C2006/2675, Transcript of Proceedings [2006] AIRCTrans 884 (14 July 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 15334-1

COMMISSIONER EAMES

C2006/2675

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
AND
THE CRAFTSMAN PRESS PTY LTD
s.170LW pre-reform Act - Appl’n for settlement of dispute (certified agreement)
(C2006/2675)

8.57AM, FRIDAY, 30 JUNE 2006

Continued from 22/6/2006

Reserved for Decision

PN1

THE COMMISSIONER: Is there any change to appearances?

PN2

MR T HALE: There is, Commissioner. I appear on behalf of the AMWU today.

PN3

THE COMMISSIONER: Perhaps I should just indicate for the record that this matter was previously listed on the 22nd of this month and discussions took place at that stage to endeavour to settle the matter. As I understand it there were only two employees ultimately involved in the debate as to whether or not the circumstances amounted to a redundancy situation. In one of those examples agreement was reached in terms of the matter, but as I understand it, in relation to Mr Ball that the matter does remain unresolved and that what's being sought now is for the Commission to arbitrate the matter. Is that the position we're in,
Mr Hale?

PN4

MR HALE: That's correct, Commissioner.

PN5

THE COMMISSIONER: Perhaps I should hear from you in the first instance.

PN6

MR HALE: Yes, Commissioner. Just briefly in opening and what I'd seek to do fairly early in the proceedings is call Mr Ball and get the factual evidence before the Commission, but I guess what we're relying on is the provision in the agreement that was contemplated at the time of the negotiations for the new agreement. There were discussions taking place about moving to the new site. So that that's evidenced in application clause of the agreement, and I've got a couple of - - -

PN7

THE COMMISSIONER: I don't have one in front of me. If there's a spare I'd be grateful. Thank you.

PN8

MR HALE: Now this is the version of WageNet, Commissioner, but - - -

PN9

THE COMMISSIONER: It's clause 26 that you're referring to, is it?

PN10

MR HALE: Well, the first one I was going to take you to was clause 3, the application of the agreement, where it also, as well as applying to 25 Highbury Road, Burwood, it also applies at Westall Road, Clayton, so the parties at the time of making the agreement were aware of the potential move and that's why in clause 20 the relocation clause went in to the agreement. Now, dealing specifically with it:

PN11

In the event of the company relocating in 2006 the company will receive applications from staff regarding ...(reads)... and if the parties cannot reach agreement the issue will have been resolved under clause 10 of the agreement.

PN12

So that's what's got us here today, and I suppose what we're saying is two things. One is that we say the company is unreasonably declining that application, and secondly, they haven't gone through the process that's been set out in the agreement, and that's the next paragraph where they would establish a committee. I believe they established a committee, but this issue didn't go before that committee. I think the shop steward who was on the committee was one of the first to accept the hardship package. So we'd say that the committee has not made a recommendation in relation to this matter, but nevertheless we're seeking to rely on the voluntary redundancy aspect.

PN13

So there's some case law and I think notably the case of the Full Bench in relation to the Rubber Plastic and Cable Making Industry where they looked at the tests on relocation, particularly in respect of it being a repudiation of the contract of employment, so that by the employer not by the work in the same location, and that was a repudiation of the contract of employment. If accepted by the employee will bring about the termination of the employment.

PN14

I guess we say that we can satisfy those tests anyway, but the fact that the agreement has specifically contemplated these circumstances in the time of making that agreement, agreed they would not unreasonably withhold people making those decisions in relation t the hardship. We would say that the agreement is probably a stronger argument than the repudiation in the contract of employment.

PN15

Another aspect that will come out in the witness evidence that I think is fairly pertinent is that the employees, all of the employees following a one day stoppage in the lead up to the making of the agreement, were told, well, if you don't want to work here we'll give you a package and you can go. So if you do want to work here, stop going on strike and get back to business.

PN16

Now, a number of employees at that time put their hand up and took the package and went. Mr Ball could have at that time put his hand up and gone along with everyone else. No question of hardship, no question of anything else, but what he wanted to do is he wanted to stay with the company, he wanted to see whether the company could accommodate his needs in relation to his family responsibilities and it turns out he can't. So he's put his hand up now for the package, as he understood that he could in accordance with the terms of the agreement, and we say that the company is unreasonably withholding that provision to him.

PN17

Now, I guess it's going to come down to the witness evidence and it's going to come down to whether the Commission is convinced that there is sufficient hardship there to warrant it, but we would say that on the evidence it will be put that that will be the situation. So I don't know whether you want an opening from Ms Cleary or whether you want me to proceed to - - -

PN18

THE COMMISSIONER: I'm happy to take your evidence and Ms Cleary can address the Commission in due course if she wishes. That's fine.

PN19

MR HALE: Thank you. I'll call David Ball.

<DAVID JOHN BALL, SWORN [9.07AM]
<EXAMINATION-IN-CHIEF BY MR HALE

PN20

MR HALE: Could you just explain to the Commission how the change of the company's premises from Burwood to Clayton has affected your personal circumstances?---Certainly. I was offered the afternoon shift, which is 11 to three, which is an hour and a half later than what I normally work, meaning I'd be getting home at approximately a quarter to 12. Presently at the moment I was getting up in the morning, 7 o'clock, and looking after the kids. The wife got up and went to work. Getting home at quarter to 12 with some wind down time, I would find it very hard to help her in the morning with the children. They also offered me the - that wasn't acceptable, they offered me the day shift. The day shift meant more travelling for me and more petrol. It also means I'll be unable to help the wife in the morning with the children so she'll have to do that before she gets herself off to work which she leaves, just after 8 o'clock. My youngest one will have to go into after and before school care because she won't be able to drop them off at school, she leaves too early and I won't be there in time to pick them up from school. There's also a loss of the income, shift penalty, and the extra travel time in petrol that I'll be using too.

PN21

If we could just go back a step. Can you tell me what were your shift arrangements at Burwood?---I was working from seven to 9.30, Monday to Thursday, and Friday I was doing 7.30 to 3.30 pm, in the afternoon. That gave me one night a week home with the children and finishing at 9.30 meant I was home at about 10 o'clock, I could have the time to sit round for an hour or so before I went to bed, get up at 7 o'clock, a reasonable night's sleep. I would do all the children's duties in the morning, preparing them for school, lunches, dropping my oldest daughter off at high school, taking the youngest one down to school, she's just started prep, some basic duties round the house which meant my wife was free just to get up, get herself ready and leave to go to work, which means she only has to do one end of the day which was the afternoon, so she was only doing the evening duties, not doing both ends of the day.

**** DAVID JOHN BALL XN MR HALE
PN22

Now, those hours, how did those hours come about?---They came about early in 2005. The head of my department at that time came to see everyone in the department and asked if someone could go on to the afternoon shift. At first everyone said no, we can't do it, it doesn't suit us. Several times they came back and said, as a group, someone's got to do it, someone put their hand up, we need someone to do it. After discussions with my wife we decided that yes, I could take that on, and the fact that I would then do all the morning duties so she could simply just get up and go to work, making her morning much more relaxed and comfortable for her to get to work, and then she would do all the evening duties. So I agreed to do that and take on the afternoon shift.

PN23

The day shift hours on the Friday, did that have any significance?---Yes, I asked and said I could do that shift as long as on the Friday I could work to give me one evening home with the children and also I coach a junior basketball team and we train on a Friday night, so I needed to be there on a Friday night to train my son's team, he plays with the Eltham Basketball Club, I train that team and I coach them on a Saturday.

PN24

Now, what hours - you have moved to Westall Road, Clayton now, haven't you?
---Yes, I have.

PN25

So what hours are you working there?---I've gone down there on day shift, seven to three.

PN26

How much more time is spent travelling - well, first of all, whereabouts do you live?---Eltham, Eltham North.

PN27

So how long would it take you to travel from Eltham to Burwood normally on the afternoon shift?---On the afternoon shift it was taking me about half an hour, to and from work.

PN28

So about an hour a day travel?---Yes.

PN29

This week, it's only been this week that you have been down at Clayton, is it?
---Yes.

PN30

How long does it take you to travel this week down to Clayton?---It's been taking me about 45 minutes in the morning to get to work, and approximately an hour to get home, taking into consideration it's school holidays at the moment, so what it will be like once that finishes, I'm not sure.

**** DAVID JOHN BALL XN MR HALE
PN31

So have you noticed anything in relation to the your fuel bills?---I haven't looked at my fuel. As I said, it's only been one week, so I haven't really been able to gauge exactly how much more fuel I'm using, but it is, in the afternoon, half an hour more time in peak hour traffic.

PN32

So would you have some sort of an estimate?---I'm approximating it would be between 40 and $50 a week extra in petrol.

PN33

Back on the basketball reference, had you raised that with the company?---I did when they first came to me three or four weeks ago and said the new hours at Clayton would be three to 11 five days a week. I asked then if I could continue having the Friday as a day shift or possibly change that to another day, as a day shift, maybe the Monday, due to the 10 hour break, hard to get back there, so I can fulfil my commitment with the basketball team, I didn't leave the team early in the season with a new coach or no coach at all. I asked, I spoke with the supervisor and another person in the company and they said they would check with management and get back to me about that. I never heard anything back.

PN34

Now, if I could take you back to the one day stoppage in the negotiation of the agreement, can you tell me what happened after that stoppage?---Yes. The company called a meeting of all the staff to one of the board rooms that they have. Mike Shannon and Glen Draper were both there. It was basically spelt out they were quite unhappy about it and anybody who didn't wish to be employed at Craftsman or was unhappy being employed there could take - they had a
week - they could take a package and leave there and then on the spot.

PN35

And you didn't take that package?---No, not at that time. I was quite happy with the hours and my work, what I was doing. I believe that if the company couldn't give me an answer or didn't know what the new hours would be at the new site, so I thought I'd take the wait and see approach, wait until they could tell me what the new hours were going to be, what my duties and everything else and so forth were going to be and make a decision then, whether or not it was a hardship to me.

PN36

So why did you believe that you could make a decision then?---Well, it was covered in our EBA that we had two months prior to the move and four months after the move and I didn't have all the facts then, I didn't know what my hours were going to be. I didn't assume they were going to change that greatly. I couldn't get an answer from anyone as to what the hours would down at the new site, so it was a wait and see approach.

**** DAVID JOHN BALL XN MR HALE
PN37

In accordance with the agreement there's a provision that your hardship case goes to a committee. Were you ever aware that your hardship case went to that committee?---No. I handed it in to the company. Jamie Gallagher got back to me a week and a half later and said it had been rejected.

PN38

If I could just show you a document and I'll get you to explain what that document is?---This is the letter of hardship that I gave to the company and my reasons why.

