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Australian Industrial Relations Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 14579-1
SENIOR DEPUTY PRESIDENT KAUFMAN
AG2005/7497, AG2005/7498, AG2005/7499, AG2005/7500, AG2005/7501, AG2005/7902, AG2005/7903, AG2005/7904
APPLICATION BY SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION
s.170MH - Application to terminate agreement (public interest)
(AG2005/7497)
APPLICATION BY SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION
s.170MH - Application to terminate agreement (public interest)
(AG2005/7498)
APPLICATION BY SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION
s.170MH - Application to terminate agreement (public interest)
(AG2005/7499)
APPLICATION BY SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION
s.170MH - Application to terminate agreement (public interest)
(AG2005/7500)
APPLICATION BY SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION
s.170MH - Application to terminate agreement (public interest)
(AG2005/7501)
APPLICATION BY SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION
s.170MH - Application to terminate agreement (public interest)
(AG2005/7902)
APPLICATION BY SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION
s.170MH - Application to terminate agreement (public interest)
(AG2005/7903)
APPLICATION BY SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION
s.170MH - Application to terminate agreement (public interest)
(AG2005/7904)
MELBOURNE
11.15AM, MONDAY, 20 MARCH 2006
Continued from 23/01/2006
THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN MELBOURNE
Hearing continuing
PN505
THE SENIOR DEPUTY PRESIDENT: Are there any changes in the appearances?
PN506
MR B THOMPSON: Yes, there are, your Honour.
PN507
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Thompson.
PN508
MR THOMPSON: I seek leave to appear on behalf of Morgan's IGA Supermarkets.
PN509
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Thompson. Leave is granted.
PN510
MR THOMPSON: Thank you, your Honour.
PN511
THE SENIOR DEPUTY PRESIDENT: Who wants to address me first this morning? Mr Burke of the SDA.
PN512
MR BURKE: Perhaps if I start with a couple of housekeeping matters just to start with. I have sent to your office this morning a fax in relation to some information that the Commission sought last time in the certification of the 2002 agreement and what decision the Commission has made in that matter, the Full Bench. I have provided an extract for reference and I provide a copy of the transcript.
PN513
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN514
MR BURKE: The Commission when it published the decision of the agreement noted that it had made its decision in transcript and unless the Commission wishes me to go to that, it's on the very last page of the transcript, the Commission having heard the submissions of the MGAV and the SDA on that matter determined that the new list of respondents that were provided to the Commission which were single employer sites only form the basis of the new agreement and after those submissions, the Commission made its decision in transcript.
PN515
THE SENIOR DEPUTY PRESIDENT: And that was a decision to certify the Master Grocers Association of Victoria Enterprise Agreement 2002?
PN516
MR BURKE: That's correct, your Honour.
PN517
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN518
MR BURKE: Just one or two other quick matters. In 7498, I am not sure if it formed part of the material that we provided to begin with, a comparison between the agreement and the relevant award. We provided those in other matters and I would just like to provide a copy of that now.
PN519
THE SENIOR DEPUTY PRESIDENT: That's the application to terminate the SDA Maxifoods Warehouse Certified Agreement, is it, 1995?
PN520
MR BURKE: Yes. Within the bundle of documents we provided, we didn't provide that comparison and I just wish to provide that now.
THE SENIOR DEPUTY PRESIDENT: I will mark that comparison.
EXHIBIT #A2 COMPARISON DOCUMENT IN MATTER AG2005/7498
PN522
MR BURKE: And just for completeness, I've checked whether or not a comparison had been put in in relation to the '99 Master Grocers matter which is 7497. I think I put on in in relation to 2002 on the basis that they are the same agreement, but just for completeness, I provide a comparison.
PN523
THE SENIOR DEPUTY PRESIDENT: And that is one of the applications that is not opposed by anybody, is that right?
MR BURKE: Well, we will see, your Honour. Perhaps there may be something that Mr Thompson wishes to put in relation to that.
EXHIBIT #SDA3 COMPARISON DOCUMENT IN MATTER AG2005/7497
PN525
MR BURKE: Your Honour, perhaps I could foreshadow there may be submissions made by Mr Thompson and Mr Fischbacher about where the matter should head today. Our view is that the matters can and should be dealt with today. I am not sure whether you want to hear Mr Thompson first of Mr Fischbacher, but we'd say that we're prepared to put submissions today. We think the matters should be dealt with today, notwithstanding things may or may not have happened in the last six weeks that have been ordered by the Commission.
PN526
THE SENIOR DEPUTY PRESIDENT: Let's see why the employers say that these matters should not proceed today first.
PN527
MR BURKE: If the Commission please.
PN528
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Fischbacher.
PN529
MR FISCHBACHER: Thank you, your Honour. Your Honour, we've provided to all parties the submissions that were I believe provided to the Commission this morning as well as statutory declarations of Mr Paolucci and Mr Blake sworn 17 March and this morning respectively. I think we've got copies of the statutory declarations and I hand those up.
PN530
THE SENIOR DEPUTY PRESIDENT: Yes, I think you should. I think I received something by email, but not the attachments. We will just start again, I think. Mr Thompson in Sydney, you don't have these documents, I assume?
PN531
MR THOMPSON: No, I don't have a copy of them, your Honour.
PN532
THE SENIOR DEPUTY PRESIDENT: Well, you will just have to make do as best you can.
PN533
MR FISCHBACHER: The attachments, your Honour, are by and large copies of Q and A documents, memos to staff, copy agreements that have been circulated in the past. The substance of those are taken from the statutory declarations themselves, your Honour.
PN534
THE SENIOR DEPUTY PRESIDENT: Let us just identify the statutory declarations. Mr Burke, do you have any objection to the statutory declarations being received?
PN535
MR BURKE: We don't have any objection. However, we do have issues we wish to raise about some inaccuracies and the opportunity to cross-examine.
PN536
THE SENIOR DEPUTY PRESIDENT: Yes. Well, do you have the deponents available for cross-examination?
PN537
MR FISCHBACHER: Yes, we do, your Honour.
PN538
THE SENIOR DEPUTY PRESIDENT: In that case, the statutory declaration of Brendan Edward Blake made on 17 March 2006 will become exhibit - have I marked the other statutory declarations? We will just receive it at this stage. It's been identified. You can take me to whatever parts of it you want to.
PN539
MR FISCHBACHER: Thank you, your Honour.
PN540
THE SENIOR DEPUTY PRESIDENT: The statutory declaration of Pino Paolucci made today will also be received. Yes, Mr Fischbacher.
PN541
MR FISCHBACHER: Thank you, your Honour. Your Honour will recall that we were last before you on 23 January and at that time, of course, your Honour had adjourned the matters until this morning, to a large extent, to permit the respondents that I represent the opportunity to complete the consultation and feedback process and, in fact, to submit agreements for a voting process prior to today. If I may just quickly and I won't take you through verbatim our statutory declarations, but I will use Mr Paolucci's statutory declaration sworn this morning, if I can take your Honour to paragraph 4 on page 2 - - -
PN542
THE SENIOR DEPUTY PRESIDENT: If I can interrupt you there, do you want to cross-examine Mr Paolucci on his statutory declaration, Mr Burke?
PN543
MR BURKE: Yes, we would.
PN544
THE SENIOR DEPUTY PRESIDENT: It might be appropriate to be done before you make submissions on it.
PN545
MR FISCHBACHER: Certainly.
PN546
THE SENIOR DEPUTY PRESIDENT: Is he available?
PN547
MR FISCHBACHER: He is.
THE SENIOR DEPUTY PRESIDENT: Would you go in the witness box, please, Mr Paolucci?
<PINO PAOLUCCI, SWORN [11.24AM]
<EXAMINATION-IN-CHIEF BY MR FISCHBACHER
PN549
MR FISCHBACHER: For the record, could you please state your full name and address?---My name is Pino Paolucci, (address supplied).
PN550
You've described in your statutory declaration, Mr Paolucci, an address of (address supplied). That address is?---My business address.
PN551
Mr Paolucci, do you recall swearing a statutory declaration earlier today?---Yes, I do.
PN552
Could we provide a copy, your Honour, to Mr Paolucci?
PN553
THE SENIOR DEPUTY PRESIDENT: Yes. Do you have a copy available? I should mark Mr Paolucci statutory declaration as an exhibit. Have you tendered any exhibits in these proceedings?
PN554
MR FISCHBACHER: I think we - - -
PN555
THE SENIOR DEPUTY PRESIDENT: I've lost track of them.
PN556
MR FISCHBACHER: So have I, but I believe there were earlier statutory declarations of Mr Paolucci and Mr Blake.
PN557
THE SENIOR DEPUTY PRESIDENT: But they were not tendered?
PN558
MR FISCHBACHER: No, they weren't tendered, your Honour.
THE SENIOR DEPUTY PRESIDENT: To save time, I will start a new sequence of exhibits.
EXHIBIT #F1 STATUTORY DECLARATION OF PINO PAOLUCCI DATED 20/03/2006
PN560
MR FISCHBACHER: Thank you, your Honour.
PN561
THE SENIOR DEPUTY PRESIDENT: And that statutory declaration is made in matters AG2005/7902, 7904, 7498 and 7500, is that correct? That appears at the top of his statutory declaration.
PN562
MR FISCHBACHER: Yes.
**** PINO PAOLUCCI XN MR FISCHBACHER
PN563
THE SENIOR DEPUTY PRESIDENT: They're the four agreements that you oppose the termination?
PN564
MR FISCHBACHER: The statutory declaration in fact, your Honour, has all eight Commission references.
PN565
THE SENIOR DEPUTY PRESIDENT: Yes.
PN566
MR FISCHBACHER: The four applications to which we oppose are 7902, 7903, 7497 and 7499, your Honour.
PN567
THE SENIOR DEPUTY PRESIDENT: Yes, it's only in those matters that you tender the statutory declaration?
PN568
MR FISCHBACHER: That's correct, your Honour.
PN569
THE SENIOR DEPUTY PRESIDENT: The exhibit is F1 in each of those matters.
PN570
MR FISCHBACHER: Thank you, your Honour. I have no questions of the witness.
THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, Mr Burke.
<CROSS-EXAMINATION BY MR BURKE [11.26AM]
PN572
MR BURKE: Mr Paolucci, you have in your statutory declaration today at number 4, you've outlined the steps there that the company
undertook following the hearing back in January before his Honour. Were you present at that hearing?
---No, I wasn't. I was on leave at the time.
PN573
You were therefore advised of the steps that were to take place?---Yes.
PN574
Who advised you?---In consultation with Mr Fischbacher.
PN575
Mr Fischbacher outlined to you the steps that the company should take?
---Outlined the steps that we would be looking at and the company made a decision of the steps that we would be taking.
PN576
In that matter, then, were you aware that the direction of the Commission was that votes were to be taken on a final agreement by 15 March?
**** PINO PAOLUCCI XXN MR BURKE
PN577
MR FISCHBACHER: I object, your Honour.
PN578
THE SENIOR DEPUTY PRESIDENT: Yes.
PN579
MR FISCHBACHER: There was no such direction made by yourself on 23 January. The only order that was made on 23 January was that this matter was adjourned to this morning.
PN580
THE SENIOR DEPUTY PRESIDENT: Yes, I think you need to be a bit more precise in the way you put that question, Mr Burke.
PN581
MR BURKE: Were you made aware that the matter was to come back today to the Commission and that these matters should be finalised for the certification of agreements on today's date?---I was made aware that we would be coming back today and for the steps that would be taking place, but we have obviously had various discussions with staff in the meantime and our decisions have been made to this point following those discussions.
PN582
Well, I take it, though, that you, as you say at number 6 of your statutory declaration, you say:
PN583
I accept that it was intended to have a vote conducted by 20 March.
PN584
?---Yes.
PN585
I certainly sought to strictly adhere to the steps outlined in the Le Max group of supermarkets, a memo to all staff and to a large extent I've managed to do so.
PN586
Why wouldn't the company have its vote and come back today and say that it had been finalised?---Because of the fact that we employ some 700 employees, the first round of consultations, meetings, question and answer meetings that we had with staff, we had a turn-out of approximately 100.
