire. Commissioner, with respect to removing grade 5 duties and giving them to a supervisor I understand that that relates to data entry of time sheets. I understand that that may take half an hour per shift. I also understand that currently supervisors, salaried supervisors perform that work although often a grade 5 may also perform that work and help out. If I could take you to the classification definitions within the - - -

PN158

THE COMMISSIONER: So you say it's currently a job that is shared between supervisors and grade 5s?

PN159

MS KESTEL: That's correct. If I could take you to page 19 of the comprehensive agreement?

PN160

THE COMMISSIONER: The comprehensive agreement?

PN161

MS KESTEL: Which is the 1999 agreement, page 19, clause 20.2.5(b).

PN162

THE COMMISSIONER: Page 19 of the comprehensive agreement and which clause are you referring to?

PN163

MS KESTEL: 20.2.5(b) which is half way through the grade 5 classification. It talks about indicative tasks performed at this level may include. The first one I'd like to draw your attention to is:

PN164

Operative with flexibility between all functions and all grades when required.

PN165

THE COMMISSIONER: So, you're not asking the to do that.

PN166

MS KESTEL: I'd just like to point out - - -

PN167

THE COMMISSIONER: Do you say that covers the paint line supervision?

PN168

MS KESTEL: Correct.

PN169

THE COMMISSIONER: All right.

PN170

MS KESTEL: In terms of clerical duties, lower down, it talks about:

PN171

EDP, electronic data processing and clerical duties as required.

PN172

The company is not disputing that. From time to time we may require a grade 5 to perform clerical duties office work duties however it's only on an as needs basis. If a supervisor does not have the time in particular shift to enter the time sheet records he may ask a grade 5 to assist. It's my understanding we're not making any change in terms of that yet. The NUW has raised that as an issue. In summary, Commissioner, we respectively submit that the change to the paint line is within managerial prerogative as long as we are operating within the scope of the certified agreements that bind the site and as long as adequate employee consultation has occurred which respectively submit has occurred in great detail. However we are happy for consultation to continue to occur on the basis that the trial continues. If it pleases the Commission.

PN173

THE COMMISSIONER: Thank you, Ms Kestel. Mr Cochran, any responses?

PN174

MR COCHRAN: Yes, thank you, Commissioner. First of all I just want to cover a few things that the company was saying as for a go slow. I am not aware of any go slow and I don’t think there is, Commissioner, because the workers went back to work as prior to the dispute. The dispute ought come out as for the three days for people being out from work, on strike, is the fact the company not adhering to the dispute settlement procedure. Also they're talking about the productivity.

PN175

THE COMMISSIONER: Where is that in itself a breach of the dispute settlement procedure? So if the troops hit the grass for three days, for the company allegedly not following the dispute settling procedure?

PN176

MR COCHRAN: Well, they did follow it, Commissioner.

PN177

THE COMMISSIONER: Neither did the employees by going on strike for three days.

PN178

MR COCHRAN: Well, what else was left to do?

PN179

THE COMMISSIONER: Mr Cochran, whatever you might think the world has changed and for the troops hitting the grass, that's 1970 stuff. The troops hitting the grass now and in the future could be a very, very, expensive exercise.

PN180

MR COCHRAN: I understand that too, I know, Commissioner, I know, things are changing. As for the company saying the go slow about how many pallets per hour they're doing to my understanding towards the end of last week there was a power blackout and they had to bring generators in to operate the actual compressors because everything is driven by air. Also the grade 5 who was overseeing the paint line work and on the paint line has never worked on it before, never been trained on it. That's my understanding speaking to the delegates today.

PN181

THE COMMISSIONER: With very great respect, Mr Cochran, that's none of your business. That's not your business and it's not your members business. If the company chooses to put an incompetent person on the job and something arises as a consequence of that the company will pay through the nose.

PN182

MR COCHRAN: I understand, Commissioner. I've raised this - - -

PN183

THE COMMISSIONER: So it's no need for your worry about whether the grade 5 is or is not experienced. The company believes the grade 5 can do the job.

PN184

MR COCHRAN: I've raised into context though, Commissioner, by not being able to do the job that everything builds up therefore hence that's why the productivity was down.