PN39

So that was the letter you put in prior to being rejected?---That's correct, yes.

PN40

THE COMMISSIONER: I might mark that as an exhibit, H1.

EXHIBIT #H1 LETTER OF HARDSHIP

PN41

MR HALE: In relation to all of this that's been going on, you've been discussing this with your family, have you?---Yes, me and my wife have been having discussions regularly on this, yes.

PN42

Did your wife prepare a letter in relation to the matter?---Yes, she has, yes.

PN43

If I could just show the witness - is that letter a copy of the letter that your wife has written in relation to this matter?---Yes, that is.

PN44

I'd seek to tender that as well.

EXHIBIT #H2 LETTER OF DAVID JOHN BALL'S WIFE

PN45

MS CLEARY: Commissioner, before that letter actually is tendered, I'd like to know who this letter is actually addressed to and whether they seek to rely on it as a witness statement.

PN46

MR HALE: They're not seeking to rely on it as a witness statement because David's wife can't get away to come and give evidence and be cross-examined, but we are putting it forward as being David's wife's position in relation to the effect on the family and that's why I got David to identify it as being what his wife has written for today's proceedings for consideration of her perspective on the effect that it will have on her and the rest of the family.

PN47

THE COMMISSIONER: To the extent that that might be significant in any decision that I ultimately hand down, I'll make reference to it, but when people are not available for cross-examination, you'd appreciate that the weight one gives such an exhibit is qualified to some extent.

**** DAVID JOHN BALL XN MR HALE
PN48

MR HALE: Yes, thank you.

PN49

MS CLEARY: Thank you, Commissioner.

PN50

MR HALE: What's the situation in relation to your ongoing work with Craftsman if you're unsuccessful today?---Sorry, as in?

PN51

Well, if you're unsuccessful today, do you intend to continue working with Craftsman down at Clayton?---No. I'll look for other employment.

PN52

And that's for these reasons you've put forward?---Yes, I would look for another job closer to home, something that suits my hours more.

PN53

I have no further questions of the witness, Commissioner.

<CROSS-EXAMINATION BY MS CLEARY [9.21AM]

PN54

MS CLEARY: Mr Ball, in your evidence in examination-in-chief you talk about the fact that in 2005 you actually moved to the afternoon shift?---Correct.

PN55

And I'm assuming that prior to 2005 you were working the day shift, is that correct?---I was working day shift, yes. I've worked several different shifts over the years, yes, day shift.

PN56

Can you confirm for me what hours you worked prior to 2005, just, say, 2004?---I was doing a rotating afternoon and day shift, and earlier to that I was doing a night shift for about a year and prior to that I was on day shift when I first started with the company.

PN57

So when you look at the rotating day and afternoon shift, what hours were you working on the afternoon?---I think it was 12 till 7.30 or something like that. 12.30 to 7.30, something round there, I'm not exactly sure.

PN58

And the day shift, what hours were you working on the day shift?---Day was seven to three.

PN59

7.30?---Seven to three.

PN60

In your document which has now been referred to as exhibit H1, you have a copy of it there, you handed that to management at the company?---I handed this to Steve Williams who passed it on.

**** DAVID JOHN BALL XXN MS CLEARY
PN61

You handed that to the company in late May?---Yes.

PN62

It's true to say thought that prior to that date, in fact for the last 18 months, you've been aware of the fact that the company is going to be relocating from Highbury Road to Clayton?---Yes, I knew we were moving.

PN63

And it's true also to say that during that interim 18 month period that there have been ongoing discussions with all employees to advise the employees of the impact of that relocation?---Yes.

PN64

And it's also true to say that also that there have been discussions, particularly within your department, which I will call the pre-press department, for my purposes, that there were discussions with you of the need to re-align your shift patterns with shift patterns operating elsewhere within the company?---There was several rumours and discussions of what the hours would be, but there was no actual clarification or official word of what the hours would be.

PN65

In relation to your evidence today you say that the afternoon shift will cause you problems in relation to family responsibilities, particularly the fact that you're alleging that you won't be able to assist in the morning, how were you able to assist in the morning in 2004 in relation to the care of your children?---2004 when I was on day shift?

PN66

Yes?---Well, I was home every evening. I could help them with their homework, help them with their school work, getting them prepared - - -

PN67

I'm talking about in the morning, Mr Ball, in the morning in relation to preparing the children to go to school, because I'm assuming all of them were at school?
---At that stage they weren't, no. The youngest one has just started school this year.

PN68

So in relation to the two older children, how did you and your wife accommodate your family responsibilities in the morning in 2004?---In the morning, they're both a bit older, they are, they could basically get themselves ready almost, to a degree. They were both walking down to school at that stage. The school is a couple of k's away, they used to just walk down.

PN69

So you would have to agree that because two of your children, I think they are 11 and 13, is that right, the older two?---Yes.

**** DAVID JOHN BALL XXN MS CLEARY
PN70

Can actually help with preparing themselves in the morning to get to school?
---The 13 year old is quite capable. The 11 year old boy is still - needs a hand and needs prompting.

PN71

But obviously the burden on your family is reduced substantially compared to when they would have been five or six years of age?---Yes.

PN72

Currently you gave evidence that you are actually working on morning shift out at the Westall Road site?---Yes, I've taken a morning shift down there, yes.

PN73

And that was in agreement with the company, that you wanted to come on to days, that's right, isn't it?---Yes. I informed the company, yes, that the afternoon shift was impossible for me to do so I'd be doing day shift down there, that suited them, yes.

PN74

You talk about your commitments in relation to basketball and you actually coach the team on a Saturday, is that correct?---They play on a Saturday and we train on a Friday night, yes.

PN75

Why is it that you did not - you know, when you actually notified the company in May 2006, that you didn't actually outline that in your document to the company?
---Because this was a document to apply for hardship, to actually take the hardship package and I would no longer be employed, so it wouldn't be a problem. When I spoke to them about that, they first said I could do the afternoon shift or the day shift. I said if I was going to stay, I could do the afternoon shift. That's when I spoke to them about it and said I wouldn't be able to do the Friday night, the five nights a week because of my commitment to the basketball club.

PN76

Now, also the document that we're referring to now talks about the fact that by doing this shift, which means extending the conclusion of your shift by one and a half hours per day, it would make it impossible to see your children five evenings and most mornings every week, but you're not seeing your children currently in the evenings, are you?---The oldest daughter is up for a little while. The other two are usually in bed by the time I get home, yes.

PN77

So in relation to "the suffering of my children's education and upbringing", in relation to the definition of education, you're not really currently helping them with their homework, anyway?---I'm not helping them with their homework in the evening on the night shift, no, but I'm there in the morning to make sure they've got all their homework, projects in their bags, school library books, things like that, make sure they've got everything they need to take to school with them.

**** DAVID JOHN BALL XXN MS CLEARY
PN78

What time do they start school?---The daughter starts at 8.15 and the two boys start at 9 o'clock.

PN79

So therefore by getting home at - what time would you get home at the moment if you were working till 11 o'clock?---Approximately quarter to 12.

PN80

So getting home at 12 o'clock, what time would you envisage waking up in the mornings?---7 o'clock the children get up to get ready for school.

PN81

So by working the later shift times, would it prevent you from getting up at 7 o'clock in the morning?---Well, I'm getting home at 12, it usually takes about an hour or so to wind down to get to sleep, which means I wouldn't be getting to bed till 1 o'clock, which gives me six, maybe five and a half hours sleep, five nights a week, so that does start making it hard in the mornings to get up and - - -

PN82

But if the older children are getting themselves prepared, themselves having their breakfast, then you could, you know, obviously assist by getting out of bed at 7.30, you'd have to agree with that, wouldn't you?---Yes, I think - yes.

PN83

Just one question I need to ask in relation to, you handed this document to your relevant supervisor and at that time you also talk about, in your evidence, that you actually spoke to your supervisor in respect to your commitments in relation to the basketball coaching?---Yes.

PN84

It's true, though, that Jamie Gallagher said to you that your claim would be discussed with management and the hardship committee?---No, he never said that at any time, no.

PN85

And that after you handed the document to Mr Gallagher it was some days later that he came back to you to advise you that your claim had been rejected?---I didn't hand it to Jamie Gallagher. I handed it to Steve Williams, the paper supervisor. I asked Jamie three or four days later and he said they hadn't had an answer on the question yet. He got back to me about a week later and said it had been rejected.

PN86

Did you vote on the terms of the Craftsman Press Enterprise Agreement 2005?
---Yes, as a new member I had a vote on that, yes.

PN87

And you attended union meetings to discuss that agreement?---Yes, I did.

**** DAVID JOHN BALL XXN MS CLEARY
PN88

And you understand that in clause 4 it talks about the Craftsman Press, not only at Highbury Road, but also at Westall Road, Clayton?---That's correct, yes.

PN89

I've got no further questions, Commissioner, thank you.

<RE-EXAMINATION BY MR HALE [9.30AM]

PN90

MR HALE: In relation to the question by Ms Cleary you said that the burden has been - or you agreed with her that the burden from 2005 has been reduced. Do you remember agreeing to that?---Yes.

PN91

Now, if I can take you back to 2005, your eldest daughter, was she in high school by then?---Yes, she was, she was in first year of high school.

PN92

The youngest, what happened with him?---The youngest was doing kindergarten and family day care at that time. We had a lady who did family day care for us, which is caring in the home with four children. We've been using her for 11 years. She would sometimes pick our son up from home or I would just - if she couldn't come to my place, I would drop him I there and she would take him to and from kindergarten and pick him up and have him until the end of the day till 6 o'clock, whatever time it was suitable for my wife to pick him up.

PN93

Now, in relation to, you agreed that you could possibly sleep in a bit later till 7.30 am. How does that fit with you having to drop your daughter off at 8.15?
---Well, I agreed I could sleep in till that time. The chance of me ever doing it is unlikely. Children don't run as clockwork, as you know, they tend to vary their own selves around. I would still most days be up at 7 o'clock. The youngest one gets up at seven and wants his breakfast and he's up round doing things and the wife's doing her own thing, getting ready for work, so someone has to be watching him in the morning.

PN94

So it's a bit of a response to a demand, rather than something that you can plan, is that what you're saying?---Well, that's correct. You can plan all you like with children, but they're that unpredictable, you can't actually guarantee. I mean, sometimes they're up at 6.30. Sometimes they sleep in till quarter past seven, half past seven.

PN95

In relation to the question that was put to you about handing in your hardship reasons, and I think you said that you handed it to Steve Williams and then you got a response from Jamie Gallagher. The response, was that a surprise to you?
---Yes, it was.