**** PINO PAOLUCCI XXN MR BURKE
PN587
THE SENIOR DEPUTY PRESIDENT: Why so low?---Because early February, we still do have a number of people on annual leave. In our industry, with the volume of staff that we have, annual leave generally commences, the main bulk of annual leave generally commences around the Christmas period and follows through to some time mid-March, so we did have a number of people away at that point in time. We had some 100 turn up. We had a lot of questions with also added confusion, so we thought - and there were a number of amendments made because of the meetings that we had with staff, so we thought it would be best to have another round of meetings with staff, to give them the opportunity to attend, to those who didn't and to ask questions and to also bring to the table those amendments that we had made for them and with the first set of meetings, the staff that came did leave with a much clearer understanding and with the second round, we're finding the same. Those who did not have a chance to attend are now more comfortable with certain areas and with the amendments and we have a further two meetings to be held this Wednesday and this Friday and Thursday and that will conclude our second round. We just found it important to give the staff the opportunity to have another chance at sitting down with the company in order to reach a positive outcome and I think the result that expressly puts that forward is that we have had a number of amendments from the first round of meetings and those amendments need to be explained the second time around to those who did not have a chance to attend the first and we also are having staff that attended the first meeting come to the second to gain a clear understanding, to go through the amendments.
PN588
MR BURKE: But the company was given four weeks to do that process already. Why did you fail to do it?---As I've outlined, we felt it necessary to give staff the opportunity. You know, 700 staff and to have approximately 100 turn up is a small number and we just felt it necessary to give them the further opportunity to attend another round of meetings.
PN589
Well, that's an average of 20 per store who attended meetings?---Roughly, yes.
PN590
And would you say that the majority of those employees were permanent employees?---The majority of those possibly permanent.
PN591
The meetings were held between 12 pm and 5 pm each day, so it would have been that the majority of employees were permanent employees, therefore employees most affected by the new agreement. Wouldn't you therefore have seen enough to be, of the staff in that time to explain the agreement to them?---Well, I think the numbers that turn up especially show the ones who are able, it's a small number, so you need to give staff an opportunity as yourself, Mr Burke, when you conduct meetings and if you have a low turn-out, well, you think, well, we should give a further opportunity.
**** PINO PAOLUCCI XXN MR BURKE
PN592
That was the process the company was going to follow. You did follow it and followed it having eight meetings. You just didn't follow it when it came to putting the document - - -?---Well - - -
PN593
Why should you be granted any further adjournment when you haven't followed what you yourself say you should follow?
PN594
MR FISCHBACHER: Your Honour, I object. I believe the witness has answered the question. He's simply putting another turn on what's been asked. The witness has been asked the same question on two occasions now.
PN595
THE SENIOR DEPUTY PRESIDENT: He's now being asked why he should be granted an adjournment. I will allow the question?---As answered previously, we have had amendments to the first document given to staff, so I felt it important for staff to have the amendments in front of them and to have a further round of meetings and we've scheduled the vote to be held on 5 April, which is only approximately two weeks, so effectively they had plenty of time to consult with us and us with them and the vote is to be held on the 5th and we - - -
PN596
MR BURKE: Well, is your answer that you need an adjournment because you didn't finalise what you were supposed to do in the four weeks?---We need the adjournment because we needed more time with staff and staff needed more time.
PN597
Is it true that the document that has now been provided to staff is in fact the same document that was put to staff during these last meetings, therefore there's no change?---My understanding is that it has the amendments to it. That's my understanding.
PN598
Yes, so therefore it's only the second - it is in fact the document that the company discussed would be amended at those meetings. There's therefore no further need for an adjournment because the company's put the same document back again to staff?---Staff - - -
PN599
MR FISCHBACHER: Your Honour, if I may, just to clarify matters, the agreement that has - - -
PN600
THE SENIOR DEPUTY PRESIDENT: No, not in the middle of evidence. You're not giving evidence, Mr Fischbacher. Mr Burke, I am a little confused because you have not sufficiently for my purposes identified the agreement. What do you mean by the same?
**** PINO PAOLUCCI XXN MR BURKE
PN601
MR BURKE: In the bundle of documents you've been provided with today, your Honour, in PP1, my understanding from Mr Fischbacher was that the first - - -
PN602
THE SENIOR DEPUTY PRESIDENT: Clarify that with the witness, please.
PN603
MR BURKE: Do you have PP1 in front of you?---No, I don't.
PN604
After the set of memos, the first document which is Le Max Group Supermarkets Workplace Agreement 2006 - - -
PN605
THE SENIOR DEPUTY PRESIDENT: It's a question and answer document, isn't it?
PN606
MR BURKE: Well, no, there is a full agreement, your Honour. It has at the bottom of it 07/03/06.
PN607
THE SENIOR DEPUTY PRESIDENT: Sorry, this is PP1 after the - - -
PN608
MR BURKE: Sorry, there is a Q and A, yes, then further on there is another memo, another set of memos and then after that is a document, at the bottom is 07/03/06.
PN609
THE SENIOR DEPUTY PRESIDENT: I think that's a different exhibit. It's exhibit PP2, I think, Mr Burke, which perhaps explains my confusion.
PN610
MR BURKE: They're all in a bundle, yes. Can I take the witness to PP2?
PN611
THE SENIOR DEPUTY PRESIDENT: Do you have that, Mr Paolucci?
PN612
MR BURKE: In that document, it has a number of changes to the agreement underlined. Do you have that?---Mm.
PN613
My understand is that the next document - - -
PN614
THE SENIOR DEPUTY PRESIDENT: When was PP2 circulated, Mr Fischbacher?
PN615
MR FISCHBACHER: It was circulated just prior to the second round of meetings.
**** PINO PAOLUCCI XXN MR BURKE
PN616
THE SENIOR DEPUTY PRESIDENT: Which was? Between 15 and 23 March? Was it circulated before 15 March? You say that a memo was circulated to all staff on 7 March. Is that PP2?
PN617
MR FISCHBACHER: It's paragraph 4 on the statutory declaration, your Honour.
PN618
THE SENIOR DEPUTY PRESIDENT: Yes, 4G?---7 March.
PN619
So that's when the memo was circulated together with the amended draft award. Yes, Mr Burke, thank you.
PN620
MR BURKE: Now, in terms of that document and if we go to PP2 - - -
PN621
THE SENIOR DEPUTY PRESIDENT: PP3 is the final proposed agreement that is - - -
PN622
MR BURKE: It's the final proposed agreement.
PN623
THE SENIOR DEPUTY PRESIDENT: To be voted on.
PN624
MR BURKE: Yes, your Honour. My understanding is that document and PP2 are the same other than the marked up lines have been deleted. Therefore it is the same document that is put to employees during the meetings that you've had earlier which was part of the directions of the Commission and therefore the company has had the opportunity in the last four weeks to follow the directions of the Commission. Why should there still be a further adjournment? If that document is the document that people are going to vote on, they've known about it for more than 14 days?---We've had constant questions from staff and we felt the best way to address those is to have a further set of meetings. It's very difficult to address the volume of questions individually, over the phone or by visit, so we felt it necessary to have a second round of meetings to address as many staff members as possible. I refer to my previous answer in that the approximately 100 staff that attended the first round of meetings represents a minority of our employment, so we felt it necessary to give staff as much of a chance as possible to come and ask questions and be it the document that may be voted on, staff still have questions and the best way to address that is in a meeting at each store where staff can come and go when they wish, between those allotted times to ask questions and when they are there and talking with the company representatives and other staff members, we find for them it's a very beneficial forum.
**** PINO PAOLUCCI XXN MR BURKE
PN625
That wasn't the question I was asking you. I was asking you and that is your answer, if you have so many questions, why wasn't the second document, the document PP3, changed on PP2? If there were so many questions, why in fact is the document exactly the same and therefore why wasn't that put to a vote?---I don't understand where you're coming from.
PN626
Do you agree, as I've said before, that the document PP3 is the same as PP2 other than the changes have been deleted and where the mark-ups are, that that is the case and you said you had a number of questions in those first set of meetings, you make no change to the document that you're now asking people to vote on? Your answer is therefore not valid.
PN627
THE SENIOR DEPUTY PRESIDENT: Just a minute, Mr Paolucci. There seems to be a problem with the recording system for the transcript. Somebody is not coming through clearly enough. Yes, I think your last question has been recorded, Mr Burke, so you may answer it, Mr Paolucci?---Well, I say it is valid because we're still half way through those meetings, so it could well be that there may be another amendment that comes from the staff.
PN628
MR BURKE: Would you therefore seek a further adjournment in that matter?
---No, no.
PN629
Then how could you make that statement, Mr Paolucci? The document you have put is a document that people are going to vote on and
it's exactly the same document you've put out to people when you had your first round of meetings?
---We are still half way through our second round of meetings.
PN630
MR FISCHBACHER: Sorry, I don't want to constantly object, but the evidence was not what Mr Burke has just said. Can I just make this clear? The first version was circulated in January. We then had feedback sessions and a Q and A document published. Following the first set of feedback meetings with staff, we then - the respondents published the second version agreement. It was published subsequent to the feedback meetings. The question that Mr Burke just put to the witness was why was it that the agreement that you currently now intend to vote on is the same version agreement that was before staff at the time of the feedback sessions? That's not correct. It was as a result of the feedback sessions that a second version agreement was provided.
PN631
THE SENIOR DEPUTY PRESIDENT: And that's PP2.
**** PINO PAOLUCCI XXN MR BURKE
PN632
MR FISCHBACHER: And that is PP2.
PN633
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Burke.
PN634
MR BURKE: Your Honour, that's exactly the same document in PP3. That's the point the witness was also - - -
PN635
THE SENIOR DEPUTY PRESIDENT: Mr Paolucci has accepted that, that PP3 is the same as PP2.
PN636
MR BURKE: Exactly the same. In seeing you say only a majority of your staff, approximately 100, how many permanent employees would you have possibly covered by this new agreement?---Some 60, roughly 60 per cent of our staff would be permanent.
PN637
So therefore they would have been available to come to those meetings during the time that they were listed?---Not when they're on leave, Mr Burke. It's pretty difficult to attend.
PN638
Would 60 per cent of your staff be on leave?---Well, it's hard to put a figure on it, but as you well know in this industry, a lot of permanent staff are away at that time of the year, to be on holidays with school children.
PN639
This is in February?---Yes, February.
PN640
And school has gone back?---Yes, school goes back, but there's also a number of employees that do like to have holidays when school goes back, because it's less busy in certain areas where they go on holiday.
PN641
So is it your suggestion, then, that a large number of those 600 people are on annual leave in February?---No, no. People are on leave in February. You've got to understand that and you keep asking me the same question. People are away, people can't attend for one reason or another, so the second round is just an opportunity for people to have a say and provide questions so we can answer them, so they can have a clearer understanding.
PN642
Notwithstanding that the final document that's been presented is not changed as a result of those meetings. Is that correct?---The final document changed as a result of the first meetings.
**** PINO PAOLUCCI XXN MR BURKE
PN643
Yes, but it's no different to the middle document.
PN644
THE SENIOR DEPUTY PRESIDENT: Yes, we know that, Mr Burke.
PN645
MR BURKE: If I take you again back to number 4 of your statement today, statutory declaration, you say at 4C that you circulated a memo and Q and A document to all staff. Is that on the front - that is in PP1, the first page of PP1, is that the memo?---Yes.
PN646
Which is signed by Mr Leo W Blake. I just wanted to point out, well, ask you, if I take you down to the middle where the paragraph starts - your Honour, perhaps before we go any further, I should have suggested that Mr Blake not be present in the room, as he may be called to give evidence.
PN647
THE SENIOR DEPUTY PRESIDENT: Yes. Do you mind if Mr Blake leaves the - - -
PN648
MR FISCHBACHER: I have no violent objections, your Honour. It's a different respondent, different employer, different workplace, a different issue entirely, is it not? The questions I presume will be similar, so to that extent, I have no objection.
