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Australian Industrial Relations Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 16659-1
SENIOR DEPUTY PRESIDENT WATSON
C2007/2446
LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION
AND
UNIBIC AUSTRALIA PTY LTD
s.170LW -prereform Act - Appl’n for settlement of dispute (certified agreement)
(C2007/2446)
MELBOURNE
2.10PM, THURSDAY, 15 MARCH 2007
Hearing continuing
PN1
MR B REDFORD: I appear for the applicant in this matter and I’m joined at the bar table by MR Y BAKARI, B-a-k-a-r-i.
PN2
MR J YEATMAN: I appear on behalf of the respondent.
PN3
THE SENIOR DEPUTY PRESIDENT: Yes, very well. Is there any issue about leave, Mr Redford?
PN4
MR REDFORD: No issue, your Honour.
PN5
THE SENIOR DEPUTY PRESIDENT: Yes, leave is granted, Mr Yeatman. I should indicate for the record that inspections were undertaken
with the parties yesterday and the Moorabbin Erica's factory in Henley Court, Moorabbin and today at the Broadmeadows factory at
Northcorp Boulevard, Broadmeadows.
Mr Redford, perhaps I'll start with you.
PN6
MR REDFORD: Your Honour, perhaps we should begin with the issue of
Mr Quinn.
PN7
THE SENIOR DEPUTY PRESIDENT: Yes, certainly.
PN8
MR REDFORD: It might be appropriate for the witnesses to go out now as well, your Honour.
PN9
THE SENIOR DEPUTY PRESIDENT: Very well. I would ask all witnesses to leave the court for the moment. Yes, Mr Yeatman.
PN10
MR YEATMAN: If the Commission pleases, the applicant just seeks leave to file and serve the statement of Michael Quinn. This is a statement in response. It wasn't the respondent's intention to adduce evidence from Mr Quinn but the evidence-in-chief in the statement of Mr McNeill raised a number of allegations or made a number of assertions about meetings with Mr Quinn and it was felt that it was therefore necessary to respond to those. Regrettably Mr Quinn is in India and has been in India for a week or so and there was just some difficulty in - no insurmountable difficulties but some difficulties with the time difference and with Mr Quinn's commitments in India to have a statement settled.
PN11
The statement was in fact settled on Tuesday when it was due but it was not forwarded to us until Wednesday and was brought to the Commission's attention as soon as we could do that after the visit at Moorabbin. So on that basis we respectfully seek the Commission's leave to file and serve this statement and to rely on the evidence that Mr Quinn gives.
PN12
THE SENIOR DEPUTY PRESIDENT: Yes. Mr Redford.
PN13
MR REDFORD: Your Honour, I object to this. In my submission your Honour has discretion to allow this statement to be filed and for the witness to give evidence and discretion not to allow it and in my submission your Honour should exercise discretion about that question based on weighing the prejudice to the respondent - to the applicant, I'm sorry, if the statement and the evidence was allowed in against its probative value. In relation to prejudice, we are prejudiced by - we are prejudiced if the statement is allowed in, if this evidence is allowed in. I received a copy of this statement at 4 pm yesterday afternoon, your Honour, and as a result it's been extremely difficult for me to obtain instructions about the contents of the statement from Mr McNeill against whose evidence the statement is directed.
PN14
Mr McNeill was involved in a significant dispute at another LHMU site last evening. The dispute wasn't resolved until about 11 pm, at which time he went home and he was back on the road, I'm instructed, about 6 am this morning for a meeting at seven and other matters that he needed to deal with. As you're aware of course, your Honour, we had a site inspection this morning at 10 and after that Mr McNeill was again dealing with other things he needed to and in the course of transit to and from the site inspection I was able to speak to Mr McNeill about it but not in the way that I would have liked to if I had had more time and had the opportunity to seek proper instructions from him, so we're prejudiced in that way, your Honour.
PN15
Possibly even more significantly, had we had notice of this statement and of the material within it we would ourselves have sought to deal with it by calling our own evidence and in particular evidence from an LHMU delegate who was involved in the discussions around the 2004 agreement along with Mr Quinn and Mr McNeill and that person's name is Bob Jardine. We made contact with Bob Jardine about two weeks ago by email. Mr Jardine now lives quite literally, your Honour, in a jungle in Thailand. He's very difficult to contact. We're able to correspond with him via email and check some things with him but we decided given the logistical difficulties involved that we wouldn't seek to adduce evidence from him in this matter. But your Honour, we would have had we known the contents of Mr Quinn's statement earlier, so we're prejudiced in that way.
PN16
Your Honour, can I take you to Mr Quinn's statement and make some submissions to you about its probative value?
PN17
THE SENIOR DEPUTY PRESIDENT: Yes.
PN18
MR REDFORD: And I might go through it quickly paragraph by paragraph. The first two paragraphs are not contentious, your Honour. The third paragraph says that the respondent has - in effect says that the respondent has at all times cooperated with the union about the proposed move from Moorabbin to Broadmeadows. Well, we concede that, it's not contentious.
PN19
THE SENIOR DEPUTY PRESIDENT: Yes.
PN20
MR REDFORD: The union has a very good relationship with this company and apart from disagreeing over the meaning of this clause
in the agreement we've had good communication about the move. The fourth paragraph begins with in my submission those words of concern,
"In my opinion", and then goes on to give
Mr Quinn's opinion about the meaning of the clause which you're in this application asked to determine. And simply gives his opinion
about the meaning of the clause and the spirit behind it. Well, your Honour, that's your job and
Mr Quinn's opinion about the meaning of this clause won't add anything to this proceeding in my submission.
PN21
Paragraph 5 simply reiterates evidence that's given by the respondent's other witnesses that the respondent has not made any changes to its labour force or it's not reduced its labour force as a result of this move and, your Honour, that evidence is given elsewhere. It will be given elsewhere and Mr Quinn is not needed to do that. Paragraph 6 that Mr Quinn rejects completely the assertion made by the union that the loss of jobs arising from the relocation of production facilities is a reduction of the respondent's labour force as a consequence of new technology, et cetera. Well, that's what this case is about, your Honour. Of course he rejects that assertion. We wouldn't be here if he didn't.
PN22
Paragraph 7 contains a specific denial with respect to Mr McNeill's statement that's been filed and the denial is, your Honour, that
Mr Quinn denies that
Mr McNeill represented to him or the respondent's negotiating team that the key issue to members at the respondent's Moorabbin factory
were the rumours that the factory may be moved to Broadmeadows and in my submission that's a specifically framed denial, your Honour,
but that's not what Mr McNeill says at all. If I can take your Honour very quickly to Mr McNeill's statement, on page 8 of that
statement, your Honour.
PN23
THE SENIOR DEPUTY PRESIDENT: Page 8, yes.
PN24
MR REDFORD: Paragraph 28, the second line of that paragraph says that
Mr McNeill's evidence will be that at Moorabbin the key issue that members were concerned about were the rumours of the movement of
the plant to Broadmeadows. He also then says in paragraph 29 that he raised the members concerns with the company but he doesn't
say, as Mr Quinn suggests he did, that he represented to the company that the key issue for members was in fact the move from Moorabbin
to Broadmeadows. He raises the issue but he doesn't say he said it was the key issue.
PN25
THE SENIOR DEPUTY PRESIDENT: Yes.
PN26
MR REDFORD: Where in any event, your Honour, right out on the tangent here of relevance anyway about what Mr McNeill may or may not have said was the key issue. But I simply submit that paragraph 7 of Mr Quinn's statement really adds nothing to these proceedings. Paragraph 8 of Mr Quinn's statement contains another specific denial that he gave Mr McNeill an assurance that there was no intention of moving Moorabbin to Broadmeadows. Now, if that evidence was given by Mr Quinn would produce a conflict on the evidence, your Honour, so I might deal with that in a minute separately.
PN27
Paragraph 9 of the witness statement says that in effect he couldn't have said that it was too costly to move the plant because now
it's happening and, your Honour, that's just an argument and I've no doubt my learned friend will put that in submissions and it
can be dealt with that way. There's no need for that to be put in evidence. Paragraph 10, your Honour, says that with respect to
paragraph 30 of Mr McNeill's statement that Mr Quinn denies that he agreed at any time with
Mr McNeill to pay higher redundancy payments to employees in the event that the company changed his mind. If I can take you back
to paragraph 30 of
Mr McNeill's statement, there may well be an inference drawn from paragraph 30, your Honour, that Mr McNeill is representing that
Mr Quinn specifically assured him that this clause would protect LHMU members from a potential shutdown but I'd submit that that
won't be Mr McNeill's evidence because if it was Mr McNeill would really be giving evidence about something that is within Mr Quinn's
mind.
PN28
He really couldn't give that evidence in that form and I suspect that, your Honour, that what he would want to do is he would want to clarify that to the effect that what happened was Mr McNeill made a proposal and Mr Quinn agreed with it and Mr McNeill had an idea about what the proposal was about and Mr Quinn had his own ideas about what the proposal was about and those two sets of ideas may not have corresponded in the end. No-one knows because neither of those two men knows what each other was thinking.