**** DAVID JOHN BALL RXN MR HALE
PN96

Why was that?---I thought it would be accepted.

PN97

Why did you think that?---I think the hardship meets its requirements. It is a hardship and I think they would accept it. Several other people had taken it before me and have got it, quite happily.

PN98

Were you ever aware of their circumstances?---Not directly of their circumstances, no, not the actual hours and their work commitments and things like that, but I mean, I knew other people had applied for it and the clauses - they were changing their hours and it was further for them to drive, but I haven't spoken to them and got direct answers from them, no. The rumour mill is pretty strong in our place, so you can't always believe everything you hear.

PN99

But you were aware that other people had applied and had got it?---Yes, several other people have applied and got it, yes.

PN100

Were there any other people that you were aware of that applied and didn't get it?
---Yes - - -

PN101

MS CLEARY: I must admit, I object to this because it's supposed to be - - -

PN102

THE COMMISSIONER: I'm not sure this arises from the cross-examination.

PN103

MS CLEARY: I've been pretty lenient, Commissioner, but yes, I do, I have to say that, you know, re-examination is supposed to be based on what questions I have asked the witness and they're actually bringing in new evidence now which I wasn't given the opportunity to cross-examine on.

PN104

THE COMMISSIONER: Mr Hale, the objection that's been taken by Ms Cleary I think is valid. This doesn't seem to me to be an area that arises from cross-examination.

PN105

MR HALE: That's fine, Commissioner. What I'll do when I've finished with this witness is I would seek to call Mr Jim Reid.

PN106

THE COMMISSIONER: IN due course. I just want to ask a couple of questions when you're finished.

PN107

MR HALE: I'm finished, Commissioner.

**** DAVID JOHN BALL RXN MR HALE
PN108

THE COMMISSIONER: Just in relation to this hardship committee, Mr Ball, you were aware that there were two employee representatives on the committee?
---I was aware that there was a committee to be formed, yes, two members from the - - -

PN109

Did you know who they were?---Mark was one and I think Steve Williams was the other.

PN110

Did you speak to them at all about the fact that you'd been knocked back?---Yes, I spoke to Steve after it had been knocked back, yes.

PN111

And you asked them why, asked him why?---I asked him why, yes. He said that he'd been told by management that it's been rejected. That is, go up there and get a yes or no answer.

PN112

I understood just looking at clause 20 that the hardship committee is made up of two management representatives and two employee representatives?---Well, that's in the agreement, yes, but I have no knowledge of what happens, I've never seen it or been officially told who's on the committee.

PN113

But are you saying that the representative to whom you spoke indicated to you that management had rejected your application?---That's correct.

PN114

Did you take that up with the union at all?---That's when I went to Jim Reid, yes, and said it had been rejected and I wanted to take it further.

PN115

Just so I can be clear about the hours, at Burnley[sic] what was the afternoon shift hours that you were working previously?---1.30 to 9.30 Monday to Thursday and on a Friday I'd do 7.30 to 3.30.

PN116

7.30?---AM.

PN117

AM?---Yes, ten hour break and then back at 7.30 am.

PN118

What you're being asked to do now is finish up approximately three hours later, two and a half to three hours later?---One and a half hours, 11 pm at night, five nights a week.

PN119

Sorry, and getting home after midnight?---Yes.

**** DAVID JOHN BALL RXN MR HALE
PN120

Yes, okay. In relation to your claim for hardship you've raised a couple of areas that you say have impacted upon you. Are you able to rate them of me in terms of significance, that is, the family situation, the drop in the money, the travelling, whatever?---Yes.

PN121

What's the most significant?---The family one would be the most significant one to me.

PN122

And that element is associated with not being able to spend the time in the mornings with them that you would have in the past, is that right?---Well, that's correct, yes.

PN123

In terms of the afternoons, that's when you're getting home, that wouldn't be impacted as much, would it? The children would normally be in bed by the time you got home anyway, wouldn't they?---The children would be in bed, but the wife is usually - but if I get home at that time, the whole family will be in bed and the house will be closed down for the evening.

PN124

So for good or for bad you've drawn a member of the Commission that worked shift work for some 17 years and there was a time when I used to seek to get on to afternoon shift because we were able to get an extra $9 a week for doing that. I am going back a little bit when I'm saying all of that. You've also drawn a member of the Commission who has 11 children and who is very conscious of the need of husbands and wives and partners to cooperate with each other in the way they look after their kids and the rest of it. My own personal experience, for what it's worth, and I don't mean to gratuitous about all of this, was that when there was babies around, if you could crack it for four hours in a row, you were going real well, as the children came along, six or seven hours straight was almost a luxury from my memory. But I understand what you're putting in relation to all of this. At the end of the day I am going to have to adopt a view as to what the words of this agreement mean, what was the basis of the agreement and what led up to your application and the ultimate rejection by the committee. Are there any other aspects, other than what you've included in H1, your hardship reasons, that you want to put before the Commission in relation to this application?---No, that's pretty much - - -

PN125

Apart from what you've got there?---It pretty much covers it all and along with my wife's letter, she goes into a bit more detail with the family life. She covers all of it, yes.

**** DAVID JOHN BALL RXN MR HALE
PN126

All right. I've got no further questions, thank you?---Thank you.

PN127

Excuse me for my little diatribe, I couldn't resist the opportunity, thank you.

<THE WITNESS WITHDREW [9.42AM]
<JAMES REID, SWORN [9.43AM]
<EXAMINATION-IN-CHIEF BY MR HALE

PN128

MR HALE: Could you tell the Commission what position you hold with the union?---Regional secretary of the printing division Victoria.

PN129

You also do some organising?---Yes, I do.

PN130

So are you the organiser for Craftsman Press?---I've been the organiser for Craftsman Press on and off over a number of years, but for the last 18 months or so I've had responsibility for Craftsman Press and also was involved in negotiating the last agreement.

PN131

So you were involved in the negotiations on the last agreement. What can you tell us from those negotiations were the discussions in relation to hardship?---I'd possibly just to go back just slightly to say that we became aware obviously the company had been talking about moving to the new site. We had some concerns that the company might seek to move away from the longstanding EBA and move to a new agreement and so therefore we had discussions about making sure that the agreement continued to apply at the new site. Those discussions at that time were about a number of things regarding the move to the new site in terms of the equipment that may be used and that the presses were going to go to the new site. The current presses, while the company was going to take the opportunity to bring in completely new presses, there was discussions about, you know, at that stage of the game that the company needn't ensure that the equipment that they were using was employed over a longer period of time. Quite a number of the companies in the print industry in this Commission are moving to ensuring that they've got the equipment geared up over at least six days of the week, 24 hours a day, six days a week. That's just been created within the industry over the last couple of years. So there were certainly discussions at that time about the company perhaps having to move to employing the gear over longer periods of time, but the company would tell us and told us for quite some time after that that they were unsure as to how those new hours may be configured. I had discussions with the company at the time about the hardship that may arise from going to the new plant in terms of travelling, in terms of the new shifts, if in fact new shifts were brought in, as to how those new shifts would ultimately impact on people in terms of their wages, their hours of work, their family responsibilities and, of course, on top of that, the travelling time and so on. There was a number of factors that were discussed at the time. The general view was, because the company was not able to tell us just exactly what equipment they were putting in, what other gear was going to go with them, the current gear, whether they were going to put in completely new machinery, all of that had been undecided at that stage of the game. So we couldn't be specific over any of that except to say that changes would probably take place.

**** JAMES REID XN MR HALE
PN132

So at the time that the agreement was voted on, were the hours at the new site known?---No. The hours at the new site, to the best of my knowledge only became - well, became known to me probably about less than three months ago, I would say. I became involved in discussions with the company about the new 12 hours shifts that they were proposing to bring in probably about eight weeks or so ago and up until that point in time I had no discussions with the company about the new hours. The company had only - and speaking to the delegate who is no longer employed at the company, they had been asking for quite some time of the company what the new hours would be, what the new shifts would look like and so on and the company were unable to provide that information to them, except, as I say, in the last two to three months that became clear.

PN133

Are you aware of any other people applying for the hardship - - -?---Yes, I'm aware that quite a number of people in the press room have applied and received a redundancy. A number of printers and a number of - I think at least a couple of assistants, three or four printers have applied for hardship and have been accepted. I'm aware that there was two people in the pre-press area, that Mr Ball and Mr Crockett, who also applied, and their application for redundancy due to hardship was declined by the company.

PN134

Mr Crockett, was it?---Mr Crockett, yes.

PN135

So was he accommodated in some other way?---Mr Crockett - - -

PN136

THE COMMISSIONER: Just before you answer that. Yes, my knowledge of the arrangement in relation to Mr Crockett arose from discussions in conference and an agreement was reached in relation to that. So this application - - -

PN137

MR HALE: I guess rather than the terms of the settlement, what I was trying to get from the witness was whether he was in fact accommodated. So it could be answered with a yes or a no.

PN138

THE COMMISSIONER: Well - - -

PN139

MS CLEARY: No, I reject that, Commissioner, and I would say that anything in conference is confidential and it was an agreement reached between the former employee and the company and it should remain confidential.

PN140

THE COMMISSIONER: I think it's an area that's best left alone. I'm aware of what happened in relation to that because I was party to the discussions, but in terms of what I've got to determine here, it's best if that's all left to one side, and that the merits of Mr Ball's application be dealt with as Mr Ball's application.

**** JAMES REID XN MR HALE
PN141

MR HALE: And that's precisely what I was trying to do, was I was trying to isolate Mr Crockett from this situation by saying - - -

PN142

THE COMMISSIONER: It will have no bearing on any decision that I make at the end of the day in relation to this.

PN143

MR HALE: That's as far as I needed to go with that, anyway.

PN144

So they were the only two that you were aware of that had been rejected?---The other - that's right. The other people who had applied, printers, as far as I'm aware, had applied for the redundancy due to hardship, due to the change of hours. As far as I'm aware simply on the basis of their application it was accepted. It certainly had, as far as I'm aware, that would have to be - - -

PN145

THE COMMISSIONER: We'll just go off the record.

<OFF THE RECORD

PN146

THE WITNESS: I think I was saying that the printers had - that the printers and I think a couple of assistants had got the redundancy on the basis of asking, Commissioner, that the new hours didn't suit them and I don't think they - to get through - Mr Ball's went through.