PN185

THE COMMISSIONER: Well, you're talking in generalisations, Mr Cochran, show me the statistics. Show me when this guy was manning that job and all of sudden production has slowed because he's not trained.

PN186

MR COCHRAN: Well, it's also how - - -

PN187

THE COMMISSIONER: Stop talking generalisations. Produce some materials and some facts that can back up your very, very verbose description of what's happening at this site. You didn’t even mention to me that you'd had eight meetings with the employer or the joint consultative committee had met with this employer, that the joint consultative committee had reached certain outcomes. You come here and present this as something, a ghastly deed that was thrust upon you on 16 February. You're not being honest with me, Mr Cochran, and you're not assisting the Commission to do its job when you only tell me part of the story.

PN188

MR COCHRAN: Commissioner, then if I may say the meetings prior to this, the ones the company has mentioned, I can only recall one was probably on
2 January.

PN189

THE COMMISSIONER: You may not have been at them all.

PN190

MR COCHRAN: Well, I wasn’t - - -

PN191

THE COMMISSIONER: Ms Kestel has given you all of the dates. I presume you recorded the dates and you'll be able to check whether it did occur or not.

PN192

MR COCHRAN: I will be doing that, Commissioner. The thing is it's a number of times issues have been raised to the consultative committee which is in contrast to what normally would happen as we're going through the union process as for speaking to the union first or the delegates to get an agreement first. It's easy to go the members and say, look this is what we want to do. The average Joe Blow around the table thinks, well that doesn't sound that bad and then all of sudden there's a few nasties that come out of which has happened in the past, Commissioner. That's why we all know - - -

PN193

THE COMMISSIONER: And often the nasties are found because a trial operates and people co-operate during a trial and bring things to the company's attention during that trial.

PN194

MR COCHRAN: We did, I mean, the company was right in saying that there was a trial. We did trial at Milperra but that was a part of us sitting down with the Milperra management and working it out in a fair and just able manner, okay, well this is what the company wishes to do, we're not opposed to it. We're not opposed to trials but the information I received coming out of that from the delegates and the members was that the trial itself basically didn’t function to the correct - to the complete of what the company wanted it to function to as for the delays and so forth with the pallets. I don't know ….. the Commission has done by worry about the person who don't know what they're doing on the job.

PN195

THE COMMISSIONER: That's not my business nor is it your business. It's the company's business. If it's production slows down because of its implementation of a trial. A trial will only work if people are genuine in giving it a go.

PN196

MR COCHRAN: And I believe we did, Commissioner.

PN197

THE COMMISSIONER: What it's been operating since last Thursday.

PN198

MR COCHRAN: Well, last Thursday it's been operating because there's been no - there's been no agreement on it, Commissioner, the company has just gone ahead and done it and even though we had a trial prior to that. I mean this is what - the trial that came out of Milperra, the issues that came out of that trial I should say, is what we raised.

PN199

THE COMMISSIONER: I see.

PN200

MR COCHRAN: What I've already spoken about.

PN201

THE COMMISSIONER: They've been dealt with have they?

PN202

MR COCHRAN: No.

PN203

THE COMMISSIONER: This year?

PN204

MR COCHRAN: No, Commissioner. I mean that's why we needed the company to abide by this dispute settlement procedures, the status quo, it would have probably only been - I've clearly said to the company, it probably would only be another week. We needed to sit down. It probably would have been able to start the trial in a week's time but at least have some clear guidelines set down exactly how it's to function and operate so we all understand so we don’t have a situation where members on the floor get the wrong information or get upset about exactly what's happening and we end up in a situation like we done last week. The whole of last week could have been avoided, I clearly said that to the company. All they had to do is follow the dispute settlement procedure, we have a further meeting the following week which was what I said and we go through these issues which I've raised today as with the grade 5s, the grade 3s and the moral argument also of the duties pertaining to grade 5.

PN205

THE COMMISSIONER: Well, if the right people are here you can probably confer with the company now.