PN649
THE SENIOR DEPUTY PRESIDENT: Well, it might be desirable that Mr Blake not be present. Technically, he is entitled to leave, but if you don't object to him being absent, Mr Fischbacher, it might go to credit.
PN650
MR BURKE: Nothing personal about Mr Blake, but he is going to be a witness.
PN651
THE SENIOR DEPUTY PRESIDENT: I am sure he's not taking it personally.
PN652
MR BURKE: In relation to the memo, I go to the paragraph:
PN653
We do suggest, however, that all staff carefully read the Q and A document.
PN654
Do you have that paragraph?---Yes.
PN655
If I go to the second sentence:
PN656
We stress that unless the agreement is accepted by staff in the voting processes to be held shortly, all staff's terms and conditions will only be underpinned by the award, conditions that will be further stripped back under the new Work Choices laws.
**** PINO PAOLUCCI XXN MR BURKE
PN657
THE SENIOR DEPUTY PRESIDENT: Sorry, where are you reading from?
PN658
MR BURKE: This is the front of PP1, the paragraph that starts:
PN659
We do suggest, however, that all staff -
PN660
THE SENIOR DEPUTY PRESIDENT: Yes.
PN661
MR BURKE: The second sentence, I wanted to ask you about the suggestion that the company says:
PN662
The conditions will be further stripped back under the new Work Choices laws.
PN663
Firstly, why did the company make that statement to employees when the matter before employees was whether or not they were going to vote on a new agreement and so if you could answer that?---That was put into the letter because of the confusion among staff. If you do recall at the time of the year, there was a lot of television advertising regarding the Work Choices and also a lot of union advertising. Staff were very, very confused in terms of Work Choices, how does that affect us, so we felt it necessary to include in the letter that we will be having a vote, one vote only and if it was to succeed, it succeeded. If it was to fail, then we would be going back to what the law stipulated at that point in time in the award and they may be stripped further back by Work Choices. Staff must understand when the advertising campaign was on, very confused by all of this, so they kept asking us what has Work Choices got to do with us? How does this affect us? So that was the reason why we placed that in the letter.
PN664
Were you aware that as part of the process, the SDA was not to canvass with employees the view that - their views of the agreement being terminated? Are you aware of that?---Well, I think there was times, I think there may have been some discussion. I can't say that it was totally, no.
PN665
So are you saying that during that process of the meetings, the company had no objection to the SDA seeking the views of employees as to whether or not the agreement should have been terminated?---The SDA had members at some of those meetings.
PN666
Is your answer therefore yes, the company had no objection?---I think there was an agreement in place that the SDA was able to attend those meetings.
**** PINO PAOLUCCI XXN MR BURKE
PN667
Yes, in those meetings, are you saying that we could have asked employees their view on whether or not - perhaps if you look at me, Mr Paolucci?---I am looking at you, Mr Burke.
PN668
If you look at me in being questioned. In those meetings, do you say that the SDA was entitled to ask employees their view as to whether or not the agreement should have been terminated?---It is my understanding the SDA had some discussions with employees during those meetings.
PN669
Do you answer yes, then?---Yes.
PN670
Your Honour would be aware that that was not what was going to happen.
PN671
THE SENIOR DEPUTY PRESIDENT: I am sorry?
PN672
MR BURKE: Your Honour would be aware that we were not to ascertain the views of employees during this process. That was quite a deliberate request of the Commission and of Mr Fischbacher in a letter to ourselves and said if we did such a thing, that he would make an urgent application to the Commission.
PN673
MR FISCHBACHER: Well - - -
PN674
THE SENIOR DEPUTY PRESIDENT: That is a submission, isn't it? Do you want to ask your next question?
PN675
MR BURKE: Yes, your Honour.
PN676
Can you tell me, then, in relation to the suggestion that conditions will be further stripped back under the new Work Choices laws, can you tell me what conditions will be stripped back?---Well, I didn't know then, I wasn't aware, because it hadn't come out.
PN677
Why would you tell employees about some new legislation that therefore did not apply? Why would you scare them with that?---Well, it's not scaring.
PN678
MR FISCHBACHER: If I may object, the purpose of the questioning seems to have taken somewhat of a tangent movement to where we should be and I'm just curious as to where Mr Burke is taking all this. I thought it was more about the process that we undertook, rather than words in a memo.
**** PINO PAOLUCCI XXN MR BURKE
PN679
THE SENIOR DEPUTY PRESIDENT: Mr Fischbacher, you're objecting to the relevance in that question. What is the relevance, Mr Burke?
PN680
MR BURKE: Well, as I've had answered by the witness, the company had no objection to us ascertaining the views of the employees and that there should have been no discussion with employees about the new legislation. If you can remember, your Honour, you made it quite clear that you would deal with these matters under the current legislation and therefore there should have been no mention of the new legislation. It should have been what is currently in place and we feel that the matter has been prejudiced by the company taking this path and also by the admission today by Mr Paolucci that he was happy for us to ascertain the views. We would have perhaps been in a much better position - - -
PN681
MR FISCHBACHER: Well - - -
PN682
THE SENIOR DEPUTY PRESIDENT: Yes, it's a question of the relevance, but I will allow it. Repeat the question, please.
PN683
MR BURKE: Yes, your Honour.
PN684
The question therefore is why did you go to the extent of telling people about the changes in the legislation when you weren't aware of them and it had no relevance to the matter before the Commission?---I don't think anyone was aware of the exact components of the legislation, but everyone is aware that a lot of rights will be stripped back. Everyone was aware that they were going to be stripped back, so - - -
PN685
I think you're the only one, Mr Paolucci. That is not what the minister says.
PN686
MR FISCHBACHER: Objection.
PN687
THE SENIOR DEPUTY PRESIDENT: Yes. Save your comments for your submissions, please, Mr Burke. You don't need to answer that question. Next question, Mr Burke.
PN688
MR BURKE: Well, you say, though, that there will be changes under the new legislation. Can you tell the Commission what changes those are?
PN689
THE SENIOR DEPUTY PRESIDENT: You don't need to answer that question. Next question, Mr Burke. Can you tell me the changes, Mr Burke?
**** PINO PAOLUCCI XXN MR BURKE
PN690
MR BURKE: Yes, I can, your Honour, in relation to what the minister has said.
PN691
THE SENIOR DEPUTY PRESIDENT: I don't want you to tell me. You maintain that you can tell me the changes to the Act by the new legislation, do you?
PN692
MR BURKE: Well, your Honour, I was going to put in relation to this matter, the conditions being further stripped by the new Work Choices laws, the minister in his statement yesterday made it clear there would be no changes to awards and I have his statement, his press statement.
PN693
THE SENIOR DEPUTY PRESIDENT: No, Mr Burke, this is a document that went out long before the minister made a statement yesterday.
PN694
MR BURKE: I am sorry, this document?
PN695
THE SENIOR DEPUTY PRESIDENT: PP1 is a document that went out long before the minister made his statement yesterday which I've not seen and, Mr Burke, PP1 was a document that was circulated to employees indicating that a certified agreement was sought to be made and Mr Fischbacher didn't object and I let it go, if I may say, confused the issue by asking this witness questions about why he had made statements in relation to the matter that's in front of me. This statement was made in relation to the proposed application for certification which is not the matter that's in front of me and I think you need to keep that distinction in mind.
PN696
MR BURKE: Yes, your Honour.
PN697
If I take you to 4D of your statutory declaration, the very last sentence:
PN698
The SDA was given the opportunity to attend at these meetings and did so.
PN699
Are you aware that the - which meetings are you aware of that the SDA attended?
---The SDA attended Upper Ferntree Gully, attended Carrum Downs and Blackburn Heights.
PN700
Yes, so in terms of attending these meetings, we attended three of the stores for some of the meetings, therefore we didn't attend to all sites?---Yes, well, that was your call, not mine.
**** PINO PAOLUCCI XXN MR BURKE
PN701
THE SENIOR DEPUTY PRESIDENT: The question is did the SDA attend all sites? The answer is no?---No, they didn't, no.
PN702
MR BURKE: Well, I should say that where we did ask to attend, we were invited to attend, is that correct?---You attended three stores as far as I'm aware.
PN703
You're not aware that we asked to attend only three stores and we only attended three stores?---To my knowledge, you attended three stores.
PN704
Yes, I am just trying to make the point that we didn't attend each store. I wouldn't want the Commission to - what I am trying to put to you is I don't want your statement to be read that we attended all sites and all meetings. That's not correct, is it?---No, you didn't attend all sites.
PN705
You statement could make that assumption. I am happy with your answer, Mr Paolucci?---No, not necessarily. It says:
PN706
The SDA was given the opportunity to attend at these meetings and did at these meetings.
PN707
It can mean two meetings, it can mean four, it can mean five.
PN708
I am just clarifying with you that - - -
PN709
THE SENIOR DEPUTY PRESIDENT: I know that, Mr Burke.
PN710
MR BURKE: Yes. I am trying to stop the witness answering any further.
PN711
THE SENIOR DEPUTY PRESIDENT: He went on because you asked another question that you didn't need to ask, after having been satisfied with the answer before that last question.
PN712
MR BURKE: I am trying to be satisfied with his answers, your Honour.
PN713
If I could take you to 5 of your statutory declaration?---Page 5?
PN714
Point 5, Mr Paolucci.
PN715
THE SENIOR DEPUTY PRESIDENT: Yes, that's on page 4.
**** PINO PAOLUCCI XXN MR BURKE
PN716
MR BURKE: Yes, where you say, the second line there:
PN717
If this vote is successful, the Le Max group of companies will seek to have the AIRC certify the agreement.
PN718
Is it your understanding that the agreement can be certified by the Commission after 5 April 2006?
PN719
MR FISCHBACHER: Your Honour, one has to take into account the fact that whilst this statutory declaration was sworn this morning, copies were provided on Friday before the announcement, so to that extent, I just want to make the point that that statement was prepared and provided at the time - - -
PN720
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Fischbacher. Yes, Mr Burke, it's a question of law. If the legislation is proclaimed and comes into operation before 5 April, there may be some questions arising. It will depend on the transitional provisions, will it not? It's not a matter for this witness. It's a matter for submissions.
PN721
MR BURKE: Yes, your Honour. I just wanted to check, as Mr Paolucci had signed this this morning, whether he stood by that statement.
PN722
THE SENIOR DEPUTY PRESIDENT: Do you stand by it, Mr Paolucci?---I provided the document last week.
PN723
Do you stand by your statement that the agreement will be sought to be certified if it's voted upon?---Yes.
PN724
MR BURKE: Point number 7, you talked about the large amount of feedback regarding the proposed agreement, 428 questions. That's roughly four questions per person who attended, is that correct?---For those that attended, you don't know if the questions were by those who attended or those who didn't have an opportunity.
PN725
THE SENIOR DEPUTY PRESIDENT: And these were not questions asked at the meeting?---This is a question and answer document, yes.
PN726
MR BURKE: And you were aware, though, that the purpose of the adjournment was that following the feedback, that's 428 questions that the company was to finalise a document to have a vote by today's date?---I've already answered that. I would be repeating myself.
**** PINO PAOLUCCI XXN MR BURKE
PN727
Yes, if you wouldn't mind. You were aware?---Well - - -
PN728
MR FISCHBACHER: The question has been asked I am not sure how many times, your Honour. I am not keeping a tally up, but could the question be clarified, because I am myself confused about it.
PN729
THE SENIOR DEPUTY PRESIDENT: Yes, perhaps you can ask it again, Mr Burke, and try to make it clearer.
PN730
MR BURKE: You were aware that following whatever number of questions that there were answers, that the company had enough time under its timetable that it proposed and accepted to finalise a document, to have a vote by today's date?
PN731
MR FISCHBACHER: I object to the question, your Honour. The question has been asked before and answered before.
PN732
THE SENIOR DEPUTY PRESIDENT: I think it has, hasn't it? He was aware?
PN733
MR BURKE: I am sorry?
PN734
THE SENIOR DEPUTY PRESIDENT: He was aware.
PN735
MR BURKE: That's another point of the statutory declaration. I just wanted to make sure that Mr Paolucci was aware that notwithstanding the large number of questions that he says were asked, that it was the job of the employer to provide a document to be voted upon by today's date. It did not matter the number of questions is the point we would make.