PN147

MR HALE: In relation to the committee to be established under the agreement, was there any discussion in the negotiations as to who should be on that committee?---Well, certainly not with myself. I think there was - a complication arose. Mr Hartnett, Mark Hartnett who had been the father of the chapel at Craftsman Press for a number of years had suffered some ill health and he hadn't been at work for a number of weeks. I wasn't even aware that there had been applications made for redundancy under hardship until one of the printers, Mr Jason Wade, had contacted me to say that he'd applied for his redundancy and it had been rejected. Mr Hartnett was off work at that stage of the game, so the committee hadn't been convened and in fact I only became of Mr Ball's situation when I came in to deal with Mr Wade and spoken to the company about Mr Wade's application for hardship. Mr Ball and Mr Crockett approached me in the canteen and said, did the company mention anything about me, and I had to reply it was the first time I'd heard that he even had an application. So no, there was no attempt made that I'm aware of to convene a hardship committee.

PN148

So Mr Wade's problem was accommodated, was it?---No. He had applied for hardship in the same basis that a number of the other printers had, that the three 12 - sorry, the 12 hour shifts didn't suit his family circumstances. There were a number of other people - sorry. During the discussions about the 12 hour shift arrangements, the company decided to leave Mr Ball and the other people who were on that particular press, to leave them on their current shift arrangements.

**** JAMES REID XN MR HALE
PN149

Is that Mr Ball or Mr Wade?---Sorry, Mr Wade, Mr Wade, sorry, Mr Wade. Mr Wade and a number of other printers and assistants were left on the current shift arrangements, so that basically took away his argument that he should get redundancy on the basis of the new shift arrangements as he was left on his own, his shift arrangements as argument.

PN150

So that the hardship that he was experiencing was accommodated, it was - - -?
---It was accommodated. It was accommodated by leaving him on his previous shift arrangements.

PN151

Was there any suggestions of ways in which Mr Ball's circumstances could be accommodated?---Well, again, not in the conversations I had with the company. The company, I met with the company and put the situation to them that Mr Ball should be able to access his redundancy due to the hardship because of the changes to his hours, the impact on his family life, the drop in wages, et cetera, et cetera. The company's view was that they didn't think that constituted significant hardship, and on that basis they rejected his claim. We then had a discussion that we would refer the matter to the Commission as per the procedures contained in the EBA.

PN152

Now, I think - I don't know whether I've asked you or not, but do you know who were the employee representatives on that committee?---I can only assume
that - well, I would expect that Mr Hartnett, had he been at work, would have been one of them, but certainly another fairly experienced delegate, Stuart Livingstone - I'm assuming Stewart is still there - he would be the deputy father of the chapel, Mr Williams, who is, I think, a leading hand and a supervisor in the pre-press area had previously been a delegate, is a man who is fairly highly regarded by the guys, so I would have thought in the absence of Mr Hartnett, there were certainly other experienced chapel delegates there who could have formed part of the hardship committee.

PN153

THE COMMISSIONER: But do you know who was on the committee?---There was no committee, Commissioner, that I'm aware of. There was no committee ever formed. All I'm saying there, Commissioner, is that there are people who could have formed a committee.

PN154

Yes, I understand that, I just - - -?---Yes, yes.

PN155

MR HALE: So that by the time you got involved, the decision had already been made?---By the time I had got involved there were a number of people who had put their hand up for redundancy due to the relocation who said that the hours of work don't suit me, they had already been granted redundancy, in fact some of them had already even left, and by the time I was involved with regard to Mr Ball and Mr Crockett, the decision had already been made that they hadn't made a case.

**** JAMES REID XN MR HALE
PN156

I have no further questions.

PN157

MS CLEARY: Commissioner, I've got no questions for this witness.

PN158

THE COMMISSIONER: All right. I've just got a couple of questions and I take it from the previous answer that you gave me that you're not aware that there was a hardship committee established to deal with the applications?---That's right, Commissioner.

PN159

Do you have any intimate knowledge at all of the basis upon which the redundancy payments were granted to people who applied under the hardship basis?---Yes. It was the change of hours, Commissioner. The company were proposing that people who go the redundancy were moving from the shift on which they'd been on for a fairly significant period of time and that the company proposed to introduce a three 12 hour shift operation and those shifts just simply didn't suit. They just simply didn't suit the people - - -

PN160

So it wasn't a straight change of start/finish times as was the case with Mr Ball, but more a change of shift patterns, the way it was to be worked?---I think they were going to work the same amount of hours, but what it was, obviously, a three days as opposed to a four days that the guys would be working.

PN161

It was a completely different way that people were going to be working?---It was completely different, it was completely different, and for some of them, for some of them, there was probably an element of travelling as well. I haven't spoken to each of the guys indirectly because they applied and they received that. So there was never an opportunity for me to sort of say, well, you know, what case did you put to the company, you know, what argument did you put up? Was it simply because of the change of shift? Was it because there was a reduction in wages? Was it because there was extra travelling? They just simply said I want it, the company said okay.

PN162

When did Mr Ball approach you in the first instance in relation to his claim?
---That would have been about - I'm only stabbing the dark on this one, Commissioner, because I'd have to go back and check my diary notes, but I would say it was round about four weeks ago.

PN163

Some time during May or June? What I'm getting at - - -?---It would have been during May, yes. It would have been probably towards the end of May.

**** JAMES REID XN MR HALE
PN164

That's fine. I've got no other questions?---Thank you, Commissioner.

PN165

Is that the evidence from your point of view, Mr Hale?

PN166

MR HALE: That's correct, Commissioner.

<THE WITNESS WITHDREW [10.00AM]

PN167

MS CLEARY: Thank you, Commissioner. I'm just going to call one witness today, Commissioner, and it's Mr Draper, please.

<GLEN ALEXANDER DRAPER, SWORN [10.01AM]
<EXAMINATION-IN-CHIEF BY MS CLEARY

PN168

MS CLEARY: Commissioner, I'd like to hand up to your associate a witness statement. Mr Draper, do you have a document in front of you? Before I do that, Mr Draper, could you confirm for the records your name and your position, please?---Glen Alexander Draper. General manager of The Craftsman Press.

PN169

Mr Draper, do you have a document in front of you?---I do, yes.

PN170

Could you confirm for the record what that document is?---It's a witness statement on the case that we're hearing today.

PN171

Mr Draper, you're general manager for The Craftsman Press, and were you involved in the negotiations of The Craftsman Press Enterprise Agreement 2005?
---Yes, I was.

PN172

Can I ask you to look at the agreement for me?---Sure.

PN173

Thank you. Mr Draper, I would like you to read clause 4 of that agreement under the heading Parties Bound. What was your understanding when this agreement was negotiated for the two location references?---It was important for our staff to be totally aware that we were moving the business and where this agreement would cover them, not just on Highbury Road, but also in Clayton.

PN174

While I've got the document in front of you, could I get you to look at clause 20, headed Relocation, and get you to refer to the second paragraph, and the second sentence starting with the words "The remedy", and if I can get you just to read that?---Sure. "The remedy for hardship may be voluntary redundancy and the company will not unreasonably decline an application and if the parties cannot reach an agreement the issue will be resolved under clause 10 of this agreement.

PN175

What was your understanding of the issue to do with "remedy for hardship may be voluntary redundancy"?---It's important for the business and their staff to have, in this case, as it says, that we would potentially use the clause 10 under the agreement and if the two parties cannot agree to a redundancy that there's a party or we both could go to the unfair - well, this process, in reality, to the unfair dismissal.

PN176

Now, looking at the witness statement that you have prepared in this matter, I'd just like you to elaborate for the Commission some of the aspects that you've actually detailed. You talk about the fact that approximately 18 months ago staff were advised that the company would be relocating from its premises at Highbury Road to Clayton, some 11 kilometres away. Could you outline to the Commission the essence of the discussions that you had with the employees at that time and in the ensuing months until today's date?---We see the move as being quite a positive for the staff and so as soon as we were committing to the purpose built site, we communicated to staff as early as possible, and that's why the EBA agreement included the address and so forth, and from that point on we met - or I met with all of the staff quarterly to give them updates in relation to how the progress is going with he building and, as we went through those stages, every quarter I met and we run a people program called Eyes On The Ball and we talked about how we - how the progress of the site is going, what's going in to it. We engage them to the point to try and excite them about the move.

**** GLEN ALEXANDER DRAPER XN MS CLEARY
PN177

Now, at point 5 you talk about specific discussions occurring in the pre-press department. You have been present in the Commission today to hear the evidence of Mr Ball. Are you surprised that he rejected that he was advised that the shifts would have to be aligned together?---The discussions have been clear for some time. The specific time starts and finishes may not have been notified 12 months ago, but we'll certainly flag that we would align shift patterns in that area and, yes, I suppose I was a little surprised.

PN178

Now, in relation to some of the evidence that's been given today and first, the fact that other employees were paid redundancy payments, initially from the evidence it's been in relation to a dispute occurring around the time of the negotiations of this agreement?---Yes.

PN179

If you could just outline for the Commission the basis for those payments?---The situation, when the staff went out on strike for that day, disrupted the business and our customers greatly and we were certainly by the upset to the disruption to our customers. There was also a number of staff within the business that we believe didn't want to work for us. So we gave the opportunity over five days, we opened up a voluntary redundancy on the back of the action that was taken and yes, we had a number of people approach us during that time and we gave them voluntary redundancies as per the EBA agreement at that time.

PN180

Were those voluntary redundancies, or the people that put their hands up for those voluntary redundancies ever mention hardship grounds?---It was nothing to do with hardship.

PN181

There has been some further evidence given by Mr Reid that other employees put in claims for hardship and I think, you know, he talked about hours of work and some printers. How many other individuals have put their hands up for hardships that the company has rejected?---There's been four to six staff including a couple of printers and assistants that have applied for hardship that have been rejected. In some cases through that we have worked through things and in other cases people have resigned and moved on.

PN182

In relation to those hardship plans put up by those four to six individuals, what sort of hours of work do those people do?---The ones that we accepted or declined?

PN183

Rejected?---Rejected. Currently they were doing full rotating shifts and - - -

**** GLEN ALEXANDER DRAPER XN MS CLEARY
PN184

You might have to explain to the Commission what you mean by full rotating shift in your case?---In the printers' case they are currently working three morning, afternoon and evening shifts and that fully rotates through - it takes three weeks to fully rotate through the shift pattern for the printers. In another case for hardship that gentleman was just on a normal day shift so there'd been quite a mix really.

PN185

With those individuals that you rejected, are they still with the company?---Some are, yes.

PN186

What sort of hours are they now working with the company?---In relation to the printers?

PN187

Yes?---They're still working their existing shift pattern.

PN188

Now, in relation to the discussions re hours of work at the site, did you have discussions with Mr Reid?---Sorry, can you repeat that?

PN189

In relation to hours of work, the proposed hours of work to be worked at the new site, did you have discussions with Mr Reid?---In relation to the 12 hour, in the press room, yes, we did.