PN206

MR COCHRAN: I don't have a problem doing that, Commissioner. Also I just need to know one thing I guess as well. Probably do it while we are, Commissioner, as for the company raising the fact of the grade 5s and they raised a part of the grade 5s duties. One part there is:

PN207

Operate with flexibility between all functions and all grades when required.

PN208

We don’t have a problem with that. What I was needing to know is basically can a supervisor do a grade 5s duties then if that's the case? That's what's prescribed in the EBA. I can't read in the EBA where it stipulates a supervisor can do grade 5 duties, I mean if the company wants to get real technical about this.

PN209

THE COMMISSIONER: Well, in what way do you allege that the supervisor is being asked to do grade 5 work?

PN210

MR COCHRAN: Well, the company is saying basically that its date entry and so forth which a grade 5 does in conjunction with the supervisor.

PN211

THE COMMISSIONER: It's a shared duty?

PN212

MR COCHRAN: Yes, from my understanding.

PN213

THE COMMISSIONER: And that's covered by the grade 5- - -

PN214

MR COCHRAN: That's right. It's a part of their conditions of a grade 5.

PN215

THE COMMISSIONER: It's a shared function or do you dispute that, do you?

PN216

MR COCHRAN: Well, that's not my understanding, Commissioner, going by
the - - -

PN217

THE COMMISSIONER: Well, I am told by the company that it is so, sorry, either Ms Kestel or you or those that are advising you are liars and I am not interested in dealing with liars. You're being emphatic that this is a grade 5 job. I'm told by Ms Kestel it's a shared job between supervisor and grade 5. Someone's wrong. EDP and clerical duties as required, that's not absolute.

PN218

MR COCHRAN: Okay. Well, Commissioner, I'm going to sound like a broken record but they are the issue that came out of the trial anyway at Milperra and these were issues were raised with the company last Thursday at the final meeting. The ones they had with the consultative committee, I don’t even know what come out of them but I'm going to find out. I will, Commissioner, but it just seems a way that - - -

PN219

THE COMMISSIONER: Well, you're not a member of the joint consultative committee, is that right.

PN220

MR COCHRAN: Well, I probably don’t want to be there, Commissioner,
but - - -

PN221

THE COMMISSIONER: That's fine, that's okay, so long as someone else is there and I presume you will now examine all of the minutes of those joint consultative committee meetings, will you?

PN222

MR COCHRAN: Well - - -

PN223

THE COMMISSIONER: And if you haven’t got them why do you come along here not armed with that material?

PN224

MR COCHRAN: I'll get it, Commissioner, I'll get it.

PN225

THE COMMISSIONER: Because it's just as likely that the other side might very well have a written record of those meetings.

PN226

MR COCHRAN: But there - I'm pretty sure they'd probably have it, Commissioner.

PN227

THE COMMISSIONER: Well, I hope they have

PN228

MR COCHRAN: The issues I'm pretty sure I probably found out about those and I know I'm speaking probably with a crystal ball again but the issues that I'll probably find is that the joint consultative committee probably even have the agreement in front of them or the comprehensive to clearly understand if there is any breaches of such.

PN229

THE COMMISSIONER: Mr Cochran, you are now assuming that the members of the joint consultative committee do not know what they're doing.

PN230

MR COCHRAN: I'm not saying that, Commissioner.

PN231

THE COMMISSIONER: And with very great respect to you, they probably know a dam sight more about what they're doing than either you or I and they're probably in the very best position to be able to contribute to those joint consultative committee outcomes because it's their work, they know the work. They know what can and cannot be done. I'm sorry; all I'm hearing from you is generalised statements about a situation that we don't know enough about.

PN232

MR COCHRAN: Well, Commissioner - - -

PN233

THE COMMISSIONER: And there's some objection, I acknowledge that there is some objection by your members to what the company is proposing, but quite frankly, until such time as it is allowed to operate, no-one will know.

PN234

MR COCHRAN: Well, I'm only acting on the information received by the delegates and the members, Commissioner, and I would say that the information they give me would probably have to be pretty accurate because they're the ones doing the job.

PN235

THE COMMISSIONER: You don't think it might be a bit exaggerated for the sake of the argument, because in the end I can only assist you if I am provided with firm information.