PN29
THE SENIOR DEPUTY PRESIDENT: But Mr McNeill's statement is in fairly specific terms, isn't it -
PN30
I asked Michael to give our members some comfort Moorabbin would not be shut down by committing to pay higher redundancies in the event the company changed its mind, ie. shut down Moorabbin. He agreed to this proposal.
PN31
On its face Mr McNeill seems to put a very specific proposal.
PN32
MR REDFORD: Yes, and I'm conceding that on its face the statement could probably be read that way. But it could also be read in this way, your Honour, that given that Mr Quinn had assured Mr McNeill that there would be no move from Moorabbin to Broadmeadows he made a proposal and Mr Quinn agreed with it, not necessarily that he explained to Mr Quinn that what he was seeking was an industrial guarantee. He might not necessarily have said that. What he might mean by that is that he might mean that he made a proposal and Mr Quinn agreed with it and Mr McNeill thought that he was agreeing with it because of the assurance that he'd given.
PN33
Your Honour, that's the evidentiary contest that will be produced if this material is allowed into evidence and that's the only possible probative value of this evidence in my submission and can I make a submission to you about the level of probative value that you might draw from that anyway and that is that, your Honour, all you will have if this evidence goes in is a difference in the opinion of Mr Quinn about what was being agreed and the opinion of Mr McNeill about what was being agreed. Your Honour, in my submission that just doesn't get you very far anyway. Your Honour, the respondent in its outline of submissions takes you to the decision of Commissioner Lewin in the GSL Custodial Services case.
PN34
THE SENIOR DEPUTY PRESIDENT: Yes.
PN35
MR REDFORD: And I have a copy of that if your Honour doesn't.
PN36
THE SENIOR DEPUTY PRESIDENT: No, I don't. Thank you.
PN37
MR REDFORD: And the respondent takes you to paragraph 64, your Honour.
PN38
THE SENIOR DEPUTY PRESIDENT: Yes.
PN39
MR REDFORD: Where Commissioner Lewin says that:
PN40
It is also possible that the agreement itself represents a paradoxical outcome of the negotiations between the parties. By this ...(reads)... they now contend for.
PN41
That's the respondent's submission in this case, your Honour. If Mr Quinn's evidence goes in that's where you'll be in my submission. You'll simply be in exactly that place where Mr McNeill and Mr Quinn's individual recollection of what they were intending by the insertion of this clause is what they now contend for. Given the prejudice to the applicant by allowing this evidence to go in and the very low probative value in my submission of the evidence, in my submission, your Honour, you should exercise your discretion not to allow it.
PN42
THE SENIOR DEPUTY PRESIDENT: You say the factual position is that each party had a different view of how the clause operated in respect to this set of circumstances and that's all that would arise out of the evidence?
PN43
MR REDFORD: I suspect, your Honour, that what will emerge from the evidence of Mr McNeill and the evidence of Ms Giogha is that the parties may have had a different idea in their own minds about what they intended by the insertion of this clause. But the evidence isn't in yet, your Honour, so I'm anticipating what it will be. But it appears from the statements that have been filed that that is the likely position and Mr Quinn's evidence takes you no further than that. It takes you no further than Ms Giogha's evidence will take you. It will take you into exactly the place that Commissioner Lewin was dealing with in GSL, your Honour.
PN44
THE SENIOR DEPUTY PRESIDENT: So are you conceding that Mr Quinn had a different view of the intent of the provision than Mr McNeill, that reflected in his statement?
PN45
MR REDFORD: That's clearly what his evidence will be, your Honour.
PN46
THE SENIOR DEPUTY PRESIDENT: Will you be contesting that proposition?
PN47
MR REDFORD: What I'll make out of Mr McNeill's evidence I think, your Honour, is simply that his explanation as to what was in his mind makes industrial sense, but I don't think, your Honour, that I can go further than that and say that you should resolve the evidentiary contest between Mr McNeill and Ms Giogha and Mr Quinn for that matter in favour of one party or another.
PN48
THE SENIOR DEPUTY PRESIDENT: Yes, very well. Mr Yeatman.
PN49
MR YEATMAN: Your Honour, the respondent is not minded to spend an undue amount of time in relation to this application and in many respects is happy to concede the points made by my friend and really the respondent's situation that notwithstanding that I guess that your Honour can conduct this arbitration in any way that you see fit, the respondent I think is entitled to fear that if evidence is led in-chief by the applicant and are of quite specific assertions and they are not responded to you may infer that there is a reason why the respondent chose not to respond to those in that it may have been damaging to its case.
PN50
So the respondent is happy to concede that paragraphs of the proposed statement of Michael Quinn be thrown out as being irrelevant or duplicative in terms of early paragraphs or even the respondent is happy to dispense with the evidence of Mr Quinn altogether if your Honour is of the view that it merely responds to the assertions as there being a dispute as to facts, which my friend has alluded to, which you have to ultimately decide at the end of the day and it's not a case of those assertions made by Mr McNeill not being responded to for a reason other than to do so may be detrimental to the respondent's case.
PN51
So just quickly in relation to that, if as my friend has asserted that paragraph 30 of Mr McNeill's statement is - and I don't mean any offence, but could have been worded better or could have been worded differently, then I think if that is the case Mr Quinn really does need to get the opportunity to respond to that if there is to be a contest as to the meaning of Mr McNeill's statement, but as I said, is happy to dispense with his evidence altogether and this application if the Commission is happy to accept that there is a contest or an opposition on that.
PN52
The other thing is in terms of prejudice to the applicant, the respondent thinks that would be a fair and reasonable argument and
the time they've had available in the circumstances of the last 48 hours were this evidence-in-chief coming so late, but this is
evidence in response and the applicant had the opportunity to call
Mr Jardine and decided against it, pretty much probably for the same reasons that we originally sought not to call Mr Quinn in that
it was logistically difficult
and - - -
PN53
THE SENIOR DEPUTY PRESIDENT: There are degrees of logistical difficulty it appears.
PN54
MR YEATMAN: Certainly does. One being sort of more time than distance I think. I accept the Thai jungle is probably a lot harder
than central Mumbai. But it is evidence in response so it can't really be said to come as a surprise to the applicants and it really
boils down to those denials to the specific assertions made by Mr McNeill. So that's really the respondent's position and don't
wish to push any further except to say that if evidence needs to go on the record as to
Mr Quinn's opposition to those assertions in paragraphs I think 28, 29, 30, then we continue to press for the statement to be - leave
to be given for the statement to be filed and served, however amended, if you wish to strike out any paragraphs, otherwise we'll
just accept your decision on that.
PN55
THE SENIOR DEPUTY PRESIDENT: Yes, very well. Mr Redford.
PN56
MR REDFORD: Your Honour, perhaps the most practical suggestion I can make is that perhaps Mr McNeill should give his evidence and then if there is any problem - - -
PN57
THE SENIOR DEPUTY PRESIDENT: I was inclined to take that course,
Mr Redford, essentially not to admit the statement at this time but reserve leave for you, Mr Yeatman, to press the application once
we know precisely what
Mr McNeill's evidence is. Once we know that either without any qualification or with suitable concessions by the applicant, for example,
that they won't seek to argue that inferences be drawn against the respondent for failure to respond to certain matters we may well
be able to deal with the matter without bothering
Mr Quinn and without accepting his evidence. So I think I'll take that course of allowing you leave to press the point again, Mr
Yeatman, if you wish, having heard Mr McNeill to introduce that statement.
PN58
MR YEATMAN: The respondent's more than happy with that, your Honour.
PN59
THE SENIOR DEPUTY PRESIDENT: Very well.
PN60
MR REDFORD: If your Honour pleases, I call Mr McNeill.
PN61
THE SENIOR DEPUTY PRESIDENT: Thank you. What's the position between the parties as to other witnesses that there be an exclusion order whilst evidence is taken?
PN62
MR REDFORD: Yes, that's my position, your Honour.
PN63
THE SENIOR DEPUTY PRESIDENT: Mr Yeatman, do you have any - - -
PN64
MR YEATMAN: Your Honour, I've prepared my witnesses on that basis.
THE SENIOR DEPUTY PRESIDENT: Yes, very well. Thank you.
<PETER BERNARD MCNEILL, SWORN [2.37PM]
THE SENIOR DEPUTY PRESIDENT: Please take a seat, Mr McNeill. I'm going to interrupt you for a moment. It's a matter of housekeeping.
EXHIBIT #LHMU1 APPLICANT'S OUTLINE OF SUBMISSIONS
EXHIBIT #UNIBIC1 RESPONDENT'S OUTLINE OF SUBMISSIONS
THE SENIOR DEPUTY PRESIDENT: And then I can proceed from there. Yes, Mr Redford.