PN190

Now, obviously one of the issues that a lot of the evidence has been given today is in relation to the hardship committee and I'll get you to refer to clause 20 of the enterprise agreement again, and it's the third paragraph of that clause, and it talks about, "A hardship committee will be formed from 1 March 2006." Was that committee formed?---Yes, it was.

PN191

Who participated on that committee?---It states in here that Rick Barry - Rick Barry's left the business - so Jamie Gallagher came in. Myself and Jamie Gallagher, Mark and Steve were the - was the committee and we did start that committee and the process that was committed to. Mark, as stated earlier, was one of the people that received a hardship. He also fell ill, quite seriously ill, so his input as we grew became less because he wasn't available, but the three of us continued to meet. The four of us were meeting weekly at 7 am regularly. If Mark was on an afternoon shift we'd meet just before his shifts start. So that committee was certainly engaged.

PN192

If I can get the witness to be shown as exhibit H1. Mr Draper, have you seen this document before?---Yes, I have.

**** GLEN ALEXANDER DRAPER XN MS CLEARY
PN193

Was this document produced by the hardship committee?---Yes, it was. In this case it was the three of us, Steve Williams, Jamie Gallagher and myself. Mark wasn't available.

PN194

Mr Draper, before concluding can I get you to confirm that the witness statement before you is a correct record of your recollection of the events?---Yes, it is.

PN195

And, Commissioner, on that basis I'd like to tender that as an exhibit.

EXHIBIT #C1 STATEMENT OF GLEN ALEXANDER DRAPER

PN196

MS CLEARY: I have no further questions of my witness, thank you, Commissioner.

<CROSS-EXAMINATION BY MR HALE [10.12AM]

PN197

MR HALE: Now, at clause 20, I think you said that the strike, the company was upset and that you'd opened up voluntary redundancy for five day. Now, that was available to everyone, wasn't it?---Correct.

PN198

And so that David Ball could have put his hand up then if he knew, as you say, that you were going to be moving to the new premises, that as you say in your witness statement, that he knew what times were going to be worked, so there was nothing there that was unclear for him, so he could have just put his hand up and, no question of hardship, no question of anything else, he could have gone at that time, is that right?---That offer at that stage was nothing to do with hardship. It was all to do that we believed that there was a lot of disgruntled staff that didn't want to work for us, and so we opened up a voluntary redundancy at that period and if David chose to discuss that with us at that point he would have been accepted.

PN199

So no one was rejected, it was open to anyone and it was just a matter of putting your hand up?---At that time, yes.

PN200

Now, you said that four to six staff have applied and been rejected?---That's correct.

PN201

And you say that in other cases people have resigned and moved on?---Correct.

PN202

How many of those resigned and moved on?---One of the- the storeman has done that.

**** GLEN ALEXANDER DRAPER XXN MR HALE
PN203

Was he covered by this agreement?---Yes, he is.

PN204

How long had he been there?---He's been with us for many years.

PN205

So you had an employee who had been there for many years. Did his hours change?---No, they didn't.

PN206

Was he of retirement age?

PN207

MS CLEARY: I question the relevance of this cross-examination, as to how it goes to the matter before you, Commissioner.

PN208

THE COMMISSIONER: No, I'm happy for the question to be asked because it does rise out of the response that was made earlier by Mr Draper in terms of the four to six who left. I'm interested to hear about that as much as we can.

PN209

THE WITNESS: Can you repeat the question?

PN210

MR HALE: Yes. In relation to the storeman, was he of retirement age?---I don't - what do you call retirement age these days? We've got people who are working - - -

PN211

Well, getting the pension or - because it seems to me that somebody with long service, that gets rejected and then just resigns and moves on - - -?---No, no, I think - and I'm happy to talk further about this particular gentleman, because he basically, as others - and he'd admit this, he just thought he'd give it a go and see what happens. He's made plans of moving to Foster and he's currently living in, I think it's Ringwood or Mitcham, and he's moving down to Foster later this year with his wife and that's been a plan for him and he totally understood our position.

PN212

So he would have resigned anyway?---I don't know. You'd have to ask him that.

PN213

THE COMMISSIONER: Well, we don't know, do we? It's not relevant.

PN214

MR HALE: But I guess it is a big commute from Foster to - - -?---I don't know. You'd have to ask him that.

PN215

Who else just resigned and moved on?---I can't recall the other - if there is another one. There's definitely - I'd have to refer to my notes about that.

**** GLEN ALEXANDER DRAPER XXN MR HALE
PN216

Have you got your notes with you?---No, I haven't. The printers that we were talking about have been, as Jim was talking about earlier there, they're going to be working their existing shift pattern on their existing - or on their press, so they're not affected and so those applications were rejected.

PN217

Well, they were also accommodated, weren't they, they said, we're getting hardship as a result of your changes and you said okay, fair enough, we won't go ahead with the changes in relation to you, is that an accurate assessment of what happened?---Look, we wanted to work with them as much as possible and in this case, in that specific situation there was a number of applications and we - in that - in this situation worked with them to agree to resolve it and that's what we did.

PN218

So they had a problem, they raised it with you. You said, well, rather than losing your skills, we'll accommodate your particular problem by doing this?---On that particular example, yes.

PN219

So apart from the storeman who's moved to Foster, is there anybody else who was rejected and not accommodated?---Obviously Jim, Jim Crockett.

PN220

I'm just mindful of the discussion we've had in relation to Mr Crockett.

PN221

THE COMMISSIONER: And I'm aware of that, that there was an accommodation reached there and I understand the circumstances. Beyond Mr Crockett?---Not that - not anything that comes to mind right now, no.

PN222

MR HALE: So it would be fair to say that David Ball is really the only one who hasn't been accommodated, with the exception of the storeman who moved to Foster?---Correct.

PN223

When did the company perform a printers' - what the new shift arrangements would be at the new site?---With the printers?

PN224

Yes?---Specific date would have to be probably four months ago specifically. Well before that we were having discussions in relation to how rotating shifts would work and I met one-on-one with all the printers and assistants over a period of time to discuss the - actually the suggestion came from the committee to meet with the staff one-on-one and discuss opportunities with shifts and what would be their preferences. We drew up four questions for me to ask each of the individuals and that took a couple of days to work through and that would have been four to five months ago.

**** GLEN ALEXANDER DRAPER XXN MR HALE
PN225

What about the pre-press people, when were they told the specific times of the shift at the new place?---Specific times would have been probably a week or so prior to David Ball applying for hardship, so that would have been May.

PN226

About May?---In relation to being very specific in the start and finish times. And the main reason for aligning those times is that we need to cover more hours in that area and our customers are requiring more efficient turnaround times in relation to proofs and so forth, so we need that area working longer and that's why we've asked to alter the shift an hour and a half longer each day.

PN227

So in point 5 of your witness statement, where you refer to staff in the pre-press department were told in excess of 12 months ago, that when the company relocates to Clayton all shifts in all departments would be aligned and as a result afternoon shift in pre-press department would move back to the 3 pm start on each days of the week, Monday to Friday. How is that consistent with what you just said?---That's correct. I stated over 12 months ago that we would be aligning and altering shift patterns in the pre-press area. As I said earlier, we weren't specific in relation to the actual time, but it was certainly flagged some time ago that we will be making some alterations to hours in the pre-press area.

PN228

So that Mr Ball, not until May of this year, he didn't know exactly what times he was going to be working, did he?---As I said earlier, no. He was told a couple of weeks prior to him putting his application in.

PN229

When you said four or five months ago the printers were informed of the specifics of their shift patterns - - -?---We started to engage them four or five months ago about the shift patterns.

PN230

So when would final agreement have been reached in relation to the shift patterns?---I'd have to refer to the file, but I'm sorry, I didn't come with that information in relation to the print room. It would have been - I'd be guessing to say.

PN231

Were there any complaints from either the pre-press room or the printers in relation to the company not giving them enough notice of what the changes in that were going to be?---In a business our size, you will always have some people that are not totally happy. In relation to the pre-press area, well, obviously it brought David to apply for hardship, so that - there's one there for you. That's certainly - but as for formal complaints in writing, no.

**** GLEN ALEXANDER DRAPER XXN MR HALE
PN232

Did the father of the chapel or the deputy father of the chapel ever come up to you in a meeting to say look, we want more information in relation to what the shifts are going to be because people need to know how they can accommodate their lives, was that ever put to you?---Not formally, no. I don't recall that at all, the father of the chapel coming to me asking me that.

PN233

So the father of the chapel never said to you, look, we need more information in relation to the shifts?---In relation to the print room or - I don't recall him being specific about asking me that.

PN234

In relation to any area?---No, I don't.

PN235

Okay?---He - yes, we had numerous open discussions about the press room and the father of the chapel was never - never ever queried any other area except
the - or discussed areas than the press room.

PN236

Just in relation to the committee that you gave some evidence about, you said there was Jamie Gallagher, yourself, Mark and Steve, but Mark had been off with a fairly serious illness?---Yes.

PN237

Now, Mark is the father of the chapel, is he?---Correct.

PN238

And Steve, is that Steve Williams?---Correct, Steve Williams, which is also, as Jim noted earlier, a very respected guy within the business and I believe he was also previously a delegate and I'm not sure if he was father of the chapel at one stage, but - - -

PN239

So when you discussed David's application was that a formal meeting, were minutes kept or - - -?---We didn't keep minutes, no, but the process of the discussion was - and it wouldn't have just been David's discussed in that meeting. As you can appreciate there was a fair bit to cover off during this period and we'd all discuss the claim in - that was put forward and everyone had an opportunity to say whatever they wanted and that was the process held and if we couldn't
come - you know, and that's why we're here today and I think that's why it's very important that the agreement has the clause 10 in it in relation to dispute settlement and we didn't actually communicate back. When we rejected things we obviously also encouraged the staff member to consider clause 10 if they felt that they would like to pursue it further.

**** GLEN ALEXANDER DRAPER XXN MR HALE
PN240

Was there ever any disagreement in the committee as to whether someone might be entitled and others said they weren't?---In this case, no.

PN241

I think you said you dealt with quite a number of them at the same time?---Sure, but in David's case there was - we were all in agreeance, the three of us. In other cases there - we actually came back to other cases and discussed them further, and as it states in the agreement, the decision - I can't remember what clause it's in, but the final decision of rejection is with the business, but we obviously took a lot of time in relation to the hardship committee to discuss every case on its basis.

PN242

Right, so I'll take you back to the question. Was there ever any disagreement in relation to any of these applications within the committee?---There would have been for sure.