PN236

MR COCHRAN: I understand, Commissioner, I understand, but that's the information I've received as through the membership and the delegates on site, Commissioner. I mean if I look at that - - -

PN237

THE COMMISSIONER: Well, there's something very contradictory about what you're saying, that the members oppose this change or on the other hand you then say you don't oppose change, but you oppose this particular change and yet what I understand is proposed is the outcome of something like eight meetings between the joint consultative committee and management or between the union and management. Now, you reach the point where you run out of talking and someone has actually got to have a go at it and is that the point we've reached at the moment?

PN238

MR COCHRAN: Well, I would like to a further meeting or so with the company to address those because we weren't completely satisfied on the day, Commissioner, that those issues were raised which are ground level issues as for OH&S. I know I've gone through it all before about half an hour ago, Commissioner.

PN239

THE COMMISSIONER: No, you're generalising it. The problem with your submissions, Mr Cochran, is that you were generalising without any factual back up. It's an emotive argument, it's not a factual argument.

PN240

MR COCHRAN: Well, Commissioner, I think it's a legitimate argument. I mean what am I supposed to do, wait for someone to get injured because there wasn't someone there observing? Commissioner, I'm just calling a spade a spade. I'm worried about the - - -

PN241

THE COMMISSIONER: Yes, but I asked you for detail what the OH&S issues were and you weren't able to tell me. All you were able to tell me is that you've had members in the past disciplined for breaching OH&S rules.

PN242

MR COCHRAN: That's correct, that's correct, and the people who were seen to be breaking the OH&S rules were the supervisors and the leading hands, the grade 5s. I'm not opposed to people being pulled up for breaching OH&S. What I'm worried about, if those people have extra duties put upon them, then if someone breaches OH&S and someone gets injured, where they would have been pulled up if that person was monitoring that particular area they were working in, that's a concern for me, Commissioner.

PN243

THE COMMISSIONER: A rightful concern but you simply will not know whether it's substantiated unless and until the new method of work is given an opportunity if your organisation is committed through your enterprise agreements to changing technology and achieving continuous improvement of processes, systems and procedures. Now, they might just be words and they might be interpreted by different people at different times to suit their argument but we live in a changing world. Those processes will change, technology will change, the equipment will change.

PN244

MR COCHRAN: There's no issues with change, Commissioner. The issues we have is to make sure all - - -

PN245

THE COMMISSIONER: I think your issue is with change, a change of duties between a grade 3 and a grade 5.

PN246

MR COCHRAN: Well, it's the mild one - - -

PN247

THE COMMISSIONER: And you're trying to hang onto something that doesn't even exist in eight of the other plants of the company in Australia.

PN248

MR COCHRAN: Well, Commissioner - - -

PN249

THE COMMISSIONER: Do you know about those, Mr Cochran?

PN250

MR COCHRAN: Yes, I do, Commissioner, and my proposal to the company is why don't they send at least one or two key delegates to see it first hand and if that's the case, fine, we don't have an issue, but even that was rejected. We are happy to look at change, Commissioner, we don't have a problem with that. But what we need to make sure, that all issues are addressed first before the change goes ahead because at the end of the day if the change goes ahead and all the issues are not addressed in the last week as a result of it you end up with members who are pretty upset with what's happening and we all know the result of that, it was three days dispute, and also you end up with a situation where we're down here in front of yourself, Commissioner, arguing that the status quo wasn't abided by. If the status quo was abided we would probably not be here, Commissioner. We would have resolved this last week.

PN251

THE COMMISSIONER: That may be the case, you may not have resolved it last week, but there's always the opportunity for more talk. But quite frankly, the company doesn't have to convince you, Mr Cochran, it has got to convince its employees that its new method of work is safe and effective. The company has to carry the day with its employees, not have a blue with the NUW.

PN252

MR COCHRAN: I know that, Commissioner, but the employees go straight to the NUW as their members to represent them, that's how it normally works. You know that better than me, Commissioner. Well, what does the Commission propose then? I mean basically all we would like to do is have the status quo abided by and we sit down and have further talks and we can go through these issues.