<EXAMINATION-IN-CHIEF BY MR REDFORD [2.38PM]
PN68
MR REDFORD: Mr McNeill, can you just state your name, address and occupation for the record?---Peter Bernard McNeill, (address supplied) and I'm the lead organiser for manufacturing for the Liquor, Hospitality and Miscellaneous Unit.
PN69
And have you given a witness statement in these proceedings?---Yes, I have.
PN70
I'm sorry, has one been filed on your behalf?---Yes, I have.
PN71
And have you had an opportunity to read that statement?---Yes, I have.
PN72
And is that statement true and correct?---It is.
PN73
THE SENIOR DEPUTY PRESIDENT: Do you have that statement in front of you, Mr O'Neill?---No, I don't, your Honour.
PN74
Sorry, Mr McNeill. I'm suffering from my long hearing in the Feltex matter with Ms O'Neill.
PN75
MR REDFORD: I tender that statement, your Honour.
THE SENIOR DEPUTY PRESIDENT: Yes, very well.
EXHIBIT #LHMU2 STATEMENT OF MR MCNEILL CONSISTING OF 34 PARAGRAPHS, DATED 07/03/2007
PN77
MR REDFORD: Mr McNeill, have you ever driven from the Unibic factory in Moorabbin to the Unibic factory in Broadmeadows?---Yes, I have.
**** PETER BERNARD MCNEILL XN MR REDFORD
PN78
And how long does it take?---Approximately an hour but during the day it wasn't at peak periods at all.
PN79
Have you had an opportunity to read a statement that was filed in these proceedings by Ms Giogha?---Yes, I did but I must say it was very late last night when I actually did get a change to read it.
PN80
All right. Well, to refresh your memory in her statement Ms Giogha says this:
PN81
In discussion with the respondent's management in which I was involved it was agreed that if technology enabled the respondent to increase its profitability by reducing its workforce it would only be fair for the respondent to share with the displaced employees by way of improved severance payments some of the additional profit which might be earned by plant or equipment which took their jobs.
PN82
Do you remember that statement?---In the context of that statement it was in relation to - and I think I need to explain that in the context of that that we were discussing the enterprise agreement about the two sites. So the concern was that the Moorabbin site may close so in saying that, that was talking about the technological change and that the company would not be moving that premises but if they were it would be a technological change and they would - the company would benefit by new technology, so the redundancy which was the technological change redundancy would be given to those employees.
PN83
Yes. There's also a statement been filed in these proceedings by Mr Chandler. Have you had an opportunity to see that?---Yes, I have.
PN84
And Mr Chandler says in his statement:
PN85
I recall that by the time the respondent's 2004 collective agreement was being negotiated there was no real concern amongst employees at the Moorabbin factory, myself included, about being relocated to North Coburg.
PN86
Have you ever spoken to Mr Chandler about the potential for the Moorabbin plant to relocate to North Coburg?---No.
PN87
Have you spoken to Mr Chandler about the potential for the Moorabbin plant to relocate to Broadmeadows?---Only in recent times.
**** PETER BERNARD MCNEILL XN MR REDFORD
PN88
And had you had any discussion with Mr Chandler about the prospect of Moorabbin moving to Broadmeadows at around the time of the 2004 collective agreement negotiations?---No, I haven't.
PN89
Now, you've been to the new Unibic plant at Broadmeadows, haven't you?---Yes, I have.
PN90
And you've also had a long history with the Erica site in Moorabbin and you in your statement talk about your experience in the baking industry generally, don't you?---Yes, I do.
PN91
And that your experience spans some decades?---That's correct.
PN92
In your view what impact will the move of production from Moorabbin to Broadmeadows have, if any, on the size of the labour force currently used by the respondent to make vol au vents and pavlova?---Well, just having a look at both sides, I mean blind Freddy would see that the Erica site is an antiquated site and the new site is state of the art. In terms of pastry it's state of the art in the technology that actually goes into that place and for the same amount of volume I would see that there is no way known you would use the same amount of people if you were using the same amount of volume going out of there.
PN93
Yes. Mr McNeill, Mr Yeatman is going to ask you a few questions so if you could stay there?---Okay.
PN94
THE SENIOR DEPUTY PRESIDENT: Just before he does, Mr Redford, do you want to seek any clarification on paragraphs 29 and 30 of Mr McNeill's statement? I mean I think the issues really are what were the concerns raised by Mr McNeill with Mr Quinn in paragraph 29 and how are they described and what was in specific terms in terms of paragraph 30 the proposal put by Mr Quinn.
PN95
MR REDFORD: I'll do that on your Honour's prompt. I had a strong suspicion Mr Yeatman might ask him about those paragraphs, your Honour, but I'll do it on your prompt.
PN96
THE SENIOR DEPUTY PRESIDENT: Yes.
PN97
MR REDFORD: Mr McNeill, can I take you to your witness statement?---Yes.
**** PETER BERNARD MCNEILL XN MR REDFORD
PN98
And to paragraph 28 of that statement?---Yes.
PN99
Can you see there at paragraph 28 your evidence is that at Moorabbin the key issue members were concerned about were the rumours that the Moorabbin factory may be shut down and the operations moved to a site owned by the company in Broadmeadows and that that was the key issue members were concerned about? Now, the question I want to ask you is in the negotiations you had with the company did you say to the company that the key issue that members were concerned about were the rumours at the Moorabbin factory that it may move to Broadmeadows?---I would have said that but also the delegate from the Moorabbin site was the key person who was also in those negotiations, Bob Jardine, and that was the key issue from the Moorabbin site was that they needed to get assurances that it wasn't going to close down and that was their key thing.
PN100
Yes?---They weren't - sorry to expand, but they weren't interested in the money side of it. They wanted the security of employment.
PN101
And that's what you told the company?---Yes.
PN102
And you then say in your evidence that in response to you raising those concerns Mr Quinn said that he assured you that there was no intention to move the Moorabbin operation to Broadmeadows, is that right?---That's correct. He said to me and to the others that were there, that they had no intention of moving it because the cost of moving it would mean that they would have to get all new machinery to actually - because the stuff that they had there was too old to move and they didn't know whether if they moved the stuff it would fall to pieces, so it would cost a substantial amount to try and do that. So it wasn't in their planning at that stage.
PN103
So can I take you to the second line of paragraph 29 where you say in particular he said, et cetera, is that what he said?---That's exactly, yes.
PN104
Now, in paragraph 30 you go on to explain that you made a proposal to Mr Quinn and the proposal is now clause 16 of the agreement?---That's correct and that was - without covering every word in a document that was what we actually did when we had the meetings down there. That was the assurance that the members down at that site had, that if there was a change and they were going to go to another site they would have to have new machinery which was a technological change which would mean - because the vast majority thought it was too far for them to travel over to Coburg let alone Broadmeadows, that that technological change would come in.
**** PETER BERNARD MCNEILL XN MR REDFORD
PN105
So what then do you mean by the sentence:
PN106
He agreed to this proposal on the basis that he assured me there would be no move to Broadmeadows.
PN107
?---Well, he assured me that they weren't closing the Erica operation because the Coburg site was expanding and the Moorabbin site they were going to keep down there because it was a separate business and it was a separate operation. One was a biscuit company and one was a pastry company.
PN108
Yes, okay. The agreement itself, was it negotiated over a series of meetings or was it one meeting?---No, it was probably - and look, I've tried to find files on how many meetings that I actually had, but I think it was probably four or five meetings and I'm not entirely sure, but I think it was about four or five.
PN109
You've given evidence that at some stage Mr Quinn assured you there'd be no move from Moorabbin to North Coburg, or Moorabbin to Broadmeadows. You've also given evidence that at some point you agreed upon clause 16. Did you agree upon clause 16 in the same meeting as the meeting in which Mr Quinn gave you that assurance?---Yes, I believe so.
PN110
So he gave you the assurance, you put the proposal, he agreed to it?---That's correct. It was on that very same day.
PN111
And I just want to be clear about what here you can remember, what he said when he agreed to the proposal?---Look, I probably can't remember what that was.
PN112
Yes. If your Honour pleases.
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Redford. Mr Yeatman.
<CROSS-EXAMINATION BY MR YEATMAN [2.51PM]
PN114
MR YEATMAN: Thank you, your Honour.
PN115
Mr McNeill, just to back track to a question that was asked to you at the very start of this, is it your evidence that it's never been the content of any discussion with Mr Chandler the prospect or possibility of relocating the Erica production lines at the Moorabbin plant to North Coburg?---Look, I suppose there wasn't discussion with him. I suppose when we had meetings at different times there may have been talks that we may have had about what was going on at the different sites because Mr Chandler is a very nice man and very friendly toward us and we would have discussions, but I don't specifically remember talking about bringing that across to there unless it could have been in the really early days when it was first acquired, the company.
**** PETER BERNARD MCNEILL XXN MR YEATMAN
PN116
That's okay. I'm not asking for a precise recollection but can we take it that you're saying that a move from Moorabbin to North Coburg as far as you're concerned was never contemplated or in discussions in which you were involved, either with Mr Chandler or anyone else?---We were in discussions with the company about when they acquired the company. I don't think that was in the process with the enterprise agreement.