PN243

How was that resolved?---As I said, we - I recall one that we didn't agree on and we would reconvene to - we'd take some time out to reconsider and we'd reconvene and discuss the case further and at the same time we would hear from the individual and let them talk to the claim and then, as a committee, catch up again and talk about it further. Now, that wasn't in this case, but there was a situation like that.

PN244

So there was one situation like that and what was the outcome of that?---In the end he's still with us.

PN245

He was accommodated?---It was worked out.

PN246

So in this case it was unanimous that it wasn't a hardship?---Correct.

PN247

So you didn't feel that it was necessary to ask whether Mark had any further submissions or - - -?---Mark at this stage had declared that he'd considering that he was a hardship or redundancy. By this stage Mark had not formally resigned from the hardship committee, but had verbally said to Steve Williams and myself that he didn't feel that it was appropriate to sit on the hardship committee at that stage because that he - you know, his hardship was accepted.

PN248

So in David's situation did you take into consideration the fact that - him going back on day shift would be a fairly substantial reduction in his earning capacity?
---We offered that through the process that it wasn't about - initially about earnings. It was about accommodating his family requirements and that's why a day shift position was offered. We didn't talk about the wage side of it.

**** GLEN ALEXANDER DRAPER XXN MR HALE
PN249

So you didn't consider a reduction in income being a form of hardship?---No, we didn't, but I think the claim was based around family.

PN250

Have you got H1 there with you?---Yes, I have.

PN251

If I could take you to the second part there, page 1 where it says day shift, he talks about petrol, approximately $50 and the loss of his shift loading, it comes to about $200 a week, so it wasn't just about his family, was it?---No, well, the day shift was an option for him.

PN252

But that would cost him about an extra $150 net?---Sure. The company's position was to explore avenues for him to continue his employment with us and that was an offer in relation to day shift.

PN253

But he put forward to you that that was a hardship. You met, as part of the committee, to consider whether there was a hardship. You've told us you really only considered his family responsibilities because you didn't know that money was an issue?---I think I misconstrued your question in my - - -

PN254

So would you concede now that money was an issue?---The offer of day shift was put forward as an option for David and that was on the back of to try and accommodate for his family situation.

PN255

He pointed out in H1 that that would cost him $200 a week?---We were exploring avenues for David to continue working with us.

PN256

But you'd reached agreement that said if there's a hardship, this is the process that we'll consider. Don't you consider a reduction of income of $200 a week a hardship?---David also - I'm not sure how to answer that.

PN257

It might be just - - -

PN258

THE COMMISSIONER: It might be something for submissions.

PN259

MR HALE: Yes.

PN260

THE COMMISSIONER: I mean, the fact is that the committee met, informal though it was, and rejected it. I take it the committee was aware of this document at the time it was considering the application. Is that right?---Correct, yes.

**** GLEN ALEXANDER DRAPER XXN MR HALE
PN261

Right, and one assumes these things are taken into account but at the end of the day you'd probably have something to say about that in submissions I assume, Mr Hale.

PN262

MR HALE: Yes. What would you say in relation to evidence given by David today that he spoke with Steve Williams and Steve Williams' response - about whether the committee had accepted, and Steve Williams' response was along the lines of management just decides those things. Would that be accurate?---I couldn't tell you. You'd have to ask Steve Williams that. Again, I couldn't tell you.

PN263

THE COMMISSIONER: Mr Draper wasn't privy to the conversation, it's a bit hard.

PN264

MR HALE: No, I understand that. I guess he couldn't strenuously deny that that's the way in which the committee works?---You didn't ask me that. Steve Williams is a respected guy in the business. I respect the guy. I can't comment on what he said to David.

PN265

No, but could you strenuously deny that that's the way that the committee works?
---I've already commented on how the committee engaged this case and walked you through how we came to that decision.

PN266

So I can take it you can't strenuously deny that that's the way the committee works?---The committee, in this case the three of us, all agreed on David's case and what comment was made in relation to the management have made their decision, I don't know what he said to David.

PN267

I think I got my answer. Now in paragraph 7 of your witness statement you say:

PN268

As David Ball's children are 5, 11 and 13 respectively, The Craftsman Press queries whether his children were up at this time and even if they were still awake, whether David Ball was spending quality time with them.

PN269

So The Craftsman Press, is that you? I mean, the press obviously didn't consider it?---The Craftsman Press is the business.

PN270

Yes. Well the business didn't - - -?---And I'm representing the business.

PN271

Okay, so that was actually you that considered that?---It wasn't just me. The actual committee would have discussed such a thing. But look, if you want me to put my name to that comment, I have. It's part of my witness statement.

**** GLEN ALEXANDER DRAPER XXN MR HALE
PN272

THE COMMISSIONER: It's part of the witness statement.

PN273

MR HALE: Except that it said that it was The Craftsman Press, not, "I formed this opinion."

PN274

THE COMMISSIONER: Well, I take it that it's Mr Draper's view.

PN275

MR HALE: Okay. Have you got any children?---No, I haven't.

PN276

So how did you arrive at that view?---Well, I have friends and family with children of similar age groups that I am intimately aware of and I understand that children are not up at that time in the evening and that's where we came to that view.

PN277

Thirteen year olds aren't up at that time?---At 11 o'clock at night?

PN278

I don't think the evidence was that he was getting home at 11, was it?---I don't - I know of a number of 13 year olds that would be, if not in bed, close to bed at that period of time, 10-ish, 11, definitely, you know, in the process of getting to bed at 10 would be late.

PN279

So how important was that consideration in you deciding whether there were any family responsibilities that could be offended against in Mr Ball's situation?---Can you repeat that again?

PN280

How important was that consideration when you made a decision that there wasn't any real offence to Mr Ball's family considerations?---I certainly believe it's a big part of the decision process of altering his finish time by one and a half hours. It didn't directly affect his family situation in the evenings.

PN281

So that was a big consideration?---Mm.

PN282

Did you seek any further clarification from him before the decision was made?
---No, I didn't.

PN283

You say in paragraph 9:

PN284

In addition the extra net travel time from the old site to the new site is only minimal.

**** GLEN ALEXANDER DRAPER XXN MR HALE
PN285

?---From the old to the new it's approximately 15 minutes.

PN286

At what time of the day?---If you were talking in relation to David's shift patterns, that would be correct.

PN287

So what route did you take?---I take a number of directions. Do you want me to be specific about those directions?

PN288

Yes. I know the area, give us a few ways?---Is it - is it Huntingdale, is it Huntingdale just up from - Huntingdale down through either straight up to Dandenong Road, along Dandenong, where the new site is at the West Dandenong Road end of Westall Road, Princes Highway or whatever it's called. The other option is the arterial to Blackburn Road, Blackburn Road through to Westall Road. They're the two options.

PN289

THE COMMISSIONER: That's the best run in my view?---Yes. With the freeway's blocked, you just keep going past and up to Princes Highway.

PN290

MR HALE: So for a day shift start you would say that you'd do that in 15 minutes?---You'd do it - I travel that road myself and at that time, the day shift, it wouldn't be an issue at all, 15 minutes from Craftsman Press site.

PN291

So you get there for the start of day shift, do you?---My day commences around 7.30 each day.

PN292

Out at the job?---Between seven and 7.30, to 8 o'clock I'm there on site.

PN293

So even on your calculation that would be an extra half hour travel a day, would it?---For David, yes.

PN294

In your witness statement at paragraph 6 you say:

PN295

At no time did David Ball raise that the change in shift configuration for the afternoon shift would result in additional travel time.

PN296

?---In specific to his afternoon shift claim, it doesn't. It does in relation to his day shift claim. It's separated. It doesn't claim that in relation to his afternoon.

PN297

In H1, on the back page, third paragraph from the bottom, it says:

**** GLEN ALEXANDER DRAPER XXN MR HALE
PN298

Also the other factor of the day shift time being seven to three, means the extra travel would make my trip in the afternoon at least one and a half hours, possibly two hours in the afternoon.

PN299

?---That's related to the day shift, yes.

PN300

Okay, so you would read that as rather than possibly two hours in the afternoon shift, you would read that as being two hours in the afternoon at the conclusion of the day shift, is that - - -?---Well, that's the way I read it but I'd also challenge that those time frames are correct.

PN301

At 3 o'clock in the afternoon?---Correct.

PN302

THE COMMISSIONER: Well, they're all subjective views, aren't they, in terms of travel times and when they're undertaken and all the rest of it?

PN303

MR HALE: Well, yes, there is a bit of subjectivity and there's also - it can vary from day to day. I mean, school holidays - - -

PN304

THE COMMISSIONER: Of course it can.

PN305

MR HALE: School holidays it's certainly a bit lighter on the traffic when I'm travelling, anyway.

PN306

THE COMMISSIONER: Yes. But I'm conscious of the fact that what - the facts that we're dealing with here are effectively Eltham to Burwood, or Eltham to Clayton.

PN307

MR HALE: That's right.

PN308

THE COMMISSIONER: And how you get there and how long it's going to take and to what extent that it's an additional imposition in terms of travel time. It obviously is because it's further, as to how significant that is, and whether that's a particular facet that gets you over the line in terms of hardship. I've got to make a judgment about that at the end of the day. I'm aware of the circumstances. I too am relatively familiar with the area. I certainly don't support the Eltham Wildcats and never have because they always gave my team at Doncaster a bit of a hard time whenever we played them, but leaving that to one side, I'm familiar with the areas and the travelling and all the rest of it and hopefully I can make a reasonable judgment about all of that.

**** GLEN ALEXANDER DRAPER XXN MR HALE
PN309

MR HALE: Okay. I have no further questions, Commissioner.

<RE-EXAMINATION BY MS CLEARY [10.47AM]

PN310

MS CLEARY: Now, Mr Draper, in your evidence you talk about - all the evidence today has been about other employees who have applied for hardship and your response has been yes, we've been able to work through those claims and the wording used by Mr Hale has been that you've been able to accommodate those individuals, and further more, there's been discussions in relation to the hours of work?---Mm.

PN311

Now, the hours that these individuals were working or currently working are rotating shifts?---Yes, correct, rotating shifts.

PN312

The proposed hours that you were putting to them, for example, say, five, six weeks ago, what were those shift patterns?---They were three day rotating 12s, so a 36 hour week, 12 hour days.

PN313

So therefore when you say that the matter has been resolved, the matter was resolved because of the fact of the 12 hours shifts, or to do with the hardship?
---To do with the 12 hour shifts.

PN314

If you can outline for the Commissioner what you mean b resolve in respect of the 12 hour shifts?---We - in relation to that one, that press, is basically stayed identical hours that they're currently working on that particular press instead of the 12 hour options. So they're staying on identical shift patterns.