PN253

THE COMMISSIONER: Well, what do you call the status quo? The status quo is what, the pre August 04 method of work? There have been eight discussions in the meantime, there has been two one week trials in the meantime. What's the status quo for you?

PN254

MR COCHRAN: Well, Commissioner, they had the two week trial and at the end of the two week trial it didn't continue. If it did I would like to know but that's my information, and the company wanted to implement a two month trial on both sites at the same time and we weren't dealing with one site, we were dealing with two sites that had their own issues and to my understanding the issues in the Rosehill site had as for what the delegates and members raised weren't even addressed and at the time we spoke about it was on the meetings that we had on the 13th, if I remember correctly, and the 16th, and basically on the 13th we
were - - -

PN255

THE COMMISSIONER: What issues did you raise on the 13th and on the 16th, which I think Ms Kestel was the 15th anyway? But what were the issues specifically raised on behalf of the employees?

PN256

MR COCHRAN: The issues we raised was actually the impact on OH&S, as for saying on the monitoring on what everyone does on site, the moral issue, which I know - - -

PN257

THE COMMISSIONER: Again, I don't understand what you mean by those words. The impact on OH&S, what perceived impact?

PN258

MR COCHRAN: The supervisor not having time to thoroughly do their job under OH&S because - - -

PN259

THE COMMISSIONER: That's not your concern.

PN260

MR COCHRAN: Well, Commissioner, it is my concern if there's potential for people to get hurt, there is my concern. If the delegates and the members are telling me, hang on, the person is not monitoring what everyone is doing, and we had a debate with the company saying, well look, each individual is in charge of the OH&S, we understand that, but the person, if I'm working on a table here and for example, someone is working five minutes away from me on another table doing what they do with the nail guns and everything else, then I'm not interested in what that person's doing, I'm only looking after my own self.

PN261

As for the supervisor and a grade 5 walking around monitoring what's going on, if they're doing something incorrect which could harm someone or harm themselves, then naturally we want to see them pulled up on it. Now, what we're saying is that if the supervisor has got extra duties and the leading hand as for the grade 5 is going to spend most of the time looking after the paint line from our information is more than 16, it's nearly 100, but the company no doubt would say it's 16 because 16 was the lowest day. I suggest to you the company handed you the highest day, but I know what the company is saying, I've - - -

PN262

THE COMMISSIONER: Well, do you have the statistics to challenge what the company has said?

PN263

MR COCHRAN: The company has got it right in front of them, Commissioner.

PN264

THE COMMISSIONER: No, no, have you got the statistics?

PN265

MR COCHRAN: Not on me, Commissioner, no, because they never handed
me - - -

PN266

THE COMMISSIONER: Or are you just mounting things again?

PN267

MR COCHRAN: No, they didn't hand me a copy of it.

PN268

THE COMMISSIONER: All I'm hearing is that you raised unknown but probably expected OH&S issues concerning the grade 5 employee.

PN269

MR COCHRAN: Well, by not having the person available to monitor what everyone is doing, Commissioner, surely there has to be potential there.

PN270

THE COMMISSIONER: I can't deal with potentials, nor can you deal with potentials.

PN271

MR COCHRAN: But wouldn't it be best to take the potential away so there is no likelihood?

PN272

THE COMMISSIONER: The best thing to do is to test it out and see whether your theory is right or whether the company's theory is right.

PN273

MR COCHRAN: Well, my theory is if you load someone up with extra work to do and you take them away from their main core duties as well, then naturally that's going to affect it.

PN274

THE COMMISSIONER: And where does that experience come from,
Mr Cochran?

PN275

MR COCHRAN: It's coming from exactly what the members and delegates have told me, Commissioner.

PN276

THE COMMISSIONER: From this work site?

PN277

MR COCHRAN: Yes.

PN278

THE COMMISSIONER: Because you've just relied upon your own experience to make a submission.

PN279

MR COCHRAN: No, no. I've spent a lot of years on the job, Commissioner; I've been around a while.

PN280

THE COMMISSIONER: What, in this place, this location?

PN281

MR COCHRAN: But the information I'm running from, Commissioner, if I say that, is from the membership and the delegates on those sites.