PN117
No, no. But was there any time after Unibic took over Erica's, discussion about moving that plant at some time to North Coburg as a possibility?---There could have been discussions about that.
PN118
And also you said that - you made an assessment that for the same amount of volume you felt that at Broadmeadows that the respondent must use less people. On what basis do you base that assessment? I mean I'm aware of your witness statement where you identify a number of steps which you see won't be performed with the new technology, but to remove some steps to saying that they must use less people is a bit of a stretch I think. With your experience how do you make that assessment?---Well, I think because I have been around for a while and I've seen how bakeries and pastry companies and biscuit makers operate and I make that assumption on the time I've been around and gone through factories and seen how they operate.
PN119
But it's assumption, it's an assumption?---That's correct.
PN120
And you're aware that the respondent has asked all its employees to go to the new factory?---That's correct, I understand.
PN121
Getting back to that first point, can you tell me, please, how long you've been aware the respondent was looking for alternative premises for Moorabbin?---Well, I wasn't aware until the delegate had spoken to me saying that they were actually looking around in Moorabbin for other premises.
PN122
Can you put a year on that?---I would say early 2005, late 2004. I mean I think it was after the enterprise agreement.
PN123
Did you ever attend any site inspections at potential sites?---No.
PN124
In your experience at the Erica factory are the respondent's production requirements the same every day?---No, they have set orders that they have so production requirements are different nearly every day.
**** PETER BERNARD MCNEILL XXN MR YEATMAN
PN125
Would you agree that to meet production requirements casual workers are engaged on a daily basis through an employment agency and
while the number of employees employed by the respondent each day doesn't change the number of casual workers does change from day
to day or may change from day to day?
---Yes, I'd agree with that.
PN126
Do the respondent's employees and casuals workers engaged by the respondent generally only work in one position or are they capable of working numerous positions?---They're multi skilled so they do work in numerous positions.
PN127
And are you aware that there are informal but regularly occurring rules for the rotation of staff both between stations and between areas?---Yes.
PN128
Are you aware of that?---I would think that that was normal procedure.
PN129
Yes. In your statement in paragraphs 13, 14, 15, 16 and 17 you identify the steps which will no longer be performed or have to be performed in relation to the production of vol au vents when the production line moves to Broadmeadows. Are these steps usually performed by the respondent's employees or by casual workers?---It can be a mix. If they've got the casuals they will bring casuals in to do that.
PN130
And the same thing for paragraphs 22, 23, 24, the steps on the pav line, is your answer to that difference in the sense you say it's a mix and they usually bring casual workers in for that? I think the steps in relation to pavs is really just loading the racks, putting them in the ovens and taking them out again?---The casuals that are used there are virtually permanent casuals. They would work most of the time like on a pro rata basis but it's sort of the work that they do nearly all the time, so it's not as if they go to another job. They might pick up three days a week or they might pick up five days a week, depending on what the production work.
PN131
So regular?---Yes.
PN132
Regular casuals.
PN133
THE SENIOR DEPUTY PRESIDENT: Do they have any entitlement to redundancy payment whether under clause 15 or 16?---No, your Honour, because they're also agency casuals so.
**** PETER BERNARD MCNEILL XXN MR YEATMAN
PN134
MR YEATMAN: And just moving to some questions about the negotiation of the 2004 collective agreement, in paragraph 28 of your statement the meetings with members at the Moorabbin and the Coburg factory and I'm really only concerned with the Moorabbin meetings, do you recall roughly which month those meetings occurred?---I would think that they were held in around August, I would think, August/September, because that was when we got them together and had those and then we actually formed a log of claims through the delegates and we had three delegates, two from Coburg and one from Moorabbin and formed our log of claims.
PN135
And do you recall when that log of claims was delivered to or served on the respondent?---No, it wasn't served on the respondent. It was actually a list. The log of claims we have a good relationship with the company and our log of claims was written down in dot points and we actually raised those with the company and went through that process.
PN136
And do you know when the respondent acquired the land in Broadmeadows?---I suppose - no, I'm not too sure, but he either told us that he had actually bought the land in Broadmeadows and that might have been on or around the time we were negotiating the agreement, but then it was actually brought to our attention again because the local paper somehow got down to Erica' s in Moorabbin. Now, I don't know how it got down there but there was a picture of the vacant block of land and, you know, Unibic are going to build this fantastic factory and I haven't got it and of course the members we're in trouble, what's going on so.
PN137
Would it fit with your recollection that the purchase of the land was July 04?---It could well be.
PN138
And roughly you think about maybe September you served your dot points to the respondent. Do you recall when the first meeting was with the respondent?---No, I actually don't recall when it was.
PN139
In the context of the meetings when a first draft of an agreement was given to the respondent?---No, again I don't, sorry.
PN140
In clarifying paragraphs 28, 29 and 30 of your statement you said that the members at Moorabbin needed assurances that Moorabbin wasn't going to close down?---That's correct.
**** PETER BERNARD MCNEILL XXN MR YEATMAN
PN141
And so that would not shut down. Do you recall at what stage of negotiations that the proposed clause 16 was included in the agreement?---I would say at probably the last meeting that we had and whether we had four meetings or five meetings I'm not sure, but I think it was around about the second last or last meeting we had because that was the only sticking point. We had got the quantum agreed which wasn't a problem and it was just getting that and as I say, Michael had actually said what he had said and I actually was surprised that he had agreed to that and had no cap on the four weeks because it's unlike a company to actually not cap something.
PN142
Could that suggest to you perhaps that he thought it meant something different?
---No, I think that it meant that he was serious about not closing the Moorabbin site.
PN143
At any stage since the company took over the Moorabbin site in 1999 were you aware of looking for alternative sites in Moorabbin?---I knew that when they acquired the pavlova business that they had to be looking for something because it was pretty cramped at that stage.
PN144
And would that not have meant the closing of the Moorabbin site?---It would.
PN145
Your Honour, save for the steps that might be necessary, if Mr Quinn is not going to have the opportunity to just deny those assertions I've got nothing further.
PN146
THE SENIOR DEPUTY PRESIDENT: Yes, very well. Thank you.
Mr Redford, anything arising?
MR REDFORD: If your Honour pleases.
<RE-EXAMINATION BY MR REDFORD [3.04PM]
PN148
MR REDFORD: Mr McNeill, you've given evidence that around the time of 2004 negotiations you had discussions with members and with the company about the prospect of the move from Moorabbin to Broadmeadows?---That's correct.
PN149
And also had discussions with those same groups of people about the prospect of the move from Moorabbin to North Coburg?---Yes.
PN150
Did you at that time have discussions with Mr Chandler about the prospect of the move from Moorabbin to Broadmeadows?---Mr Chandler wasn't involved in the discussions so unless I was speaking to him as I was going from the factory, I don't think I had discussions with him.
**** PETER BERNARD MCNEILL RXN MR REDFORD
PN151
Well, do you recall ever having discussions with Mr Chandler about a move from Moorabbin to Broadmeadows?---Look, I may have but I actually don't recall having an actual discussion with him.
PN152
Thank you. If your Honour pleases.
THE SENIOR DEPUTY PRESIDENT: Yes, thank you for your evidence,
Mr McNeill.
<THE WITNESS WITHDREW [3.05PM]
PN154
THE SENIOR DEPUTY PRESIDENT: That's all your evidence, Mr Redford?
PN155
MR REDFORD: Yes, it is, your Honour.
PN156
THE SENIOR DEPUTY PRESIDENT: Yes, okay. Mr Yeatman, how do you wish to proceed in terms of order of evidence and there is the issue of how you want to proceed in respect of Mr Quinn having heard that evidence?
PN157
MR YEATMAN: Well, I guess it remains my position, your Honour, that my instructions are that Mr Quinn denies making - giving assurances in those terms or of that nature and largely on the basis of the evidence which is in the other statements that pretty much since 1999 the respondent was looking at alternative venues for the Moorabbin factory whether they were in the Moorabbin area, in North Coburg and certainly I don't dispute that it wasn't probably until after the acquisition of the Broadmeadows land and probably even after the EBA was agreed that was even discussion about moving to Broadmeadows. But Mr Quinn's position will be that it was always the intention to close the Moorabbin factory and therefore he will deny giving assurance against closure of the factory.
PN158
THE SENIOR DEPUTY PRESIDENT: Yes.
PN159
MR YEATMAN: So as I said, it remains my position, your Honour, if you are prepared to accept that that evidence is contested and don't need to have that formally, evidence formally given by Mr Quinn, we're happy not to pursue the point.
PN160
THE SENIOR DEPUTY PRESIDENT: Yes, very well. Mr Redford, in relation to that I guess it's a question of whether it is accepted that Mr Quinn has a different recollection of those matters, that he denies I think on the key point giving assurances there would be no move of the Moorabbin operation to Broadmeadows and denies also agreeing to pay higher redundancy payments in the event that such an event did occur, what's your position in relation to that?