PN736
THE SENIOR DEPUTY PRESIDENT: Yes, you can answer that question?
---I guess the number of questions, the lack of turn-out, the time of the year and the confusion that reigned has really pushed it
out, because we needed to have a second round of meetings. We would have preferred to have a more clear cut, less questions, more
turn-out and have concluded the process by now. That would have been our preferred position. As you know with conducting these
matters, legal costs continue to mount up and we would much prefer to have concluded it by now, but that has not been the case.
PN737
MR BURKE: Talking about costs, which was going to be my next question, which is 7C, do you wish to - you say you haven't completed the vote by now and talk about given the costs involved in the voting process, why would there be any costs involved in the voting process?---Printing costs, supplying the 700 documents and costs because I refer once again back to legal costs. We prefer, we would prefer to get this over and done with quicker, but it hasn't been the case.
**** PINO PAOLUCCI XXN MR BURKE
PN738
Now, why would it be in the public interest that the company's legal costs be taken into consideration?
PN739
THE SENIOR DEPUTY PRESIDENT: That's a matter for me, Mr Burke. You can make submissions as to why I shouldn't take that into account or should take that into account.
PN740
MR BURKE: In terms of costs, then, hasn't the company already had the final document to be voted on provided to staff?---It's been provided to staff, for those who want a copy, yes.
PN741
The company has already put that cost into play, hasn't it? It's already made those documents available.
PN742
MR FISCHBACHER: That is not what the paragraph says. Your Honour, should I take - - -
PN743
THE SENIOR DEPUTY PRESIDENT: No, Mr Fischbacher, I think it's more efficient to just allow the question to be answered. What weight I place on it is a different matter?---I guess simply the costs are probably not in the public interest, but I can't see it's - - -
PN744
MR BURKE: Yes, but it has been a reason why you haven't concluded the vote up to now, the need for more feedback generally to gain greater assurance that staff are happy with the proposed agreement before proceeding to the vote, given the costs involved, so it has been a factor up until now?---No, no. The costs, I am probably clarifying my answer for you. The reason why is to give staff further opportunity to comment and attend meetings. As far as myself and the company are concerned, we would have preferred to have had this concluded by now, because of the costs associated. That's to do with the company and myself. In terms of why it's come about is because of the employees and giving them the opportunity. That's the clarification that must be noted.
PN745
Your Honour, I was wondering if it's possible to ask the witness any questions in relation to his earlier statutory declaration.
PN746
THE SENIOR DEPUTY PRESIDENT: Yes. Which statutory declaration is that, Mr Burke?
**** PINO PAOLUCCI XXN MR BURKE
PN747
MR BURKE: It hasn't been tendered, your Honour. It was on 22 December.
PN748
MR FISCHBACHER: Your Honour, I have a second original I can hand up, if that would assist.
THE SENIOR DEPUTY PRESIDENT: Yes. I have a photocopy. Mr Fischbacher, would you mind going through the formalities again, before Mr Burke cross-examines on that document?
<FURTHER EXAMINATION BY MR FISCHBACHER [12.05PM]
PN750
MR FISCHBACHER: I am just finding a copy for you, Mr Paolucci.
PN751
THE SENIOR DEPUTY PRESIDENT: Well, hand him the original for the purposes of identification at this stage, anyway.
PN752
MR FISCHBACHER: Thank you. If you could please take that statutory declaration, Mr Paolucci. I would simply ask is the name and address correct on the statutory declaration?---Correct.
PN753
Is that a statutory declaration that you swore on 22 December 2005 before myself?---That is correct.
PN754
THE SENIOR DEPUTY PRESIDENT: You tender that?
MR FISCHBACHER: I tender it.
EXHIBIT #F2 STATUTORY DECLARATION MADE ON 22/12/2005
THE SENIOR DEPUTY PRESIDENT: In the same matter numbers as exhibit F1.
<CROSS-EXAMINATION BY MR BURKE [12.07PM]
PN757
MR BURKE: If I could take you to point number 4 of that statutory declaration. You started there by asking my knowledge of the Le Max group of supermarkets covered by the following certified agreements. Can I take you to Heidelberg and mention there the Master Grocers Agreement 2002, are you aware that the agreement does not apply and the common rule award would apply?---That would have been at that time what I would have understood to be the position.
**** PINO PAOLUCCI XXN MR BURKE
PN758
THE SENIOR DEPUTY PRESIDENT: So you do accept that it does not apply to Heidelberg?
PN759
MR BURKE: I don't think Mr Paolucci is aware that it doesn't.
PN760
MR FISCHBACHER: Your Honour, that's a question of submissions. The fact is that we assert it is bound by that agreement at that site.
PN761
THE SENIOR DEPUTY PRESIDENT: I see, it's a contested matter of law.
PN762
MR FISCHBACHER: Well, it appears to be, yes.
PN763
THE SENIOR DEPUTY PRESIDENT: Very well.
PN764
MR BURKE: Well, if it is covered and Kew is also covered, if I take you to point 26:
PN765
We were advised by email by Ms Melissa Camera of MGAV that the SDA would not grant consent to Ferntree Gully and Heidelberg to become respondents to the 2005 agreement.
PN766
Obviously there's no mention there of Kew. Why didn't the company take up the offer of the 2005 agreement and - - -
PN767
MR FISCHBACHER: Well, that's not a question of relevance, your Honour.
PN768
THE SENIOR DEPUTY PRESIDENT: What is the question, Mr Burke?
PN769
MR BURKE: I'd just like to know the company's view as to the Kew store, what's covered by the previous agreement and it's mentioned there that the SDA wouldn't agree to Ferntree Gully or Heidelberg becoming a party to the new agreement, but there's no reference to Kew, so I just wanted to have the witness confirm that there was no objection to the company applying the new agreement to Kew?---I can't answer that, because I can't say for certain the position.
PN770
If I take you then to number 29, point 29:
PN771
As set out above, I oppose the application to terminate the agreements as I believe it is contrary to the public interest to terminate the agreements at this time. I seek an adjournment of not less than 12 weeks in order to provide a number of things to happen.
**** PINO PAOLUCCI XXN MR BURKE
PN772
The company's original application was for 12 weeks. Hasn't that been what's now happened, that the company is seeking this further adjournment that it will gain this 12 weeks' adjournment?---It's very hard to determine the process that needs to take place in talking with staff and going to and fro and it would be nice if I had a magic wand to say it's going to take such and such a time, but you just can't put a period to it, because it's not until you engage in the process that you actually see how long it takes, so it's very difficult. Initially, after 12 weeks, we thought that that would do the job, but unless you start, it's very difficult to know.
PN773
In fact, you were correct, it was 12 weeks and that's what you've sought, that's what you sought here and that's what you're seeking with - - -?---Well, no, initially that's what we sought, initially, but obviously after that time, the process is ongoing, so at that time, that was to the best of my knowledge.
PN774
And then you say in the middle of 30, you start with the sentence:
PN775
In the circumstances, in my view the short adjournment will cause no prejudice to be suffered.
PN776
That would have been the case because you would have been granted the 12 weeks, is that correct?---At that time of the year, for any change, it is very difficult and the amount of staff that are away and the period of Christmas that we were in, it's just very difficult to make any changes.
PN777
That's why you ask for the 12 weeks, is that correct?---We ask for the 12 weeks in order to continue our process.
PN778
And because of the problems you knew you would experience?---If you change anything without consulting staff, it causes great confusion.
PN779
Perhaps if I could provide a document to yourself first of all, your Honour, to have a look at it. I can't tell you the exhibit number at the moment, but it would be in the bundle of documents in relation to 7500 where we highlighted the disadvantage between the agreement and the award and if the witness has that document?---Yes.
PN780
Are you aware that the 2002 agreement pays an adult shop assistant after six months $512?---That's what you're saying there.
**** PINO PAOLUCCI XXN MR BURKE
PN781
You don't dispute that?---Without doing my own calculations - - -
PN782
I am happy to provide you with a copy of the agreement if you wish to look at it?
---No.
PN783
You don't dispute the casual rate is 25 per cent?---I think that's correct.
PN784
And you wouldn't dispute the hours of work that is outlined there, including there's a penalty rate of 50 per cent on Sunday?---Once again, I can't recall the documents.
PN785
Well, looking at the award, which is what we seek Q for example to be now covered by, are you aware that the adult rate would go to $543.40?---Something in that vicinity, yes.
PN786
And that the casual rate is a combined figure of 33-1/3 per cent?---I am not aware of that.
PN787
You don't dispute it, though, do you, or you're not aware?---I can't confirm or deny that.
PN788
In terms of the hours of work, are you aware that those are the hours of work and the relevant penalties in the award?---Once again, I can't - - -
PN789
You're not aware or you don't dispute it?---Well, I can't tell you positively without having the document in front of me.
PN790
Well, if we take it that those are hypothetically, in terms of the rates of pay, at least you believe that they - - -?---I can't answer a question on a hypothetical basis.
PN791
MR FISCHBACHER: May I ask the relevance, your Honour?
PN792
THE SENIOR DEPUTY PRESIDENT: I think the relevance is clear.
PN793
MR BURKE: I am happy to provide a copy of both the award and the agreement for the purpose of the question.
PN794
THE SENIOR DEPUTY PRESIDENT: What is the question you want to ask? Assuming that the document is correct, what is the question you want to ask?
**** PINO PAOLUCCI XXN MR BURKE
PN795
MR BURKE: Why should there be further disadvantage to employees in not receiving the rates of pay under the award?
PN796
MR FISCHBACHER: With respect, your Honour, I am sorry, again this document represents a summary, an interpretation of the relevant 02 and 05 agreement by the SDA. It does not represent the rates that are paid at the various supermarkets. These are minimums expressed on an 02 agreement. The evidence has not been led that these are the rates that are - - -
PN797
THE SENIOR DEPUTY PRESIDENT: Well, you can do that in re-examination, Mr Fischbacher.
PN798
MR BURKE: So if we take it those are the figures, do you accept that there's a difference of $31.40 between the award and the agreement?
PN799
THE SENIOR DEPUTY PRESIDENT: We can all do the maths, Mr Burke. Just assume for a moment that the document sets out the position under the agreement and under the award, ask a question, Mr Burke.
PN800
MR BURKE: Do you accept that - do you acknowledge that people are being disadvantaged between the agreement rate and the award rate currently?---I acknowledge based on the piece of paper in front of me there is a difference.
PN801
Why should that continue after today's date?---Well, we were giving staff the opportunity to decide what they want to do on 5 April, it is their call. If they want our document in they'll vote for it, if they don't they'll vote no. So they are the people that have the power to bring something in or reject it. They are voting on it.
PN802
I have no further questions.
PN803
THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Burke. Mr Fischbacher?
MR FISCHBACHER: Thank you, your Honour. A couple of questions if I may.
<RE-EXAMINATION BY MR FISCHBACHER [12.16PM]
PN805
MR FISCHBACHER: You still have your statutory declaration sworn this morning?---Yes.
**** PINO PAOLUCCI RXN MR FISCHBACHER
PN806
Great. Purely for the sake of the record, and I want to make sure it's well understood, the processes outlined in paragraph 4 of
your statutory declaration sworn this morning is the process that, or is it the process that was followed by the Le Max Group of
Supermarkets in terms of the consultation feedback process?
---That's correct.
PN807
Is it correct that the certified agreement re-draft, draft number 2 if I can call it that, that forms the exhibit PP2 to your statutory declaration, was that circulated to staff subsequent to the feedback sessions that were undertaken initially by the Le Max Group?---Yes.
PN808
Was it important in your eyes, Mr Paolucci, that as a result of the feedback sessions that the Le Max Group undertook, I believe in February, thereabouts, and the large number of questions that were generated and the substantial members that it meant for the second version, which is PP2, that you felt it important to have staff a further opportunity to understand those amendments as well as those staff who did not have an opportunity to attend the first of the meetings in March of this year?---Yes. I think paramount not - that staff also asking for a further clarification and the opportunity to sit with the company and discuss the matters.