PN315

So are they working eight hours a day?---Yes. In the - yes, eight hour shift patterns.

PN316

So when you talk about 12 hour shifts, is that going to be a completely new shift pattern at your company?---Yes.

PN317

And the discussions that you had were in regard to wage rates with the employees in regard to 12 hour shifts?---Correct, yes.

PN318

The matter had to be resolved because there was no agreement?---That's right.

PN319

Now, furthermore, just in relation to exhibit H1, when you received this document you had discussions with Mr Ball regarding the company's preference as to which shifts that you would like him to work?---I didn't personally, but Jamie Gallagher and/or Steven Williams would have.

**** GLEN ALEXANDER DRAPER RXN MS CLEARY
PN320

What was your understanding of what the preferences of the shift roster was for Mr Ball?---From Mr Ball?

PN321

No, from the company?---From the company's perspective was to - the afternoon proposal.

PN322

Then in relation to the day shift it was put as an alternative option?---Correct, yes.

PN323

No further questions, Commissioner, thank you.

PN324

THE COMMISSIONER: Just on that last point, which is what I was going to ask you. In terms of the sequence of events, exhibit H1 is the document that was prepared by Mr Ball which was presented to the committee?---Correct.

PN325

When did the alternative of day shift first raise its head? Had it come up before that document was received?---I believe so. I believe the - - -

PN326

In what way?---Verbally. I believe that the offer in relation to days would have been verbal prior to this document being issued.

PN327

Do you know that for sure?---No, I don't know that for sure but I'm assuming that that's the case.

PN328

Perhaps I should have asked Mr Ball the question, but - - -?---The only reason I would - - -

PN329

Do you believe that I would be correct in assuming that before Mr Ball drafted his note to you, exhibit H1, he was aware that there was an option - - -?---I believe - - -

PN330

On day shift, as an alternative to the change of hours for afternoon shift?---I believe so. Mainly - the reason why I believe that is otherwise he wouldn't have referred to day shift because his current role is in day shift, and if he wasn't aware of that offer, he wouldn't have referred to it at all.

PN331

In terms of the offer of day shift, where did that idea come from? From the committee or from The Craftsman Press?---It would have been either by Steve Williams or Jamie Gallagher.

**** GLEN ALEXANDER DRAPER RXN MS CLEARY
PN332

As an alternative?---As an alternative, yes.

PN333

To the change in afternoon shift times?---Because we were seeking at that stage day shift staff and so it would have been offered as an option.

PN334

What, new staff, you were going to employ people on day shift?---Yes.

PN335

I've got no other questions, that's fine.

<THE WITNESS WITHDREW [10.52AM]

PN336

THE COMMISSIONER: We might just take a short break before we take final submissions. I take it that's all the evidence from your side, Ms Cleary?

PN337

MS CLEARY: Thank you, Commissioner, yes.

PN338

THE COMMISSIONER: We'll take a short break and resume at 11 o'clock.

<SHORT ADJOURNMENT [10.53AM]
<RESUMED [11.07AM]

PN339

THE COMMISSIONER: Mr Hale?

PN340

MR HALE: Yes, Commissioner. In relation to this matter, as I foreshadowed at the commencement of proceedings today, we would be predominantly relying on the wording of the agreement in relation to the right to have a properly considered application for voluntary redundancy arising from hardship and that would be arising from clause 20, Relocation, that was negotiated at the time of the making of the agreement when relocation was foreshadowed.

PN341

We say that the evidence does demonstrate that at the time up until about a week before, and this is on Mr Draper's own evidence, up until about a week before the document, H1, was put in, the application was put in, it was unsure what the shift patterns were going to be. If you go to the clause in relation to relocation where it's dealing with the hardship committee and it says:

PN342

A hardship committee will be formed from 1 March 2006 to consider applications for voluntary redundancy on the basis of hardship brought about by the relocation of Craftsman Press and any related change to shift patterns.

PN343

So it's certainly a change to the shift pattern. Starting and finishing times of the proposed shift were changed.

PN344

We also say that there was hardship brought about by the relocation. So that that hardship was in relation to the family responsibilities and in relation to the additional time spent away from home as well as the hardship that was arising from the change in the starting times. So that it had a double effect. He was away from, on the evidence of Mr Draper, so I guess, our worst case, he would be away an extra half hour a day, and on our evidence it was more than that.

PN345

There was also the hardship in relation to the additional petrol involved, and we're not sort of, at the present time, dealing with a fear of the unknown. We're now in a situation where Mr Ball is in fact travelling that road. He's only been doing it for four days so far, so that things such as the additional cost to the petrol are not crystal clear. Like, if you'd been doing it for 12 months you could say my petrol bill increase by this much over that period of time.

PN346

THE COMMISSIONER: Sure.

PN347

MR HALE: But at least he's not in a well/maybe situation. He's now got concrete experience of what the changes in circumstances mean to him. So there's also the hardship in relation to the moving to day shift and the loss of the $150 net that was put in the evidence in H1, and I think that that's a hardship that is by no means minimal. If you're getting a reduction in pay or a reduction in your disposable income by $200 a week, it's a fairly substantial impost on your family budget.

PN348

So we say that there is a hardship and that there's at best a deficiency in the way in which the hardship committee operate. The evidence that was put by Mr Ball was that when he spoke with the supervisor who was the employer rep, Steve Williams, that when he spoke with Steve, Steve said, you go up there and the management tells you what's going to happen. Mr Draper was given plenty of opportunity to specifically deny that that was the case and he didn't take that opportunity. So that the operation of the committee was not as it seems was intended by the negotiators of the agreement.

PN349

Now, in the clause in relation to relocation the second paragraph says:

PN350

The remedy for hardship may be voluntary.

PN351

So it's not obligatory that it would be voluntary redundancy but it was certainly something that was contemplated, "and the company will not unreasonably decline an application." So what we're saying is that the company did unreasonably decline the application. The reasons that were given by Mr Draper who was representing the company's position were not substantial reasons. In his evidence he showed that he hadn't seriously considered the loss of $200 of income as being a hardship that should be considered.

PN352

He initially said that he thought that the hardship was in relation to the family responsibilities, and that on his evidence it was also that he didn't believe that there would be any effect on the quality time that David Ball was spending with his family, and that's in paragraph 8 of his witness statement. The amount of quality time that one is spending with their family is also fairly subjective in that it might be, for some individual, being able to coach your son at the basketball on a Friday afternoon, might be considered quality time. But that's not necessarily the same quality time for another individual.

PN353

So that the view taken by Mr Draper as to what the impact on the family life of Mr Ball might be is very much someone looking from the outside. Mr Ball was the one who was given the opportunity at the negotiations of the agreement, that if he didn't want to work for The Craftsman Press, he had the opportunity to just put his hand up. There was no obligation to show any hardship, there was no obligation so that if all he was doing was trying to sell his job, he could have sold it then.

PN354

On the evidence before you, the company was prepared to give it to anybody who was prepared to put their hand up and, as Mr Draper said, that if Mr Ball had put his hand up at that time he would have got the package. So it's not as though we're dealing with someone who's seen this as being some way of getting second division in the Lotto. He's seen it as an entitlement under the agreement, that if the new system was not working for him, he believed, and on reading the agreement had every right to believe, that if the hours and the relocation impacted harshly on him, then there was an avenue there for him to reconsider his position with the company.

PN355

While he was working at Burwood he was quite happy and would have been quite happy just to continue working at Burwood under the same circumstances forever. But it was the company that had changed the location and changed the hours that made his situation of trying to marry his working life and his family life, make it unworkable. So that he was left with a situation of making a choice and that's making a choice between his family life or his working life, and as the agreement contemplated, he would be able to resolve that and still have an opportunity and time to find work elsewhere by being offered a voluntary redundancy package.

PN356

We say that the company has unreasonably withheld the access to that ability, and that he was the only one out of everybody that applied that wasn't accommodated in some way, that wasn't given a remedy that they could manage to reduce the hardship. If it were only one of the hardships that was being inflicted on him, then that may have been something that he could have accommodated, but he's got the additional hardship of more time away from the home. He's got the additional hardship of the starting and finishing times changing as well, and then he's got the additional hardship of the extra distance and the extra costs arising from that.

PN357

Then you put into that mix the reduction of the penalty for the afternoon shift, so he's getting less money, spending more money to get to work and reducing his family time and that's where he's sought to avail himself of the award provision, and he's been the only one that's been rejected. The others have been initially rejected, but have been accommodated. He was not accommodated.

PN358

THE COMMISSIONER: And I think it's fair to say that there was a proposition on the table that sought to achieve accommodation, but in Mr Ball's case, it wasn't an accommodation he was prepared to involve himself in. I don't put it any higher than that, but that's a fact, because Mr Crockett was ultimately sorted out as well.

PN359

MR HALE: Yes, yes.

PN360

THE COMMISSIONER: But we don't need to go into details about that.

PN361

MR HALE: Okay. Now, Commissioner, I think I touched on this earlier, but I'll just reiterate, that the time that David first became aware of the actual impact, so when he first became aware, he knew where the distance was, but when he first became aware of the hours that were available to him was a week before he put in H1. So it wasn't a matter of at the time that the offer was unconditionally put that anyone could take a package, he wasn't aware and couldn't have been aware of the full impact that it was going to have on his situation.

PN362

So that it can't be argued that he had been in a situation where he could have taken it, he knew at the time, he chose not to then, now he's taking it. It was only when he was fully aware of the full circumstances that he applied to have the benefits of the agreement. I have no further submissions, Commissioner.

PN363

THE COMMISSIONER: Yes, thank you. Ms Cleary?

PN364

MS CLEARY: Thank you, Commissioner. I'd like to hand up some decisions to you, Commissioner, and it might be easier for you if I just hand up a bundle and refer to them as I go through.

PN365

THE COMMISSIONER: Thank you.

PN366

MS CLEARY: Commissioner, we too rely on the terms of the enterprise agreement and we too rely on the words that actually literally appear in that document, and I think that's very important that we need to focus on that document, and as you know, Commissioner, that in interpreting any document or reading any document we must take the words as they literally appear and the first clause that we say that we must address is clause 4, which talks about parties bound, and refers to not only The Craftsman Press being located at 125 Highbury Road, Burwood, but also The Craftsman Press being located at Westall Road, Clayton, and we say that this goes to one of the issues before you in relation to the employment location of employees, and we say that at common law it can be implied that the location of employment of Mr Ball was not site specific, but rather it was contemplated and envisaged by this document that he would be employed at two different sites during the length of this agreement's operation.