PN161
MR REDFORD: Your Honour, well, I renew my objection to Mr Quinn's evidence being admitted. Can I say firstly the question as to whether or not the respondent was thinking of moving Moorabbin from 1999 and the question of whether Mr McNeill knew about that or when he found out is in my submission neither here nor there.
PN162
THE SENIOR DEPUTY PRESIDENT: Well, the essential issues, the conflict in the evidence seem to be whether or not there was an assurance
given by Quinn to McNeill that there was no intention of moving the Moorabbin operation to Broadmeadows, number 1, and secondly,
whether Mr Quinn agreed with
Mr McNeill to pay the higher redundancy payments in the event that such a move did occur. They seem to be the essential relevant
factual matters in contest arising out of the statements of Quinn and McNeill.
PN163
MR REDFORD: Yes, and your Honour, if that evidence comes in I really need to put it to Mr Quinn that that's not what Mr McNeill says.
PN164
THE SENIOR DEPUTY PRESIDENT: Yes. And it may be the outcome of all that is that there are different recollections that may raise an issue of whether a finding is required as to what was the more probable account of events or whether it was a matter of people having different understandings of the same situation.
PN165
MR REDFORD: Indeed, your Honour. Not that in my submission it really helps you very much anyway because in my submission it's your job to construe the terms of this agreement objectively.
PN166
THE SENIOR DEPUTY PRESIDENT: Yes.
PN167
MR REDFORD: In an industrial context but the opinion of the parties as to what they thought it meant is extremely peripheral to that task, your Honour, and I return to my original point. I am prejudiced. I am prejudiced if this evidence comes because I didn't have an opportunity to call Mr Jardine and I haven't had an opportunity to get proper instructions about what Mr Quinn says. So I renew my objection to the evidence coming in but if it comes in I need to cross-examine him, your Honour.
PN168
THE SENIOR DEPUTY PRESIDENT: Yes. Well, that can be done by telephone as I understand it. Yes. Mr Yeatman, anything further on that?
PN169
MR YEATMAN: Only just that the respondent submits that your summary of what the issues are arising from those paragraphs is correct.
It's whether
Mr Quinn made those statements and what his intention was in terms of the section 16, clause 16 redundancy and it is the respondent's view that Mr Quinn's evidence on this simply is supported already by the evidence
of think Barnes, Giogha and Chandler in that - the respondent will say in submissions it must be more likely than not that Mr Quinn
wouldn't give that assurance because it was always the intention of the business, known to the business that they would be closing
the Moorabbin factory as soon as an alternative premises was found and I think the statements disclose that some effort was made
to find alternative premises.
PN170
THE SENIOR DEPUTY PRESIDENT: Yes.
PN171
MR YEATMAN: And again, the statements particularly of Toni Giogha go to what they understood as a management group the clause was
intended to achieve and so save for the contest and the opportunity for my friend to cross-examine
Mr Quinn, I'm not sure that it really takes us any further.
PN172
THE SENIOR DEPUTY PRESIDENT: Yes, very well. Well, at the moment what I'll do is not admit the statement of Mr Quinn. If after hearing all the evidence and submissions as to the evidence I see any need to do that and investigate means of hearing from Mr Jardine I'll do that at the time. But my current disposition is it may well not be necessary so I will hear the evidence as a whole and the submissions before finally determining the matter. If it appears to me essential that we hear from Mr Quinn I'll make that decision at that time. If not we'll do without his evidence.
PN173
What I'll do is ask my associate perhaps after we swear the next witness to contact Mr Quinn and indicate to him that he's not required to give evidence and he should presume that he won't be. If that changes we'll deal with it at the time.
PN174
MR YEATMAN: Thank you, your Honour.
PN175
MR REDFORD: If your Honour pleases.
PN176
THE SENIOR DEPUTY PRESIDENT: Did you wish to call Ms Giogha first or are you content to go in some other order? I understood she had an availability issue.
MR YEATMAN: Not so much an availability issue, your Honour. If my friend doesn't mind I would like to call Ms Giogha first. She's on annual leave at the moment and I'd just like to get her out of the way.
<TONY GIOGHA, SWORN [3.14PM]
<EXAMINATION-IN-CHIEF BY MR YEATMAN
PN178
THE SENIOR DEPUTY PRESIDENT: Please take a seat, Mr Giogha. There appears to be no justice, Mr Quinn is working and he's in India and you're on leave and you're stuck in here?---That's right.
PN179
Yes, go ahead, Mr Yeatman.
PN180
MR YEATMAN: Ms Giogha, have you made a statement in this proceeding?
---Yes, I have.
PN181
And is that your statement?---Yes, it is.
PN182
Have you read it and is it true and correct?---I have read it and it's true and correct.
I tender that statement, your Honour.
EXHIBIT #UNIBIC2 STATEMENT OF MS GIOGHA OF 23 PARAGRAPHS, DATED 07/03/2007
PN184
MR YEATMAN: Thank you.
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Redford.
<CROSS-EXAMINATION BY MR REDFORD [3.15PM]
PN186
MR REDFORD: Ms Giogha, you discuss in your evidence the fluctuating staff needs at Moorabbin, don't you?---Yes, I do.
PN187
And what you're talking about in your evidence is the fluctuating requirements for agency casual staff?---Yes.
PN188
But you're not actually responsible for making decisions about the number of casual staff required on any given day, are you?---No, no, I'm not.
PN189
That's really Mr Chandler's job?---That's correct.
PN190
So in relation to the number of staff that might be required at any given time at Moorabbin, you don't really know anything about it, do you?---About, sorry?
PN191
About the number of staff that might be required on any given day in Moorabbin?
---No.
**** TONY GIOGHA XXN MR REDFORD
PN192
And that would be the same when production moves to Broadmeadows, won't it, again someone else will make the decisions about how many staff are required, that's right, isn't it?---That's right. It depends on production.
PN193
Sure. You've got your statement there, haven't you?---Yes, I have.
PN194
Can I take you to paragraph 10 of your statement?---Yes.
PN195
There in paragraph 10 of your statement you say that the closure of the Moorabbin factory and the relocation of the production to Broadmeadows won't result in any reduction in the company's labour force?---Yes.
PN196
Can I take you back to paragraph 8 of your statement where you say in the second line that the result of some people deciding not to move to Broadmeadows will create a temporary problem for the company's permanent labour force. That's your evidence there, isn't it?---Yes, it is.
PN197
And what you mean is that at least temporarily the labour force that you'll have available at Moorabbin - I withdraw that. The labour force that you will have available at Broadmeadows will be less than what you had available at Moorabbin to do the production?---What I'm saying here is our permanent people, not our agency people.
PN198
Yes?---So our permanent will remain the same but our agency is more that what fluctuates.
PN199
Indeed. But do you there, Ms Giogha, say that you've got a temporary problem on the horizon in relation to your permanent labour force, a temporary problem in relation to your permanent labour force, don't you?---Our permanents, yes.
PN200
And what you mean is temporarily you won't have enough permanents, temporarily?---Correct, yes, we won't.
PN201
The problem is you won't have enough, that in other words the number of permanent employees you have available at Moorabbin will have been reduced when they move to Broadmeadows. That's correct, isn't it?---They will be reduced in that they're not accepting the transfer.
PN202
Yes, they will be reduced?---Yes.
**** TONY GIOGHA XXN MR REDFORD
PN203
And so can I suggest to you that in some ways paragraph 10 of your statement is not quite right, is it, that in actual fact the closure of the Moorabbin factory will result in a reduction in the labour force because at least temporarily you won't have enough permanents at Broadmeadows, that is right?---We will not have enough because of the responses that they've given me, yes.
PN204
Now, can I take you then to paragraph 11 of your statement where you say that -
PN205
The introduction of some new plant and equipment at Broadmeadows will not cause or contribute to any reduction in the company's required labour force.
PN206
You may not be aware of this, but that's not what Mr Barnes says. Mr Barnes says that it is likely that there will be an effect on
the casual hours when you move from Moorabbin to Broadmeadows. What I’m suggesting to you is that in fact paragraph 11 is
not quite right either, that when the new plant and equipment is introduced at Broadmeadows there will be a reduction in the labour
force
because - - -
PN207
MR YEATMAN: I'm sorry, your Honour, could we just identify where in
Mr Barnes statement he says that?
PN208
THE SENIOR DEPUTY PRESIDENT: Yes.
PN209
MR REDFORD: Just bear with me, Ms Giogha. I don't have a clean copy of this statement, I'm sorry, your Honour.
PN210
THE SENIOR DEPUTY PRESIDENT: Paragraph 11, is it?
PN211
MR REDFORD: Yes. Perhaps I'll just read it out if that's all right.
PN212
THE SENIOR DEPUTY PRESIDENT: Yes, if you do - I think what I'll do is put it before you, Ms Giogha. Multi skilling has extended to the Commission.