PN809
Mr Paolucci, in paragraph 7(a) of your stat dec of this morning, the reference to the 428-odd questions, were those questions generated simply as a result of the feedback sessions or also in relation to the Q&A process that was undertaken prior to those meetings?---It's both.
PN810
Thank you. The reference to costs in paragraph 7(c) of your stat dec this morning, one can't dispute the fact that lawyers never cheat. I don't need an answer to that, it's more a statement. But in relation to the costs reference in that paragraph do you include with that, or is it a reference, does that include a reference to certain things like administrative costs that your various staff in implementing your carrying through of the process in addition to legal costs?---Mm.
PN811
And that given the number of staff that are involved a second re-vote or subsequent re-vote would be a very costly exercise for the
Le Max Group?
---That's correct.
PN812
My last question relates to the document that was just put to you by Mr Burke. As we can see it represents minimum rates under an expired agreement, in this case the '02 agreement. We have others of course. That was the date of this agreement, that is some 11 years old. Does Le Max Group continue to pay the minimums under those expired agreements, or has it provided periodically wage increases to the staff after the agreements notional expiry date passed?---It has provided increases.
**** PINO PAOLUCCI RXN MR FISCHBACHER
PN813
So is it correct to say that the Le Max Group in this example posed more than the minimum set out under the Master Grocers Agreement 2002?---That is correct, and the increases that have been put through have been done so on the information provided by the Master Grocers.
PN814
THE SENIOR DEPUTY PRESIDENT: Does it pay more than the rate provided for by the Master Grocers Award 2005?---2005?
PN815
Yes, that's the bottom rate?---No, not 2005.
PN816
It doesn't pay more than 543.40 to a shop assistant?---For ex Franklins stores it may be more than that, your Honour.
PN817
MR FISCHBACHER: So in the case of - well, you have five supermarkets that you manage, it's true, or is it true that in some of those supermarkets we in fact pay more than 543.40?---Yes.
PN818
THE SENIOR DEPUTY PRESIDENT: And in others?---And in others?
PN819
You pay less than 543.40 do you?---In all stores that are employees that are given more than 543. Some do, are getting less, that's correct.
PN820
Yes. And are casuals paid at 25 per cent premium or 33 and a third per cent premium?---As far as I'm aware it's at 25.
PN821
Yes. So it follows from that, that there are some employees, at least some employees who would be earning less than they would if the award were to apply to them?---Possibly.
PN822
Yes, thank you.
PN823
MR FISCHBACHER: I have no further questions.
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Yes, you may be excused, Mr Paolucci?---Thank you, your Honour.
<THE WITNESS WITHDREW [12.21PM]
PN825
THE SENIOR DEPUTY PRESIDENT: Mr Burke, while I remember, can you tell me whether it is the fact, as is adverted to in paragraph 36 of the statutory declaration that was made in December, that the union would not consent to Ferntree Gully and Heidelberg becoming respondents to the 2005 Master Grocers Award?
PN826
MR BURKE: At that time, yes. Subsequently, as I've said on the record, we were asked to include Heidelberg, and have always been prepared to include Kew, but subsequently have agreed to include Heidelberg.
PN827
THE SENIOR DEPUTY PRESIDENT: And Ferntree Gully.
PN828
MR BURKE: Not Ferntree Gully, no, your Honour.
PN829
THE SENIOR DEPUTY PRESIDENT: Why not? You're now complaining that people are disadvantaged by not being subject to that agreement, but you wouldn't allow them to become subject to it.
PN830
MR BURKE: Your Honour, the difference with Ferntree Gully is that its base award is the Federal Shops Award, which is a different award to the Master Grocers Award. For example the Shops Award has a 17 and a half per cent annual leave loading, higher penalty rates on Saturdays and on Sundays, and that's why agreements like the Franklins agreement and the ex Davids agreement are higher wages again. The Master Grocers Award in the past, a consent award, had no penalty rates on Saturdays and no 17 and a half per cent annual leave loading.
PN831
When it has been converted into a simplified award those things have now been put back into the award, or will be put back into the award. So whilst - - -
PN832
THE SENIOR DEPUTY PRESIDENT: They're not in there now?
PN833
MR BURKE: No.
PN834
THE SENIOR DEPUTY PRESIDENT: So the comparison that you're making in the document you were putting to the witness is with an award that has not been made?
PN835
MR BURKE: Yes, the award has certainly been made, your Honour.
PN836
THE SENIOR DEPUTY PRESIDENT: Yes, but not containing those provisions.
PN837
MR BURKE: It does contain those provisions.
PN838
THE SENIOR DEPUTY PRESIDENT: Sorry, well, I'm confused.
PN839
MR BURKE: Yes, I will confuse you, your Honour.
PN840
THE SENIOR DEPUTY PRESIDENT: No. Well, try not to confuse me.
PN841
MR BURKE: I'm happy to provide a copy of the award, I have one with me. The award, the Master Grocers Award - - -
PN842
THE SENIOR DEPUTY PRESIDENT: 2005.
PN843
MR BURKE: 2005, was simplified last year. Prior to that it was a consent award, therefore it was, if you like, an enterprise agreement award. As part of that consent award it did not contain the 17 and a half per cent annual leave loading or the penalty rates. When the award was simplified by Commissioner Raffaelli last year those points were put back in. The 17 and a half per cent leave loading will apply from April of this year and penalties will apply from next year as well.
PN844
THE SENIOR DEPUTY PRESIDENT: And the casual rate will be 33 and a half per cent?
PN845
MR BURKE: Yes, it will be.
PN846
THE SENIOR DEPUTY PRESIDENT: And is it currently 33 and a half per cent in the award?
PN847
MR BURKE: Yes, your Honour.
PN848
THE SENIOR DEPUTY PRESIDENT: Before it's varied it's 33 and a half per cent?
PN849
MR BURKE: Before it's varied?
PN850
THE SENIOR DEPUTY PRESIDENT: You say that it hasn't been varied yet?
PN851
MR BURKE: It has been. The award - - -
PN852
THE SENIOR DEPUTY PRESIDENT: And what's happening in April? Nothing possibly if the legislation is - - -
PN853
MR BURKE: The award will have the 17 and a half per cent annual leave loading apply again.
PN854
THE SENIOR DEPUTY PRESIDENT: Why in April? That's a term of the award as made.
PN855
MR BURKE: Yes, your Honour.
PN856
THE SENIOR DEPUTY PRESIDENT: I see. So the award is in operation but the 17 and a half per cent annual leave loading is prospective to April?
PN857
MR BURKE: Yes, your Honour.
PN858
THE SENIOR DEPUTY PRESIDENT: I see. And what about the casual rate of 33 and a half per cent?
PN859
MR BURKE: No. That was at the time the award was made.
PN860
THE SENIOR DEPUTY PRESIDENT: So that operates now?
PN861
MR BURKE: Yes, your Honour.
PN862
THE SENIOR DEPUTY PRESIDENT: Yes, thank you.
PN863
MR BURKE: So that's why there's a difference. We came back and said with Heidelberg that had no agreement covering in our view. We were asked by the Master Grocers Association at the time that common rule awards were being made to have the Heidelberg store put into the Master Grocers 2005 Award. We consented at the time on the basis that, as we did with other employers, those people become a party to the 2005 enterprise agreement.
PN864
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN865
MR BURKE: Now, that was after April of last year, 2005.
PN866
THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Burke. Yes? Now, you want to cross-examine Mr Blake, do you?
PN867
MR BURKE: Yes, your Honour.
THE SENIOR DEPUTY PRESIDENT: Yes, call Mr Blake please.
<BRENDAN EDWARD BLAKE, SWORN [12.26PM]
<EXAMINATION-IN-CHIEF BY MR FISCHBACHER
PN869
MR FISCHBACHER: Mr Blake, could you for the record state your full name and address?---Brendan Edward Blake (address supplied).
PN870
Mr Blake, you have in front of you a copy of a statutory declaration sworn by you in fact before myself on Friday, 17 March, is that right?---Yes.
PN871
I tender that.
PN872
THE SENIOR DEPUTY PRESIDENT: I take it the contents of it are true and correct?---Yes.
PN873
That will be exhibit F3, in which agreement matter numbers?
PN874
MR FISCHBACHER: The four that we - - -
PN875
THE SENIOR DEPUTY PRESIDENT: The same four?
PN876
MR FISCHBACHER: Yes.
THE SENIOR DEPUTY PRESIDENT: As for F1 and F2. Thank you.
EXHIBIT #F3 STATUTORY DECLARATION OF BRENDAN BLAKE
PN878
THE SENIOR DEPUTY PRESIDENT: Mr Burke?
MR BURKE: Thank you, your Honour.
<CROSS-EXAMINATION BY MR BURKE [12.27PM]
PN880
MR BURKE: Mr Blake, were you present in the Commission for the last hearing on 23 January?---Yes, I was.
PN881
Were you aware then of the directions that were made following discussion between the parties as to the matter coming back on today's date?---Yes.
PN882
Are you therefore aware that on today's date the company or companies were to inform the Commission that a vote had taken place?
PN883
MR FISCHBACHER: Again an objection, your Honour. That wasn't the direction made.
**** BRENDAN EDWARD BLAKE XXN MR BURKE
PN884
THE SENIOR DEPUTY PRESIDENT: That's right. Mr Burke, we've been through this. It wasn't the direction I made. The company through the affidavits that were received but not tendered, and the submissions of Mr Fischbacher indicated that they were taking a certain course, indicated he intended to take a certain course with a certain program. It was anticipated that by now a vote would have been taken. It hasn't been taken. Now ask your questions.
PN885
MR BURKE: Why didn't the company finalise the document to be put to a vote by 20 March?---The document was finalised before 20 March. The second series of feedback sessions enabled staff members to take on board the modifications which had been made to the document pursuant to their interests at the first feedback session, and that by the 17th, in fact earlier than 17 March the document was final and a date was set for the vote. So the document has been finalised.
PN886
So why wasn't it finalised to a vote could take place by the 20th?---It was finalised after the second round of feedback sessions which took place on the Tuesday, Wednesday and Thursday of last week, at which stage the document was considered final. It would not have been considered final had there been further matters that the staff members wanted to take into consideration or further amendments that they requested. We made it clear from the outset, in fact from the time the union first put through their request to terminate our current agreements, or our existing agreements, we made it clear that the process that we were to undertake with our staff members would be open and consultative and would take into consideration their requirements, their needs, their input so that the agreement was not seen as being one sided. In fact the staff members indicated too that they'd never been involved in a consultative process where their opinions or their ideas had never been put into a document whereby they had, as did all contracts, some degree of input. So the consultative process was considered to be unusually acceptable to the employees who are bound by the contract.
PN887
You have in front of you, do you, BB1?---Yes.
PN888
BB1 is a series of documents?---I have the - - -
PN889
THE SENIOR DEPUTY PRESIDENT: Yes, you're just being handed the attachments. You're taking the witness to BB1?
PN890
MR BURKE: No, I'll start with BB2, your Honour, just so that the witness has the documents. Firstly the memo.
**** BRENDAN EDWARD BLAKE XXN MR BURKE
PN891
THE SENIOR DEPUTY PRESIDENT: Just let me find that. Yes, I have that.
PN892
MR BURKE: Do you have that Mr Blake?---Yes.
PN893
Following that there is a document which, as I understand it, was the amended document based upon the memo on the first page on BB1, correct?---Yes, that's correct.
PN894
And there aren't that many changes there, is that correct?---The document, the agreement that's attached to the memo is what's called the marked up version. In other words that's the version that includes the modifications which were made to the document following the first feedback session.
PN895
Yes. And then if I take you to BB3?---Yes.
PN896
That document is the final document to be voted on, is that correct?---It appears to be, yes.
PN897
And in all respects BB2 and BB3 are the same document aren't they?---BB2 is a marked up version which was put to the staff of the second round of feedback sessions for further input.
PN898
Right. So we take those markings out, those marked up indications out?---Yes.
PN899
BB2 and BB3 are the same document aren't they?---That is correct, without the mark up, yes.