PN282

THE COMMISSIONER: Thank you, Mr Cochran. What were the issues specifically that were raised with you by the NUW on behalf of these employees following the trials at the end of 2005, raised with you at these two meetings in February and were they dealt with and how were they dealt with?

PN283

MS KESTEL: Commissioner, you will have to bear with me, I have got a lot of information in front of me. I understand that we do have minutes form the joint consultative - sorry, could you give me one second?

PN284

THE COMMISSIONER: Perhaps it might be time for each side to rethink what they want to do with the time that is available today. You are aware, as I am aware, that the dispute settling procedure in the agreement to which you are bound enables the parties to bring a dispute to the Commission for the assistance in resolving the matter via conciliation and conciliation is a three way vehicle, but it might well be that having heard what each other has said today to the Commission and my responses to what's been said today that you might each want to rethink what your positions are at the moment, whether in fact you want to seize the opportunity today while I presume all of the major players are here and confer directly about whether this trial can or cannot happen and where you want to take this application which is brought to the Commission for assistance in conciliation.

PN285

Remember, that's it. You only want conciliation. You don't want anybody making decisions for you. You have to make the decisions. That's your choice, that's your agreement. You have to live with the agreement. I'm happy to sit down with both sides and discuss the issues further or to continue a three way discussion with you, but in the end neither side can seek Commission orders or enforcement of anything. Now, I will make another room available for you to confer separately. I think on the sheer weight of numbers, Mr Cochran, you win this room and I will find another room available for the employer to sit and rethink what the position is and then you need to decide where you want to go from here.

PN286

I can give you 15 minutes for each side to reconsider what it wants to do with the time that's available today and then I invite you to confer together. If you would like me to, I'm happy to join you in this three way discussion or in turn meet with the parties separately and see if we can make some progress.

PN287

MS KESTEL: Commissioner, the company is very happy for that to occur. If perhaps the parties could meet with you separately first and then jointly.

PN288

THE COMMISSIONER: We'll find another conference room for you and your colleagues, Ms Kestel.

PN289

MS KESTEL: Thank you, Commissioner.

PN290

THE COMMISSIONER: I will nominally adjourn the proceedings for half an hour.

<SHORT ADJOURNMENT [10.56AM]
<RESUMED [12.36PM]

PN291

THE COMMISSIONER: It's now some time since proceedings were adjourned to give the parties an opportunity to confer separately and together. During that period of time the Commission conferred with each side separately. Is there anything that now needs to be placed on the public record?

PN292

MS KESTEL: Yes, Commissioner. The parties have had some discussions off record. The parties have reached an agreement that the two month trial will continue, however we have also agreed to have regular meetings and have agreed on specific dates for those meetings which I would like to put on record. There will be a joint consultative committee meeting at Rosehill on Tuesday, 7 March, which is next Tuesday, Commissioner. There will be weekly meetings at both sites. There will be a monthly meeting of both sites, so a joint site meeting at Rosehill on Friday, 31 March at 1 pm, after the first month. There will be a second joint meeting after the second month, on Friday, 28 April at 1 pm at Rosehill. If it pleases the Commission.

PN293

THE COMMISSIONER: Anything from the union's at this point, Mr Cochran?

PN294

MR COCHRAN: No, Commissioner, we have agreed to that and we have no problems with exactly what the company has put forward.

PN295

THE COMMISSIONER: Mr Cochran, it's your application, do you want me to hold the file open while this process continues?

PN296

MR COCHRAN: Yes, thank you, Commissioner. We would like that to happen, thanks.

PN297

THE COMMISSIONER: I commend the parties on the course of action that they have now placed on the public record. I think it's a sensible way to approach the impasse that currently exists. I will hold the file open for the two month period of the trial. I invite you to let me know at the conclusion of the trial the outcome of the trial so that the record of that outcome can be placed on the public record. Apart from that the Commission will consistent with the dispute settling procedure make itself available should the need arise during the period of the trial. All it leaves now is for me to adjourn these proceedings to a time and date to be fixed.

<ADJOURNED INDEFINITELY [12.39PM]