PN213
MR REDFORD: Ms Giogha, we're at paragraph 11 of that statement of
Mr Barnes?---Yes.
PN214
And this paragraph goes over the page. But can you see there where Mr Barnes says in his statement -
**** TONY GIOGHA XXN MR REDFORD
PN215
The new conveyor system proposed for the respondent's Broadmeadows factory is likely to affect the number of hours worked by casual employees from time to time at Broadmeadows.
PN216
?---Mm.
PN217
Now, we've not heard evidence from Mr Barnes yet but can I suggest to you that what Mr Barnes probably means by that is the likely effect is that their hours will reduce. That's what he means by that, isn't it?---What I don't understand is are we talking about our permanents or are we talking about our agency casuals?
PN218
No, we're talking about your casuals.
PN219
MR YEATMAN: I'm just not sure Ms Giogha can clarify what Mr Barnes means.
PN220
THE SENIOR DEPUTY PRESIDENT: Yes. Ms Giogha, there are two classes of casuals, are there, those directly employed by the company and agency casuals?---Yes, that's correct.
PN221
And you're uncertain as to what Mr Barnes is referring to?---Well, the way I read it I believe that he means casual employees as being our agency casuals.
PN222
That's as your understanding?---I'm not sure of our permanent casuals where they actually work within the plant.
PN223
Well, proceed on, Mr Redford, but be aware Ms Giogha is obviously not totally familiar with Mr Barnes' mind.
PN224
MR REDFORD: Indeed and I'm sorry, I'm being a bit unfair on you trying to ask you to predict what he was thinking but I’m content with that. Your guess is that what he means is the agency casuals?---Yes.
PN225
And their hours will be reduced?---Yes.
PN226
Nevertheless, can I suggest to you that that amounts to a reduction in the company labour force?---It can but they're not our labour force.
PN227
They're not your labour force?---No.
**** TONY GIOGHA XXN MR REDFORD
PN228
All right. Hypothetically, if the agency casuals were part of the company's labour force used in the production of vol au vents and pavlovas then a reduction in their hours would amount to a reduction in the labour force, is that right?---Yes.
PN229
So if the agency casuals are part of the company's labour force then paragraph 11 of your statement is not quite right, is it?---But - yes, you're right.
PN230
If?---If.
PN231
Can I take you to paragraph 15 of your statement?---Yes.
PN232
Now, I just want to pick you up on something here. What you say in paragraph 15 is the following was known and understood by the respondent and the union, the respondent being the company and the union. But you don't really know what was known and understood by the union, do you?---What seemed to be understood at the time.
PN233
Guessed was understood, what you predict was understood but you don't really know?---No.
PN234
You also in paragraph 15, Ms Giogha, that you guess or you think that the union knew that the idea of a move of production from Moorabbin to Coburg had been abandoned. You think the union knew that that idea was off?---Yes.
PN235
That the union knew that there would probably be a move from Moorabbin but ideally into a site in Moorabbin and that also that there would be a move from Coburg to Broadmeadows. You say that all of that should have been known. So can I suggest to you that given all of that it's entirely possible for someone to speculate and say to themselves, well, if they can't find a place for us in Moorabbin they might move us to Broadmeadows too. It's not unreasonable if somebody thought that?---They could speculate that but that wasn't discussed.
PN236
Sure. Now, can I take you to paragraph 21 of your statement, the final sentence of that paragraph says:
PN237
The new plant and equipment will not be reducing the size of the respondent's labour force or displacing any employee via technology or automation.
PN238
Now, just going back again to what we spoke about in relation to Mr Barnes' evidence, again if the agency casuals are part of the company's labour force then that statement is not quite right, is it?---No, but the statement wasn't made in relation to agency labour.
**** TONY GIOGHA XXN MR REDFORD
PN239
Sure. Can I take you back to paragraph 20 of your statement, you say here that if technology enabled the respondent to increase its profitability by reducing its workforce it would only be fair for the respondent to share with the displaced employees, the employees who lost their job, by way of improved severance payments some of the additional profit which might be earned by plant or equipment which took their jobs. And can I suggest to you that what you mean there is if my job is taken by a robot which can work twice as fast as I can and the company makes more money as a result but I lose my job, it's only fair that I should share in some of that profit?---Correct.
PN240
But can I put a hypothetical scenario to you, let's say I work at Moorabbin and let's say I've been working there for 20 years making vol au vents and I live around the corner and I can't travel to Broadmeadows, I can't do it, it's too far, I'm really happy that the company is going to move into this brand new plant in Broadmeadows and have some new technology at the plant, new ovens and so forth and I really hope the company is going to make lots of money out of it, but I'm going to lose my job anyway because I can't move. Aren't I in the same position as the person who's job's been taken by a robot?---No, I don't believe so.
PN241
Isn't it only fair that I share in the profits that the company is going to make?
---You've been invited to transfer.
PN242
I can't go?---I don't believe that travel should be a reason.
PN243
It's an hour or more?---We've people that work an hour or more away from where we are now.
PN244
With people that work an hour or more away they should share in the increased profits?---I don't believe so.
PN245
If your Honour pleases.
PN246
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Anything arising,
Mr Yeatman?
MR YEATMAN: Yes, your Honour.
<RE-EXAMINATION BY MR YEATMAN [3.30PM]
PN248
MR YEATMAN: Ms Giogha, Mr Redford asked you a number of permanents at Moorabbin will be reduced when you move to Broadmeadows and this would create a temporary problem for the respondent. You're the personnel officer, what are you doing about that problem?---Doing for the people at Moorabbin?
**** TONY GIOGHA RXN MR YEATMAN
PN249
No, doing about the fact that not all the permanents at Moorabbin will be transferring to Broadmeadows?---Well, initially we'll have to see how many and then we'll have to start a recruitment campaign.
PN250
So you'll hire more permanent employees?---Of course.
PN251
Yes. Are those employees who have indicated they did not want to go to Broadmeadows, if they agreed to go to Broadmeadows would there be jobs for them?---Certainly.
PN252
All of them?---Yes.
PN253
Mr Redford took you to paragraph 15 of your statement and said did you know what the union knew at that time because you've said the following was known and understood by the respondent and the union. How did you form that view, what made you think the union knew those things?---Well, the agreement, the signing of the agreement.
PN254
But did you attend meetings?---Certainly, yes.
PN255
Where that was discussed?---Yes, it was all discussed at the meetings.
PN256
You personally experienced union members indicate knowledge of those things?
---As far as I can remember.
PN257
In relation to paragraph 20 where you were asked about it was agreed that if technology enabled the respondent to increase its profitability by reducing its workforce, can you just tell us in discussion with the respondent's management, that is I guess the management team within whom you work, was it ever discussed that the company, the respondent would pay extra severance payments simply because it closed the Moorabbin plant?---Simply because it closed, no.
PN258
Clause 16, severance simply because it closed?---Not because it closed.
PN259
What extra was required to get the extra severance payment?---The extra severance payment was only if new technology had been introduced and take the place of the jobs that people were doing at Moorabbin.
PN260
Nothing further. I think my friend wants to ask a question based on - - -
**** TONY GIOGHA RXN MR YEATMAN
PN261
MR REDFORD: No.
THE SENIOR DEPUTY PRESIDENT: Very well. Thank you for your evidence, Ms Giogha. Before I excuse you I'll have my associate recover
Mr Barnes' statement from you and then you're excused. You can resume your holiday?---Thank you.
<THE WITNESS WITHDREW [3.33PM]
PN263
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Yeatman.
PN264
MR YEATMAN: If I could call Chris Chandler, please.
THE SENIOR DEPUTY PRESIDENT: Yes, thank you.
<CHRISTOPHER GORDON CHANDLER, SWORN [3.34PM]
<EXAMINATION-IN-CHIEF BY MR YEATMAN
PN266
THE SENIOR DEPUTY PRESIDENT: Please take a seat, Mr Chandler. I'm going to resist the temptation of retaliating by making you wear
a silly hat?
---That's okay.
PN267
Yes, Mr Yeatman.
PN268
MR YEATMAN: Mr Chandler, have you made a statement in this proceeding?
---I have.
PN269
That statement that's just been handed to you, is that your statement?---That is my statement, yes. Yes, that is.
PN270
And have you read that statement and is it true and correct?---It is true and correct.
PN271
I would like to tender that statement, your Honour.
THE SENIOR DEPUTY PRESIDENT: Yes, very well.
EXHIBIT #UNIBIC3 STATEMENT OF MR CHANDLER OF 29 PARAGRAPHS
PN273
MR YEATMAN: Thank you. I have nothing further.
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Redford.
<CROSS-EXAMINATION BY MR REDFORD [3.36PM]
PN275
MR REDFORD: Mr Chandler, you're currently responsible for production at Moorabbin, aren't you?---Yes.
PN276
And you're the person who makes decisions about how many staff are required on a day to day basis?---Yes.