PN900
If that is the case then, that's been the outcome of all of your meetings, why did you need to have a further adjournment to put the document that had already been put to employees?---The second marked up version was a document for discussion at the second round of feedback meetings following the modification of the original version. The staff members had a further opportunity to further criticise, to further remark up, to further change the second version. The second round of feedback meetings did not require any further amendment so that document was considered final, and then it was provided to staff literally the day after the final second round of feedback sessions last week.
PN901
And there's therefore no change between those two documents. Why didn't the company go with that first document?---Because the document was - - -
**** BRENDAN EDWARD BLAKE XXN MR BURKE
PN902
MR FISCHBACHER: Sorry, objection. Your Honour, the question has been answered.
PN903
THE SENIOR DEPUTY PRESIDENT: No, it hasn't.
PN904
MR FISCHBACHER: Well, with respect, your Honour - - -
PN905
THE SENIOR DEPUTY PRESIDENT: I overrule that objection. Yes, Mr Blake?---The document marked BB3 is the BB2 document unchanged. The BB2 document was able, through the second round of feedback sessions, to be changed through input. The input did not require any amendments. The staff were very happy with the BB2 document. So the next day the mark ups were removed and that document is, of course, the same document as BB2 that then goes to vote.
PN906
MR BURKE: So you acknowledge it's exactly the same document?
PN907
THE SENIOR DEPUTY PRESIDENT: Well, he's done that, Mr Burke, several times?---It's the same document. It was only provided as a means of further discussion, and there was no required amendments so we went with it, it's as simple as that.
PN908
MR BURKE: But because of that, because there was in fact no change the company still seeks an adjournment of this matter.
PN909
THE SENIOR DEPUTY PRESIDENT: Mr Burke, he has answered that question.
PN910
MR BURKE: I don't think he has answered a question about why - - -
PN911
THE SENIOR DEPUTY PRESIDENT: Well, we know the company seeks an adjournment. He didn't say it's because there were no changes.
PN912
MR BURKE: In terms of your statutory declaration number 4, point number 4 on page 2, 4(d), the very last sentence there:
PN913
The SDA was given the opportunity to attend at these meetings and did so.
PN914
?---Yes.
**** BRENDAN EDWARD BLAKE XXN MR BURKE
PN915
You conducted the meetings in the three stores yourself, did you?---Yes, I conducted them personally.
PN916
Yes. And how many meetings did the - how many stores did the SDA attend?
---They attended one store, which was two feedback sessions of the four that we held, so they attended 50 per cent of feedback sessions.
PN917
In one store?---In one store, that's right. No, they attended 100 per cent in one store but 50 per cent across all the stores. There were four meetings, the SDA attended two out of the four. They were invited to the other two but did not attend.
PN918
Well, when do you say the SDA was invited?---My solicitors invited the SDA, told them they were - which is why they attended the Castlemaine meetings, because they - - -
PN919
No. I'd like you to tell me then when Mr Fischbacher, do you that Mr Fischbacher invited the SDA?---The SDA have been aware through this entire process they are able to meet with staff. In fact it is a part of the existing agreement that the SDA has the right to see members of - and correct me if I'm wrong, but that document is yet to be terminated so it's still in effect, you do have the right to talk to staff members at our premises.
PN920
Yes, we do. However I would just put to you that we were not in fact invited to those meetings. You're not aware of that?---No. I was under the impression that you were invited to those meetings.
PN921
Well, I put it to you that the reason that we did attend those meetings is that we rang and asked to attend, we were not invited. Are you aware of that?---No. No, I was not requested to say you could or could not go. I was aware that - in fact I mentioned it at the first two meetings at both Horsham and Ballarat that the union had been invited, where is your representative at these meetings?
PN922
I'd have to put it to you, Mr Blake, that no such invitation was made. We would have taken it up?---I don't believe that's the case. I believe that you were invited to every one of the meetings, and that's why - - -
PN923
I would like you to point to where we were invited, because no such - we would have attended?---Well, you did attend.
**** BRENDAN EDWARD BLAKE XXN MR BURKE
PN924
I would put it to you that these meetings were held as Q&A meetings by the company to explain their document, not for us to attend,
for example, to ask the views of employees about the termination of the agreement. Is that correct?
---That is correct. But I'm also under the impression that the union was invited, and that's why the union attended.
PN925
Well, I put it to you that we were not.
PN926
THE SENIOR DEPUTY PRESIDENT: Well, Mr Burke, we're going around in ever increasing circles here.
PN927
MR BURKE: Well, your Honour, I think that - - -
PN928
THE SENIOR DEPUTY PRESIDENT: How many times are you going to ask the same question?
PN929
MR BURKE: Well, your Honour, it goes to the fact that - - -
PN930
THE SENIOR DEPUTY PRESIDENT: Well, I know what you say and I know what Mr Blake says.
PN931
MR BURKE: Yes, your Honour.
PN932
In terms of the SDA attending those meetings do you say that at those meetings the SDA could have ascertained the views of employees
about terminating the agreements?---That's a good question. I don't know the answer to that. The
union - - -
PN933
THE SENIOR DEPUTY PRESIDENT: Well, if you don't know, you don't know. That's the answer to the question. Don't speculate.
PN934
MR BURKE: In hindsight would you have had any objection to us being at those meetings and asking questions?
PN935
MR FISCHBACHER: Relevance?
PN936
THE SENIOR DEPUTY PRESIDENT: Yes. The objection is on the basis of relevance and I uphold it.
**** BRENDAN EDWARD BLAKE XXN MR BURKE
PN937
MR BURKE: At those meetings was there any discussion - well, if I can ask you to look at PP1?---BB or PP?
PN938
Sorry, sir, too many Ps.
PN939
THE SENIOR DEPUTY PRESIDENT: BB1, is it?
PN940
MR BURKE: BB1, yes, sorry, your Honour. BB1?---Yes.
PN941
On that memo in the middle of the page it starts off:
PN942
We do suggest however that all staff carefully read the Q&A document.
PN943
But if I take you to the second sentence:
PN944
We stress that unless the agreement is accepted by staff in the voting process to be held shortly all staff's terms and conditions will only be underpinned by the award, conditions that will be further stripped back under the new Work Choices laws.
PN945
Was there any discussion in your meetings about that point, the fact that the awards would be stripped back?---There was an indication made that the government had proposed changes and that nobody was certain as to what those changes would be.
PN946
All right. So why would you make the statement that conditions would be further stripped back under the new Work Choices laws?---Because in the event that the staff members had the choice of either voting for an agreement of which the terms and conditions were clear, or an award in which the terms and conditions were unclear, the staff needed to have the information provided to them on both sides. Now, we've provided the information on the part of the Work Choices - sorry, the workplace agreement, that we've said we guarantee. I have said to staff members if the award is chosen over the agreement we cannot guarantee its provisions, we don't know what is going to be in the award.
PN947
You've made the statement that conditions will be further stripped back. What conditions did you tell people would be stripped back?---I mentioned the five minimum conditions that the government has proposed in the media.
**** BRENDAN EDWARD BLAKE XXN MR BURKE
PN948
And those being?---In fact I couldn't recall them all at the time. I asked the union member who was there to help me, and she couldn't me either. But I know that they were minimum rate of pay, four weeks annual leave, paternal or maternal leave, sick leave, which was of course increased, and the fifth one I don't recall, I didn't recall at the time either.
PN949
So you did all that to inform employees of the difference between going under an agreement or not?---What I did was, I said to employees in the absence of any other agreement or proposal the union is seeking to terminate the agreement that you have, in the absence of any agreement we are proposing this agreement, without which the award is the underpinning document, that's what I explained to them.
PN950
And there were only five minimums guaranteed, is that what you also said?
---That's what I'm led to believe.
PN951
Right. And therefore by implication then the rest could be stripped back, was that the implication you were making to employees?---No, not at all. I made no implications. I was very firm with everything that I said.
PN952
Well, why would you tell people that it's going to be stripped back in your memo? Why would you put out such a memo?---For example things like - and this is common sense - things like loadings would be stripped back between what's in the award now, I presume anyway, what's under the Work Choices. But I'm only taking the information what I know through media channels, as do my employees. I don't know anything more than that.
PN953
So if in fact annual leave loading did remain or penalties remained, or tea breaks remained, when will you tell employees that before they vote? Because the legislation will be in effect from next Monday won't it?
PN954
MR FISCHBACHER: Sorry, can I just object for a moment, your Honour?
PN955
THE SENIOR DEPUTY PRESIDENT: Yes.
PN956
MR FISCHBACHER: I don't understand the question, I'm sorry.
PN957
THE SENIOR DEPUTY PRESIDENT: I'm not sure that I did either. Perhaps you might try it again, Mr Burke.
**** BRENDAN EDWARD BLAKE XXN MR BURKE
PN958
MR BURKE: You're aware are you that the new legislation will take effect from next Monday?---I read something this morning in the paper, I didn't actually see a date, I just read - - -
PN959
I put it to you that the government has announced the legislation will take effect from next Monday?---Right.
PN960
Your vote will take place on 5 or 6 April?---Yes.
PN961
Therefore the new legislation will be in place. Won't you be in a clearer position to explain to people what will or won't be stripped back under the new Work Choices?---No. I don't intend to get involved in - - -
PN962
MR FISCHBACHER: Your Honour, again I object. I don't understand the question or its relevance.
PN963
THE SENIOR DEPUTY PRESIDENT: What is its relevance?
PN964
MR BURKE: Well, your Honour, the company has made reference to the new Work Choices laws in its memo to staff.
PN965
THE SENIOR DEPUTY PRESIDENT: Yes. Well, what is the relevance of whether Mr Blake will be in a better position to explain the effects of it?
PN966
MR BURKE: We say that he's put in the minds of people that the awards should not be terminated because they will be further stripped
back. And now that
he - - -?---The agreement or the awards?
PN967
The award.
PN968
MR FISCHBACHER: No, that's not the evidence of Mr Blake.
PN969
MR BURKE: Yes, it is in terms of the agreements.
PN970
THE SENIOR DEPUTY PRESIDENT: The agreements should not be terminated because - - -
PN971
MR BURKE: Sorry, in terms of the agreements being terminated, the suggestion is that if people go under the award their conditions will be further stripped back. Now, the company can, before the vote, advise employees of whether that statement is correct or not.
**** BRENDAN EDWARD BLAKE XXN MR BURKE
PN972
THE SENIOR DEPUTY PRESIDENT: Well, so what? What's the relevance of that to this proceeding? I don't allow the question. Ask the next question please. Mr Burke, you're in a hurry to get this matter dealt with, and I have to make some rulings on the evidence to enable you to do so.
PN973
MR BURKE: Most of the questions I've asked of the previous witness have been the same. Is it worthwhile - - -
PN974
THE SENIOR DEPUTY PRESIDENT: Well, that's a matter for you, Mr Burke.
PN975
MR BURKE: In terms of point 7 of your statutory declaration - sorry, I'll go back to 6?---Yes.
PN976
I accept that it was intended to have a vote conducted by 20 March 2006?---Yes.
PN977
So you were aware there were directions for a vote to be conducted by today's date?
PN978
MR FISCHBACHER: Well, your Honour, do I need to object to that question once again? It's been put to the witness that directions were made that a vote be conducted by 20 March.
PN979
THE SENIOR DEPUTY PRESIDENT: Yes. There were no such directions, Mr Burke, were there? If Mr Fischbacher is wrong and I'm wrong, please direct me to the direction that was made.
PN980
MR BURKE: Your Honour, we discussed it in conference off the record, and it was clear obviously to Mr Blake when he was here that the company would have a vote on the 15th.
PN981
THE SENIOR DEPUTY PRESIDENT: That's a very different question. Did I or did I not issue a direction that there would be a vote by the 15th? I may have. I can't recall it, but if I did please show me where I did it.
PN982
MR BURKE: Your Honour, we went off the record and discussed that timetable, and it was clear, as Mr Blake has put here, "I accept that it was intended to have a vote conducted by 20 March." So it may have been - - -
PN983
THE SENIOR DEPUTY PRESIDENT: Yes, it was clear, yes.