PN367

In support of that contention, Commissioner, I would like to refer you to the first decision, which I'm sure you are conversant on, this is a Full Bench decision in re Rubber Plastic and Cable Making Industry Consolidated Award 1983 and if I can refer you to page 49 of that decision. In looking at this decision what's important about the decision and some of the other decisions that I've handed up to you this morning, it talks about that:

PN368

In determining whether hardship exists, each individual's circumstances must be looked at objectively.

PN369

And we say that that must be the test that you must look at:

PN370

It cannot be determined solely on the basis of whether the employee

PN371

in this case, Mr Ball -

PN372

himself says so.

PN373

And therefore I'd like to refer you to this decision.

PN374

It says:

PN375

This case concerned a dispute which arose following the closure by the company of a factory at Annandale near the centre of Sydney and the transfer of operations to an established factory at St Mary's, some 40 kilometres away.

PN376

Which is obviously a further distance than what you need to address today:

PN377

The union brought to the Commission a claim for severance payment for 10 of the 23 employees who did not wish to transfer to St Mary's.

PN378

In this decision a Full Bench held, on page 49, in the first paragraph, and it starts with the words, "A relocation."

PN379

THE COMMISSIONER: Yes.

PN380

MS CLEARY:

PN381

Will not be in breach of the contract of employment if transferability with employment if an expressed or implied term of the original contract of employment or ...(reads)... through conduct of the employer and the employee.

PN382

We say that clearly clause 4 of the enterprise agreement contemplates that location at Highbury Road is not an express term of the employment contract. But rather there is contemplated within the terms of this agreement that employees will be transferred from one site to the other. We further state to you, Commissioner, that the other clauses of the enterprise agreement further reaffirm this position because it talks about, you know, relocation, it talks about hardship and furthermore, those sorts of notions.

PN383

Obviously the Full Bench went on to say that:

PN384

It is a matter of degree whether an employer's relocation of the place or the place of work is a breach which goes to the reason of the employee's contract.

PN385

Which we state and clearly we say that the enterprise agreement supports our position. If however, Commissioner, you don't agree with me on that aspect, we say that it is - even if you say, you know, location was at Highbury, we say that structural justice of Australian industry does demand a relatively high level of organisation and employment mobility and that's something that you need to take into account in determining the facts before you, and that it would be contrary to the public interest if liability for payment of severance payments were to become a disincentive to necessary relocations of employment associated with organisational change.

PN386

In this decision the Full Bench subsequently found that the change of location of employment was of such a degree to amount to repudiation, but that was in the fact that it was a fair distance away and more than the level of kilometres that you're currently addressing. But despite saying that, we say that this hardship claim should have nothing to do with net additional travel time, because the face is this enterprise agreement contemplates the fact that it can be located at the Clayton site.

PN387

Obviously the comments made by the Full Bench have also been reaffirmed by Commissioner Richards in a recent decision of the AFMEPKIU v Coates Hire, and in this decision the Commissioner highlighted the importance of taking into account the mobility of the contemporary workforce and business organisation. Now, Commissioner, taking into account the Full Bench decision was handed down in 1989 and we're now in 2006, I think that's obviously an important relevance that you need to take into account, about mobility, about restructuring and obviously basically taking into account the fact that the areas of Melbourne are expanding in relation to where manufacturing sites are located.

PN388

It is the company's position that Mr Ball has been offered ongoing employment at its new premises at Clayton, which we say, as I said, approximately 11 kilometres away and we say that the worst case scenario is he may be spending an additional 30 minutes per day travelling. Furthermore we say the job that Mr Ball is being asked to perform is identical to that which he was performing at the Highbury Road site. He has been offered acceptable alternative employment, and he was offered no reduction in his weekly wage rate.

PN389

The evidence has clearly indicated to you that it was the company's preference for him to remain on the afternoon shift, and Mr Ball even has agreed that he is currently working day shift because that was what he'd asked to do. Therefore any submission made and any evidence given that he has due to the company's conduct, go to result in a reduction of his weekly wages, should have no relevance and should have minimum relevance attached to it.

PN390

We say that the 3 pm to 11 pm shift roster is reasonable. We say that it does not adversely impact on his family life and we say that the evidence provided today does not indicate that his family responsibilities are adversely impacted. We also refer you to the concept of manager prerogative, Commissioner. That you do need to consider competing considerations, the right of the company to manage its business on the one hand, and the interests of the employee on the other, and we do refer you to decision of the Full Bench decision in the XPT case, and if I get you now to look, Commissioner, at the case of Textile Clothing and Footwear Union of Australia, and that's at paragraph 56.

PN391

THE COMMISSIONER: 56?

PN392

MS CLEARY: Yes. In this decision, in the XPT case, a Full Bench:

PN393

The former Conciliation and Arbitration Commission, dealt with the tribunal's approach to the right of an employer to manage his own business in the following terms.

PN394

And as you can see there, Commissioner, it says:

PN395

It seems to us that the proper test to be applied and which has been applied for many years by the Commission is ...(reads)... might damage the health of the employee would be both unjust and unreasonable.

PN396

Then we look at paragraph 23 of that decision, it says here, obviously in determining managerial prerogative it talks about a reconciling employment and family responsibility, it says:

PN397

In my view the Commission's task is to strike an appropriate balance between the interests of the employer and the relevant employees.

PN398

And last but not least, paragraph 79, Commissioner, in conclusion Vice President Ross states:

PN399

As previously mentioned the approach I intend to adopt in this matter is not to interfere with Hook's right to manage its business unless what it proposes is inconsistent with its legal obligations ...(reads)... and any discriminatory effect of the company's proposal.

PN400

We clearly state that the evidence does not establish that we have been unjust or unreasonable in asking Mr Ball to change his shift pattern from 1 o'clock to 9.30, to three to 11 o'clock at night. In fact, Mr Ball, in cross-examination, did confirm that the children are in bed. His 13 year old daughter may be up in the evenings, and in respect to the morning responsibilities he did confirm that with children, you are up at 7 o'clock and no doubt most of us in this room can verify that children do dictate your sleeping patterns, and that Mr Ball also confirmed that his two older children are becoming more independent and are assisting with their preparation for school.

PN401

In particular, Commissioner, in relation to the closing submissions put by Mr Hale we reiterate again that the reduction in pay that has been referred to you in respect to the day shift should not attract any relevance, because the preference of the company was for Mr Ball to remain on afternoon shift and that Mr Ball is currently working day shift at his own election. In relation to the operation of the hardship committee, we refer you to the evidence of Mr Draper, where Mr Draper has confirmed that the committee did operate as it was intended, and that we say that participation did occur at that committee and that any evidence that the committee did not operate, that the evidence of Mr Draper should be preferred.

PN402

We say that if any hardship is to be considered, it should be the family responsibilities and that was the only hardship element that you should consider. With respect to quality time and with respect in relation to obligation, in respect to coaching of basketball, we say that this is a lifestyle or personal circumstance, that it's an individual choice, but the company cannot influence nor be accountable for such individual choices.

PN403

We further refer you to the evidence that Mr Ball, prior to 2005, was working rotating shifts. At that time he was able to marry, in the wording of Mr Hale, his working life and family responsibilities. No evidence has been able to demonstrate that the change from the three to 11 would result in him not being able to again marry both his working life and his family responsibilities. He's been able to achieve that in the past.

PN404

Last but not least, Commissioner, there has been a lot of evidence given, or a lot of questions asked of the witness in respect to the voluntary departures that occurred while this agreement was being negotiated. We say that is not relevant to the case before you today. Those voluntary departure packages or people who were able to put up their hands and leave the company with payments equivalent to redundancy were as a result of industrial action occurring on the site at that time. It had nothing at all akin to hardship and therefore should have no relevance to the decision that you may make this morning.

PN405

Commissioner, it's on that basis that we say that this application for hardship should be rejected and that the company has a position for Mr Ball to continue in and that the company wishes for that employment relationship to continue and - - -

PN406

THE COMMISSIONER: Is that on either shift, day shift or the afternoon shift?

PN407

MS CLEARY: Correct, yes. Yes, it is, and that we seek that you issue a decision on the basis of our submissions made this morning, thank you.

PN408

THE COMMISSIONER: Anything further, Mr Hale?

PN409

MR HALE: Just briefly, Commissioner. This matter was brought to you under 170LW. So it was to be a decision about the operation of the agreement. The clause that deals with the dispute between us is clause 20. Now, the company had a management prerogative not to agree to clause 20. Once they've agreed to clause 20, the prerogative - they don't have a management prerogative not to abide by the terms of clause 20. They've agreed to it and they're bound by it for the life of the agreement or until the agreement is replaced and that's what we say this argument revolves around.

PN410

It revolves around the operation of clause 20 and, as I pointed out in my opening, we weren't going to chase rabbits down burrows in relation to whether the contract of employment had been repudiated. It was an argument that was available to us, but we concentrated in relation to the argument on the operation of the clause. It's probably a bit questionable even whether the terms of the agreement are imported into the contract of employment, given the decision in Byrne & Frew, but I didn't want to get into that scenario.

PN411

THE COMMISSIONER: No, that's fine.

PN412

MR HALE: So that's basically what I would urge the Commission to do, is to concentrate on what the dispute between the parties was on the matters on the operation of clause 20 of the agreement and whether in fact the hardship was a hardship which was contemplated by that clause which would mean that the voluntary redundancy should have been an option available to Mr Ball.

PN413

THE COMMISSIONER: Thank you. All right. I follow all that. Look, I intend to reserve my decision. There are a couple of matters I just want to review to be certain about in my own mind, but I appreciate it's in everyone's interest to get a decision on this matter sooner rather than later, and hopefully we should be able to achieve that next week. The Commission adjourns on that basis.

<ADJOURNED INDEFINITELY [11.43AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

DAVID JOHN BALL, SWORN PN19
EXAMINATION-IN-CHIEF BY MR HALE PN19
EXHIBIT #H1 LETTER OF HARDSHIP PN40
EXHIBIT #H2 LETTER OF DAVID JOHN BALL'S WIFE PN44
CROSS-EXAMINATION BY MS CLEARY PN53
RE-EXAMINATION BY MR HALE PN89
THE WITNESS WITHDREW PN127
JAMES REID, SWORN PN127
EXAMINATION-IN-CHIEF BY MR HALE PN127
THE WITNESS WITHDREW PN166
GLEN ALEXANDER DRAPER, SWORN PN167
EXAMINATION-IN-CHIEF BY MS CLEARY PN167
EXHIBIT #C1 STATEMENT OF GLEN ALEXANDER DRAPER PN195
CROSS-EXAMINATION BY MR HALE PN196
RE-EXAMINATION BY MS CLEARY PN309
THE WITNESS WITHDREW PN335