PN277
And you're the person who decides how many agency casuals are going to be required on any given day?---Yes.
PN278
Can I take you to your witness statement that was filed in this matter?---Yes.
PN279
And paragraph 11 of that statement?---Yes.
**** CHRISTOPHER GORDON CHANDLER XXN MR REDFORD
PN280
Now, paragraph 11 you say:
PN281
I recall that by the time the respondent's 2004 collective agreement was being negotiated there was no real concern amongst employees at the Moorabbin including myself about being relocated to North Coburg.
PN282
?---Yes, yes.
PN283
You don't know though, do you, whether other people were concerned about a possible move from Moorabbin to Broadmeadows, do you?---I can't say for sure, but yes, nothing was brought to my attention.
PN284
Yes. Now, I just wanted to ask you some things about the vol au vents, the vol au vent production?---Yes.
PN285
And in particular focus on the trays. Now, the tray used in production of vol au vents at Moorabbin starts its journey by being put underneath the belt so that it can move along and take product from the cutting machine?---Yes.
PN286
And then the tray is taken from there and put onto a trolley?---Correct.
PN287
And then the trolley is taken to the oven?---Correct.
PN288
And then the tray is loaded into the oven?---Yes.
PN289
And then the tray is unloaded from the oven?---Yes.
PN290
And then the product is taken from the tray by a person, the product is taken by hand from the tray and put onto another conveyor belt?---No.
PN291
I knew I'd get one bit wrong?---It is the person that takes the tray out of the oven tips the tray onto the conveyor belt with the product on.
PN292
Indeed. So the tray is unloaded and then the product is tipped onto the belt?
---That's right.
PN293
Then the tray is wiped?---Yes.
PN294
Then the tray is put back onto the trolley?---Yes.
**** CHRISTOPHER GORDON CHANDLER XXN MR REDFORD
PN295
And the trolley is taken back to the beginning of - - - ?---Into the ....., to begin the cycle again.
PN296
Yes. And none of these parts of the process are going to be carried out at Broadmeadows?---No.
PN297
Now, in addition with respect to vol au vents, in addition, the person who stands towards the end of the cutting machine with a small roller rolling glaze onto the product is no longer required at Broadmeadows?---No.
PN298
And the reason for that is Broadmeadows has the ability in the machinery to spray the glaze onto the product?---Yes.
PN299
Now, turning then to pavlova, the thing about the pavlova when production moves from Moorabbin to Broadmeadows is the absence of the trolleys, isn't it?---Yes.
PN300
There's no need for a trolley to bake the goods?---No.
PN301
And there's no need to cart the product around on a trolley both in terms of before baking and after baking. There's no need for the cardboard fan, for the human fan, for the person with a piece of cardboard waving it above the product cooling it down?---No, because it will cool as it comes out of the oven.
PN302
Because of the new cooling thing?---Yes.
PN303
And the other improvement is that there's just much more space because not only is the warehouse bigger or the factory bigger, but you're not moving trolleys around everywhere in order to move around?---That's correct.
PN304
And it's true, isn't it, that you don't really know what impact that's going to have on production on the way in which you produce pavlovas when you start doing it at Broadmeadows, do you?---You mean I don't understand the - - -
PN305
Generally speaking you don't know what impact over your production process all that additional space will have?---What impact, as in having more room do you mean?
PN306
Yes?---Yes, look, it certainly will be more room.
**** CHRISTOPHER GORDON CHANDLER XXN MR REDFORD
PN307
You don't know what impact the time saved by not having to move trolleys around all the time will have on production, do you?---No.
PN308
In fact there's a number of aspects of the production of pavlova that you've just not yet worked out?---No, because of the bending and things like that, exactly.
PN309
Yes. I might just very quickly, if I could, just take you to a statement that's been filed in these proceedings by Mr Barnes and if you would just bear with me. I have a clean copy of his statement now, your Honour.
PN310
THE SENIOR DEPUTY PRESIDENT: Very well?---Thank you.
PN311
MR REDFORD: And can I take you paragraph 14, here Mr Barnes says that the new technology at Broadmeadows is, in his words:
PN312
unlikely to affect significantly the number of hours worked by casual employees.
PN313
Right. But you don't really know whether it will increase or decrease the number of casual hours, do you?---No.
PN314
And it's possible that they'll decrease?---It is possible.
PN315
It's likely that they'll decrease, isn't it?---No, because the - - -
PN316
No carting trolleys around?---But the throughput will be faster. There'll be more pavlovas coming out than there is currently so they'll be coming faster to them.
PN317
Yes. You just don't know how that's all going to work though, do you?---No.
PN318
So it's possible that the casual hours will reduce?---It is possible.
PN319
Yes. Can I just take you in Mr Barnes statement back to paragraph 11 of his statement?---Yes.
PN320
In paragraph 11 at the bottom of the page he says that -
PN321
The new technology at Broadmeadows is likely to affect the number of hours worked by casual staff.
**** CHRISTOPHER GORDON CHANDLER XXN MR REDFORD
PN322
?---This is for vol au vents?
PN323
I'm sorry, this is for vol au vents, yes?---Yes, yes.
PN324
And you can be a little bit more confident with your prediction here, can't you, because you know a bit better how vol au vents are going to work?---Yes.
PN325
And you know that you're going to reduce the number of casual staff you use now in production of vol au vents at Broadmeadows?---Yes.
PN326
Now, in your statement and I'm now back to your statement, at paragraph 29, you say that there will be no reduction of the respondent's required labour force as a result of the move to Broadmeadows?---Yes.
PN327
But that's not quite right, is it, because there will be a reduction in the labour force because as you've just said, particularly in relation to vol au vents, the number of casual hours will reduce?---The number of casual hours, yes.
PN328
So that statement that there'll be no reduction of the labour force isn't correct, is it?---Our labour force?
PN329
The respondent's required labour force?---No, that's right then.
PN330
Because there will be a reduction in the number of casuals required for vol au vents and there may well be a reduction in the number of casuals required for pavlovas?---Yes.
PN331
Now, of course you're aware that the company is hoping for increased production in relation to vol au vents and pavlovas?---Yes.
PN332
And all of that's speculative at this stage, isn't it?---Yes.
PN333
You hope it might happen, it might not. But the one thing that is sure, isn't it, is that if you stay at Moorabbin you can't increase production?---No.
PN334
Certainly not increase production at the level that you hope to?---No.
PN335
And one of the reasons for that is that there's not enough room?---Yes.
**** CHRISTOPHER GORDON CHANDLER XXN MR REDFORD
PN336
And the other reason for that is that the equipment just won't support it?---Yes.
PN337
Thanks, Mr Chairman, if your Honour pleases.
PN338
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Redford. Mr Yeatman.
MR YEATMAN: Thank you.
<RE-EXAMINATION BY MR YEATMAN [3.47PM]
PN340
MR YEATMAN: Mr Chandler, Mr Redford got you to acknowledge you're responsible for staffing at the Erica business, you would be responsible for staffing at Broadmeadows?---Sorry, I missed that?
PN341
You'll be responsible for staffing when you move to Broadmeadows?---Yes.
PN342
The allocation of people who shift?---Yes.
PN343
At this stage is it your expectation that you'll use any less people on shifts at Broadmeadows?---Maybe for the vol au vents.
PN344
And would that be less people or less hours more likely?---It would be less hours for those people.
PN345
And what will the number of hours on a shift depend on?---It will depend on the product we are making. If we're making the little 38 millimetre, the tiny little vol au vent, we'll certainly need more people or existing, around about the existing amount of people, we're not sure because we anticipate to run two vol au vent machines together to make the little 38 mil oyster case, so that will be faster through the oven so it will require more people to pack. The packing speed will be faster, but on the three larger sizes it will decrease.
PN346
Will there be any reduction in your need for permanent employees?---No.
PN347
You were asked did you know whether there was any concern about a potential move from Moorabbin to Broadmeadows at about the time the 2004 agreement was being negotiated and you said nothing was brought to your attention. If there was concerns within the factory would you ordinarily have heard of it?---Not necessarily.
**** CHRISTOPHER GORDON CHANDLER RXN MR YEATMAN
PN348
You said that you agreed with Mr Redford that you can't increase production at the Erica site, could you increase production by putting on extra shifts?---Yes.
PN349
Nothing further.
THE SENIOR DEPUTY PRESIDENT: Yes, thank you for your evidence,
Mr Chandler, you're excused?---Thank you.
<THE WITNESS WITHDREW [3.49PM]
PN351
THE SENIOR DEPUTY PRESIDENT: That leaves Mr Barnes.
MR YEATMAN: Lucky last.
<ALLAN MARCUS BARNES, SWORN [3.50PM]
<EXAMINATION-IN-CHIEF BY MR YEATMAN
PN353
THE SENIOR DEPUTY PRESIDENT: Please take a seat, Mr Barnes. Yes,
Mr Yeatman.