**** BRENDAN EDWARD BLAKE XXN MR BURKE
PN984
MR BURKE: Yes. So I'm just trying to put that the company was aware of that and has not followed that.
PN985
THE SENIOR DEPUTY PRESIDENT: The company was obviously aware of it, it has not followed it. Your question is why? And don't preface it with saying that there was a direction from the Commission.
PN986
MR BURKE: Well, your Honour, if you may remember we did go off the record and discuss it.
PN987
THE SENIOR DEPUTY PRESIDENT: Yes, but I don't recall making a direction. But if I did, please correct me. If I'm wrong please correct me.
PN988
MR BURKE: Well, your Honour, I'm pointing out as to what was - - -
PN989
THE SENIOR DEPUTY PRESIDENT: There was an agreed timetable, or a timetable that I accepted should be followed. I don't recall having made a direction, but my memory may be faulty.
PN990
MR BURKE: I suppose, your Honour, I'm at PN 502, you said that an agreement's not been certified by now, if you had an indication of views of the employees it may be well likely to terminate the agreement because a considerable period of time has elapsed.
PN991
THE SENIOR DEPUTY PRESIDENT: Yes. Well, that's far from a direction. That's an indication of my thinking at that time.
PN992
MR BURKE: Well, I think - - -
PN993
THE SENIOR DEPUTY PRESIDENT: Well, I don't think you can do any better with Mr Blake than to get him to accept, as he does, that there was a program that he intended to follow, and he hasn't followed it.
PN994
MR BURKE: That's correct.
PN995
THE SENIOR DEPUTY PRESIDENT: Now you want to ask him why.
PN996
MR BURKE: Yes. Well, I would ask again why you have not followed it?---As previously indicated, the feedback sessions were well attended and they were well supported with questions and with suggestions and with comments. It would have been - I'm trying to think of the word. It would have been rash of us to move forward and propose an agreement that the staff were still unhappy with. So we made modifications to suit their requirements, and once made we invited them again to look at the new document, to ask further questions. In fact not only have we had the meetings but I've also made myself available to staff at all stores to contact me personally if there's any issues they have with the agreement. And some members who were unable to attend the meetings have done so. And that's been a process that I am very comfortable with, because I'm not proposing a document that staff are not in agreement with. It's been a comfortable process. In fact it's been a reassuring process for both myself and for my staff members, in that we can sit down and negotiate and communicate.
**** BRENDAN EDWARD BLAKE XXN MR BURKE
PN997
It's also been a costly exercise, as you say in your document, and that's another reason why you've sought the adjournment?---I don't think the costs are any greater than what they would be had we - - -
PN998
I'll take you to 7(c):
PN999
We need more feedback generally to gain a greater assurance that staff were unhappy with the proposed agreement before proceeding to vote given the costs involved in the voting process.
PN1000
Obviously you are concerned about the costs, are you not?---Not particularly.
PN1001
Can I ask you why you've included that in your statutory declaration?---I think
the - - -
PN1002
Do you wish to withdraw it from your statutory declaration?---No. I probably mentioned that at the time. I suppose I'm always conscious of business costs, not only the costs of legal fees but also the costs of the time involved from the staff members at head office that continually produce the documents, produce the feedback letters.
PN1003
But that's in the paid time of their employ isn't it?---That's in their paid labour time, but not the cost of the paper, the cost of toner. In fact I went to get a new toner for a photocopier, it was extraordinarily expensive, but that's beside the point.
PN1004
They certainly are, that's right?---There are costs involved.
PN1005
And all those have added up. But you say that that's a reason why you should have an adjournment though, is that right?---I think that the basis of the adjournment has been made very clear, so that the staff are comfortable with the agreement and we are comfortable.
PN1006
Yes, okay. If I could take you to - the witness has his previous statutory declarations.
PN1007
THE SENIOR DEPUTY PRESIDENT: What's the date of that?
PN1008
MR BURKE: 22 December.
**** BRENDAN EDWARD BLAKE XXN MR BURKE
PN1009
MR FISCHBACHER: If you like, your Honour?
PN1010
THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Fischbacher.
PN1011
MR FISCHBACHER: Mr Blake, I'll just give you a chance to have a quick squiz at that.
PN1012
THE SENIOR DEPUTY PRESIDENT: Do you have the original, Mr Fischbacher?
PN1013
MR FISCHBACHER: The original was filed I believe, your Honour.
PN1014
THE SENIOR DEPUTY PRESIDENT: I have a photocopy.
PN1015
MR FISCHBACHER: Do you have a copy, your Honour?
PN1016
THE SENIOR DEPUTY PRESIDENT: I have a photocopy, which will suffice.
PN1017
MR FISCHBACHER: You have a photocopy. If I may make investigations as to where the original lies. I was of the impression it had been handed up, but we can certainly delve further over the luncheon break.
PN1018
THE SENIOR DEPUTY PRESIDENT: I doubt that it will matter in this case. I don't think anybody is suggesting that we're not all looking at the same document.
MR FISCHBACHER: Let's hope not, your Honour.
<FURTHER EXAMINATION BY MR FISCHBACHER [12.51PM]
PN1020
MR FISCHBACHER: Mr Blake, you've had a chance to have a quick look at it?
---Briefly.
PN1021
The address and name is correct as provided on the statutory declaration?---Yes.
PN1022
Are the contents of the statutory declaration true and correct in every particular?
---Yes.
PN1023
Thank you, Mr Blake.
PN1024
THE SENIOR DEPUTY PRESIDENT: And there are a number of attachments to those?
**** BRENDAN EDWARD BLAKE FXN MR FISCHBACHER
PN1025
MR FISCHBACHER: There are a number of attachments, your Honour.
PN1026
THE SENIOR DEPUTY PRESIDENT: You're tendering that statutory declaration with its attachments?
MR FISCHBACHER: I tender that, your Honour.
EXHIBIT #F4 STATUTORY DECLARATION OF BRENDAN BLAKE DATED 22/12/2005
PN1028
MR FISCHBACHER: Your Honour, I'm not aware of attachments. I've just read through the stat dec, and there are no reference to attachments, your Honour.
PN1029
THE SENIOR DEPUTY PRESIDENT: Yes, I was having that same problem, but there seemed to be a whole lot of documents clipped together with it. So they should not have been clipped together with it?
PN1030
MR FISCHBACHER: No, your Honour.
PN1031
THE SENIOR DEPUTY PRESIDENT: It may have been an administrative error that occurred in my office.
PN1032
MR FISCHBACHER: Thank you.
PN1033
THE SENIOR DEPUTY PRESIDENT: Very well. The statutory declaration is the exhibit.
PN1034
MR FISCHBACHER: Thank you.
PN1035
MR BURKE: Yes, there are no attachments that I'm aware of either, your Honour.
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Burke?
<CROSS-EXAMINATION BY MR BURKE [12.54PM]
PN1037
MR BURKE: In that matter that you highlight, if I take you to 17, point number 17?---Yes.
PN1038
You've read the previous declaration of Mr Paolucci and confirmed the same, and sought a period of not less than 12 weeks as an adjournment. Is that in fact not what will occur by the Commission granting your application today?---I'm sorry, can you say that again? I don't understand.
**** BRENDAN EDWARD BLAKE XXN MR BURKE
PN1039
In number 17 you ask there for an adjournment of 12 weeks?---Yes.
PN1040
Do you remember you were in the Commission I think in that matter back
in - - -?---22 December, yes.
PN1041
December, yes, that's right. Now, in terms of that, if your adjournment is granted today do you not in fact get the adjournment you first sought back in December, 12 weeks?
PN1042
MR FISCHBACHER: I don't understand the relevance of that question, your Honour.
PN1043
THE SENIOR DEPUTY PRESIDENT: It's a matter of maths, Mr Burke. Yes, he does get his 12 weeks. Does something follow from that, or do you want to make a submission about that?
PN1044
MR BURKE: Well, we would in submissions.
PN1045
THE SENIOR DEPUTY PRESIDENT: Yes, very well.
PN1046
MR BURKE: Yes, your Honour. We just want to confirm that that was what the company was originally seeking, and is now again if they receive their adjournment.
PN1047
If I could take you back to number 9?---Yes.
PN1048
In the second one:
PN1049
It has always been my intention that once the Le Max Group of Supermarkets completed finals drafts that the Brendan Blake Group of Supermarkets would also implement the same or similar agreement.
PN1050
?---Yes.
PN1051
Why would that be important?---I'll tell you why. Because at the time that the SDA proposed to terminate all of our existing agreements there was no alternative for my staff members to have any security or surety of their employment. In the absence of a proposal from the SDA, which I honestly have not seen since well before 1994, we decided to take it on ourselves to produce an agreement for our staff members. Now, for the union to say we're going to terminate your agreement and you've got nothing apart from the award to fall back on, was not enough security for either myself or my staff members to be comfortable with their employment, because they had no agreement with me. So in the absence of any other agreement, once you sought to terminate we sought to produce a new agreement.
**** BRENDAN EDWARD BLAKE XXN MR BURKE
PN1052
THE SENIOR DEPUTY PRESIDENT: Mr Blake, what is the relationship if any between the Maxifoods Group of Supermarkets and the Le Max Group of Supermarkets?---From a business point of view there is no connection. From a commercial or from a company structure point of view there is no - - -
PN1053
No common shareholding?---No, there's not. However - - -
PN1054
No common directors?---No common directors. Leo Blake is my father, that's the extent of it. And I worked there for many, many years, and then I went out and bought my own stores, and we run totally separate businesses. Although we do a lot of things together, but the ownership, the directorships are totally independent of each other.
PN1055
Yes, thank you.
PN1056
MR FISCHBACHER: For the record, Commissioner, Leo Blake is essentially the owner of the Le Max Group of Supermarkets.
PN1057
THE SENIOR DEPUTY PRESIDENT: Yes, thank you.
PN1058
MR BURKE: Mr Blake, did you say that you'd had no information about any proposed agreement since 1994?---No, we had not been proposed by the SDA any alternative agreements since 1994.
PN1059
Okay. So when you say in 13 and in 14 that you received information provided by the MGAV and you carefully considered the proposed MGAV agreement, why do you say you didn't have any information since 1994?---From the SDA. The SDA have not sought to enter into a new agreement with any of my or my father's companies since 1994.
PN1060
Well, I know you can't speak on behalf of your father, but I would point out to you, and you may wish to dispute this, but the Kew store is in fact covered by an agreement since 2002?---I personally - and I used to run the Ferntree Gully store since 1994, and that agreement is still in place.
PN1061
That's right?---Is an indication and, in fact, the fact that there's been no approach by the unions to replace that agreement since 1994, and that's continued on through - - -
**** BRENDAN EDWARD BLAKE XXN MR BURKE
PN1062
Right. Do you deny that the Kew store is covered by an existing agreement?---I can't speak on behalf of the Kew store, I do not know the answer to that question.
PN1063
Okay. So you did in fact have information that the SDA was seeking to negotiate new agreements with the Master Grocers Association because you received that information from them, is that correct?---No. No, we didn't. We're not members of the Master Grocers Association.
PN1064
Well, you certainly sought information from them. Wasn't it made aware to you that the SDA was discussing an agreement with Master Grocers' members in 14, number 14?
PN1065
THE SENIOR DEPUTY PRESIDENT: On 22 December in the stat dec?
PN1066
MR BURKE: Yes:
PN1067
After reviewing the information provided by the MGAV and carefully considering the proposed MGAV agreement I did not believe the proposed agreement met the business needs of the Brendan Blake Group of Companies.
PN1068
?---Right, exactly. Now, it may be at the time of that proposal we were members of the MGAV, however, as I've indicated, I'm not saying that the MGAV hasn't proposed alternative agreements. I'm saying that the SDA has not. Now, if we rejected a proposal by the MGAV on the basis that we didn't think it was appropriate for our business, then surely the SDA had the opportunity to come forward and propose an alternative agreement, which they did not, which is we why we took our own steps forward to ensure that our staff members are secure.
PN1069
Well, that's in fact a little different to what you said before, that you've had nothing from the SDA since 1994, is that correct?---No. That is still correct. The MGAV might have proposed agreements to us, but not the SDA.
PN1070
So in the past whilst you've been a member of the MGAV you have participated in agreements that have been made or negotiated between the MGAV and the SDA, is that not correct?---That is significantly correct. We have not played a part in the negotiation. In fact that may be the subject of another topic which may not be appropriate for today.
PN1071
No. Well, I just wanted to clarify that?---But the answer is no, we have not been involved in any negotiations with the SDA or the MGAV.
**** BRENDAN EDWARD BLAKE XXN MR BURKE
PN1072
Really I just want to clarify the point that you have in fact had some involvement in agreements possibly being negotiated in the past?
PN1073
MR FISCHBACHER: Objection, your Honour. I think the question has been asked. That's the third time.
PN1074
THE SENIOR DEPUTY PRESIDENT: You're drawing a conclusion Mr Burke. Yes?
PN1075
MR BURKE: Yes. I have nothing more on that subject matter. I would like to provide a document. Perhaps if you see the document first, your Honour. It's similar to the document I had Mr Paolucci look at earlier. It's a comparison between the Independent Supermarket Agreement 2002 and the Victorian Shops Interim Award, which is the underpinning award. I've made a slight change. The amount should be $502.25.
PN1076
Looking at that document, Mr Blake, are you aware that the agreement rate under the agreement at Carrum Downs - sorry, at Castlemaine, would be $502.25, the agreement rate?---That may be an old rate. We increased the rate substantially several years ago, so that's not the rate that we're on today.
PN1077
Well, I'll take you to the award then which is underneath, $543.40. Would you pay all of your full time shop assistants $543.40?---No. But there are a lot that we pay more than that.
PN1078
THE SENIOR DEPUTY PRESIDENT: And some you pay less than that?
PN1079
MR BURKE: And some are paid less?---That's right, yes.
PN1080
THE SENIOR DEPUTY PRESIDENT: And what rate do you increase the wages for, for casuals?---The casuals are loaded by 25 per cent.
PN1081
Yes, thank you.
PN1082
MR BURKE: So you're paying them 25 per cent, the casuals?---25 per cent loading.
PN1083
Yes, right. Okay. So there are some people paid less than the 543.40?---Yes.
**** BRENDAN EDWARD BLAKE XXN MR BURKE
PN1084
These are shop assistants?---Yes.
PN1085
Not people in any managerial role or supervisory role, who may receive more for whatever reason?---Up until December the staff members were paid above award rates.
PN1086
And what happened in December?---The award rates changed.
PN1087
Which award?---The Interim Shops Award 2000.
PN1088
What did it go to?---Well, if I'm to assume this figure is correct it went to - well, in fact it went to 531 I believe.
PN1089
Perhaps I won't take the matter any further, your Honour, because we have too many awards and too many agreements. But I think the point's been made that some people are paid more and some are paid less.
PN1090
THE SENIOR DEPUTY PRESIDENT: Yes. Do you have any further questions for Mr Blake?
PN1091
MR BURKE: No, your Honour.
PN1092
THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Blake.
MR FISCHBACHER: I have just a number of small questions.
<RE-EXAMINATION BY MR FISCHBACHER [1.01PM]
PN1094
MR FISCHBACHER: Mr Blake, just on that last point if I may. The proposed agreement that is now before staff, and we are currently proposing the vote for 6 April, does it provide minimum rates of pay in excess of the award rate of 543.40?---Yes, it does.
PN1095
And to your knowledge is that the case in relation to - I'm sorry, the question should have been put to Mr Paolucci earlier, and I haven't. Am I able to do that?
PN1096
THE SENIOR DEPUTY PRESIDENT: Well, if Mr Blake knows.
PN1097
MR FISCHBACHER: Well, Mr Blake, are you aware that the rates that are proposed under your father's agreements in the Le Max Group,
that it also proposes minimum rates that are in excess of the Shops Award rate of
543.40?---Yes.
**** BRENDAN EDWARD BLAKE RXN MR FISCHBACHER
PN1098
Thank you. Two final questions. In relation to costs, and we spoke at some length about paragraph 7(c) of your stat dec sworn on Friday of last week, the 17th, and in relation to that paragraph there seemed to be a little bit of confusion in relation to it. Simply put, what is said in paragraph 7(c) is that the need, if I may:
PN1099
The need for more feedback generally to gain a greater reassurance that staff were happy with the proposed agreement before proceeding to the vote given the costs involved in the voting process.
PN1100
Are you in fact saying that if we can assure ourselves, or if your supermarkets can maximise the opportunity of having one vote, and that being a successful vote, through greater consultation and the fact that you wanted to make sure that everyone understood the agreement, that as a consequence if we only had one vote that that would be a lesser cost than these other processes, such as if a subsequent vote had to be taken?---Yes, it would, and particularly in the case that if we were to revert to the award for a short time the costs involved in modifying our computer systems to handle the changes of conditions and rates of pay would be exhaustive.
PN1101
I have no further questions, your Honour.
PN1102
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Burke?
PN1103
MR BURKE: If I could ask - there were some matters raised in that cross-examination in relation to the rate of pay.
THE SENIOR DEPUTY PRESIDENT: Yes, go on.
<FURTHER CROSS-EXAMINATION BY MR BURKE [1.03PM]
PN1105
MR BURKE: In terms of your knowledge that the proposed agreements have higher rates of pay than the award, does that come about
because of the buy out, for example, of the 17 and a half per cent annual leave loading and other matters?
---Well, I can't say yes or no to that question. When it comes to the annual leave loading issue, I in fact sought the MGAV, SDA
2005 agreement to find out that the SDA had removed the 17.5 per cent of loading, and I continued on the basis that if the SDA no
longer run 17.5 per cent loading that we would not run it either.
PN1106
Well, are you aware that you were looking at the wrong award for that, that the award that your stores are under would be the federal Shops Award, which does include the 17 and a half per cent?---No, I'm well aware of that. But I looked at the most aligned supermarket industry, being the independent supermarkets industry, the MGAV agreement that was organised with my peers, you might say, removed totally the 17.5 per cent leave loading from its conditions. It's simply not there. It's in the award but it's not in the agreement.
**** BRENDAN EDWARD BLAKE FXXN MR BURKE
PN1107
However you're not a party to that award are you?---That's irrelevant. It's my industry.
PN1108
You are not a party to the award are you not?---No. No, hang on. It's in the award but it's not in the agreement. It's not in the SDA, MGAV 2005 agreement, but it's in the award.
PN1109
You're not a party to the federal Shops Interim Award 2000, are you not?---I don't know the answer to that question. However, like for like, the SDA removed it from the current agreement with the MGAV, which is my peers, which is people like, for example, the Morgans, if they took up that agreement, Independent Supermarkets, similar size, similar volume of staff, they for example would not have annual leave loading. I saw it as almost the industry changed.
PN1110
Are you aware though with that company it's current agreements already do not have the annual leave loading?---Well, let's see which is which award.
PN1111
Your new agreements will strip that away for the first time won't it, and therefore that amount of money has gone into the extra amount to take it above the award, is that not correct?---You might construe as a partial reduction of the 17.5 per cent to phase it out, yes. But maybe Morgans is not a good example because they're a party to today's proceedings. For example, the Ritchies Supermarkets, which may be under the MGAV agreement, the same thing applies. It's the same industry, the same size stores, the same size volume of employees, no more leave loading from the agreement, which was negotiated with the SDA, where the award maintains 17.5 per cent. So it is, yes, the first time it's removed from our agreements, and it's clearly the first time it's been removed from the MGAVs as well.
PN1112
If I refer you back to your statutory declaration of 22 December at point 14, when you reviewed those agreements that had been proposed they did include some Ritchies stores that are ex Franklins stores, and you would have noticed then that 17 and a half per cent annual leave loading does apply in those awards?---Yes, that's right, absolutely.
PN1113
All right. So you are trying to - there is a distinction between some Ritchies stores and others, is that not correct?---No. No, not at all. What I'm saying is that like for like - - -
PN1114
MR FISCHBACHER: What's the relevance of this?
**** BRENDAN EDWARD BLAKE FXXN MR BURKE
PN1115
MR BURKE: No, your Honour, I didn't bring up - - -?---In my industry it appears from the way that the SDA agreements have been drafted, it appears that 17.5 per cent leave loading is being phased out across the industry.
PN1116
However, not when you look at your statement in point 14 of 22 December?
---Which is the date of the agreement. I'm talking about the current day trends and how the labour market is moving.
PN1117
No further questions, your Honour.
THE SENIOR DEPUTY PRESIDENT: Thank you. Thank you, Mr Blake, you may be excused?---Thank you, Commissioner.
PN1119
THE SENIOR DEPUTY PRESIDENT: Where do we go from here, Mr Burke? I have matters listed this afternoon. The next available time I have is at 2.15 on Wednesday.
PN1120
MR BURKE: You have no further time today, your Honour?
PN1121
THE SENIOR DEPUTY PRESIDENT: No.
PN1122
MR BURKE: Yes, we ask to come back on that time, and if we can be short now in putting some of our views if you like.
PN1123
THE SENIOR DEPUTY PRESIDENT: Well, I have to adjourn now, Mr Burke.
PN1124
MR BURKE: I'm happy to leave it in your hands, your Honour, if it's 2.15 Wednesday.
PN1125
THE SENIOR DEPUTY PRESIDENT: 2.15 on Wednesday.
PN1126
MR THOMPSON: Sorry, your Honour, I'm having difficulty hearing that discussion. Can you repeat that please?
PN1127
THE SENIOR DEPUTY PRESIDENT: Yes, 2.15 on Wednesday, Mr Thompson.
PN1128
MR THOMPSON: 2.15 next Wednesday?
PN1129
THE SENIOR DEPUTY PRESIDENT: Yes. And we'll try to get a video link organised.
PN1130
MR THOMPSON: I'd appreciate that if you could, your Honour.
PN1131
THE SENIOR DEPUTY PRESIDENT: I've omitted to ask you if you wanted to cross-examine at all. I apologise for that. It's a bit hard when you're not in front of me to remember you.
PN1132
MR THOMPSON: That's all right, no, I'm fine.
PN1133
THE SENIOR DEPUTY PRESIDENT: Had you wanted to ask either of the witnesses any question?
PN1134
MR THOMPSON: No, your Honour.
PN1135
THE SENIOR DEPUTY PRESIDENT: Very well, then you're not prejudiced. We'll adjourn until 2.15 on Wednesday, thank you.
<ADJOURNED UNTIL WEDNESDAY 22 MARCH 2006 [1.08PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #A2 COMPARISON DOCUMENT IN MATTER AG2005/7498 PN521
EXHIBIT #SDA3 COMPARISON DOCUMENT IN MATTER AG2005/7497 PN524
PINO PAOLUCCI, SWORN PN548
EXAMINATION-IN-CHIEF BY MR FISCHBACHER PN548
EXHIBIT #F1 STATUTORY DECLARATION OF PINO PAOLUCCI DATED 20/03/2006 PN559
CROSS-EXAMINATION BY MR BURKE PN571
FURTHER EXAMINATION BY MR FISCHBACHER PN749
EXHIBIT #F2 STATUTORY DECLARATION MADE ON 22/12/2005 PN755
CROSS-EXAMINATION BY MR BURKE PN756
RE-EXAMINATION BY MR FISCHBACHER PN804
THE WITNESS WITHDREW PN824
BRENDAN EDWARD BLAKE, SWORN PN868
EXAMINATION-IN-CHIEF BY MR FISCHBACHER PN868
EXHIBIT #F3 STATUTORY DECLARATION OF BRENDAN BLAKE PN877
CROSS-EXAMINATION BY MR BURKE PN879
FURTHER EXAMINATION BY MR FISCHBACHER PN1019
EXHIBIT #F4 STATUTORY DECLARATION OF BRENDAN BLAKE DATED 22/12/2005 PN1027
CROSS-EXAMINATION BY MR BURKE PN1036
RE-EXAMINATION BY MR FISCHBACHER PN1093
FURTHER CROSS-EXAMINATION BY MR BURKE PN1104
THE WITNESS WITHDREW PN1118
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