PN354
MR YEATMAN: Mr Barnes, have you made a statement in this proceeding?
---Sorry?
PN355
Have you made a statement?---I have indeed, yes.
PN356
Would you have a look at that, is that your statement?---Yes, that is. That's correct, yes, it is.
PN357
Have you read that statement?---Yes, I have.
PN358
Is it true and correct?---Yes, it is.
I tender that statement, please, your Honour.
EXHIBIT #UNIBIC4 STATEMENT OF MR BARNES OF 23 PARAGRAPHS WITH FOUR ATTACHMENTS
PN360
MR YEATMAN: Thank you.
THE SENIOR DEPUTY PRESIDENT: Mr Redford.
<CROSS-EXAMINATION BY MR REDFORD [3.52PM]
PN362
MR REDFORD: Mr Barnes, I just want to ask you some questions about the production of vol au vents at Moorabbin currently and in
particular focus on the trays. Now, the trays that are used in the production process of vol au vents at Moorabbin start the journey
by being put under the cutting machine so that they come up and take product as it comes off the machine. That's right, isn't it?
---That's correct.
PN363
And then from there the trays are taken and loaded onto a trolley?---That's correct.
PN364
And then the trolley is taken to the oven area?---Correct.
PN365
And then the tray is unloaded from the trolley and loaded into the oven?
---Correct.
**** ALLAN MARCUS BARNES XXN MR REDFORD
PN366
And then the tray is unloaded from the oven?---Correct.
PN367
And then the product is shaken from the tray onto a conveyor belt by a person?
---Correct.
PN368
Then the tray is wiped?---Yes.
PN369
And then the tray is put back on the trolley and the trolley makes it way back to the start of the process?---That's correct.
PN370
And none of these parts of the process will occur at Broadmeadows, will they?
---That's correct.
PN371
Now, another part of the process in relation to your production of vol au vents at Moorabbin is that a person stands towards the end of the cutting machine and with a small roller brushes a syrup mix onto the product. That's right, isn't it?---That's correct.
PN372
And that's not going to occur at Broadmeadows either, is it?---There will be application of what you call a syrup mix but it will be not done with a paint roller.
PN373
And it won't be done by hand, will it?---Correct.
PN374
It's sprayed on automatically?---That's correct, yes.
PN375
Now, you have your statement there, don't you?---Yes, I do.
PN376
Can I take you to paragraph 11 of your statement?---Yes, I've got paragraph 11.
PN377
In paragraph 11 you say that because of the new equipment at Broadmeadows - I withdraw that. In paragraph 11 of your statement that -
PN378
The new equipment at Broadmeadows is likely to affect the number of hours worked by casual employees from time to time at Broadmeadows.
PN379
And what you mean by that is that the number of hours worked by casual employees from time to time at Broadmeadows will be reduced?---Yes, that's correct.
**** ALLAN MARCUS BARNES XXN MR REDFORD
PN380
And the reason for that is because parts of the process that we've just discussed that are currently carried out at Moorabbin won't be carried out at Broadmeadows. That's right, isn't it?---Correct.
PN381
Just moving to pavlova, in contrast to vol au vents where we're concerned with the trays, when you move production from Moorabbin
to Broadmeadows with respect to pavlova it's the trolleys that you won't need when you make that move, isn't it?
---That's correct.
PN382
And the thing is that you won't need to cart the product around on trolleys when you move to Broadmeadows, it's all by conveyor belt?---Yes, they will be transferred directly onto the belt.
PN383
And there is much more space around the production area created by the absence of the trolleys, isn't there?---At Broadmeadows?
PN384
Correct?---No, because it's a much bigger area.
PN385
Not having lots of trolleys standing with product on them, without product on them in the production area results in there being more space around the production area, doesn't it?---If you were in the same area as we have it now that's correct, but if we move to a much larger area that issue is dissipated.
PN386
Well, when you move to Broadmeadows it's not dissipated, is it, it just disappears?---Well, we don't have trolleys.
PN387
You don't have them, yes?---Correct.
PN388
And you're not yet settled about how production of the pavlovas will exactly work at Broadmeadows, are you?---We have a plan in mind and as we went through today.
PN389
Sure?---So we described where we believed those functions would be placed and the operators would play those functions. So we do have a plan in mind but the test will really be when we actually set it up and run and work out whether should the person say on this site of the table or the other side when we get to the end, work spatially we'll put them out, so yes, we have a plan but then when we actually run we can work out the best way that those functions will be played.
**** ALLAN MARCUS BARNES XXN MR REDFORD
PN390
Yes. And a number of those issues relate to where staff will stand, what they'll do, what order it will be done in?---I think the tasks are defined. Exactly where they will stand in terms of making it as efficient as possible we will work out when we actually get the people on the line and do it. But we believe that because the tasks are essentially are unchanged we understand those but it's the spatial layout because the line instead of having the rack ovens it will be at the band oven, so yes, a different position.
PN391
Yes. Tasks are assigned except in relation to, for example, taking a trolley full of pavlova and putting it into an oven. I mean you don't need that any more, do you?---That's correct.
PN392
And at Moorabbin some time is spent moving trolleys of product into the oven, out of the oven and certainly I noticed out of the way when I want to get from A to B in that production area. Some time is spent by your staff moving those trolleys around in order to do those things, isn't it?---The primary task is to move trolleys in and out of the oven but clearly in that environment to make it as efficient, yes, sometimes you have to move a trolley to provide access, that is correct.
PN393
And you're not yet sure what impact that time saved will have on production at Broadmeadows, are you? You don't know?---Well, the production at - the rate limiting step at Moorabbin right now is the oven, it's basically that's the rate limiting step because everything hangs off that. We'll have a look at that when we move to Broadmeadows. We will need to produce that rate limiting step on a band oven so your question about how that will impact I guess we'll know as soon as - everything will revolve around what is the rate limiting step which we believe is still going to be the number of time it takes to cook it, cook a pavlova.
PN394
Yes. Look, just going back a step, I mean at the moment you spend a certain amount of time moving trolleys around at Moorabbin, you won't have to do that at Broadmeadows?---We moves those trolleys, yes, we do, so we can put product into the oven.
PN395
Well, let's just take this bit by bit. At Moorabbin you spend a certain amount of time moving trolleys around. You won't need to do that at Broadmeadows, that's correct, isn't it?---To put product into the oven, that is correct, yes.
PN396
Yes. And by not having to move trolleys around at Broadmeadows you will save time, the time it took to move those trolleys around at Moorabbin. That's right, isn't it?---That is correct, yes.
**** ALLAN MARCUS BARNES XXN MR REDFORD
PN397
And you're not yet sure how much time you'll save?---No.
PN398
Okay. Then can I suggest - well, perhaps I'll withdraw that. Can I take you to your witness statement where at paragraph 14 you say that in effect the new technology at Broadmeadows is unlikely to affect significantly the number of hours worked by casual employees. What that means is that you're not sure about whether the move from Moorabbin to Broadmeadows will affect the hours of the casual employees. You're not sure, are you?---The main driver for casual use now and at Broadmeadows will be to address our seasonal needs, but the main driver now is the product is very seasonal so we believe that seasonality will still be there. There's nothing you can do about that so we will have a core group of people to manage the volume of business for the majority of the months during the year and then we will certainly continue to use casuals to address the peak seasonal needs.
PN399
But there are aspects of the production process at Broadmeadows that you've not yet settled. You've conceded that in your evidence and you have also conceded that you will save time when you move to Broadmeadows but you don't know how much time and can I suggest to you that accordingly you don't know whether the casual hours with respect to the production of pavlovas will reduce, you don't know?---Reasonably we would expect as the volume grows it will increase and as it takes like now we wouldn't expect that there's going to be a significant - - -
PN400
Forget about volume. Forget about the possibility that volume might increase for a second. If volume doesn't increase, as it might not, then it's possible that the hours will reduce, you don't know?---My statement there says I don't believe it will significantly reduce. There'll still be an ongoing need.
PN401
You do say in your evidence though that the company's labour force will not reduce as a result of the move from Broadmeadows to Moorabbin,
don't you?
---We have asked everybody to come to Broadmeadows.
PN402
Your evidence is that the company's labour force will not reduce when you move from Moorabbin to Broadmeadows?---We have no requirement for less people.
PN403
But you have conceded in your evidence that it's likely that the casual hours will reduce, haven't you?---For pavlovas, I've said here there is - - -
PN404
No, with respect to vol au vents?---Okay, I'm sorry, I was still on pavlovas.
**** ALLAN MARCUS BARNES XXN MR REDFORD
PN405
No?---Back on the vol au vents?
PN406
I'm talking about vol au vents now?---I'm sorry.
PN407
If I take you to paragraph 11 of your statement it says that it's likely that the casual hours will reduce and paragraph 11 relates to vol au vents?---Okay, paragraph 11. Yes, and I'm saying it will not affect the number of continuing full time employees but it may affect the number of casuals.
PN408
If you could just bear with me a second, Mr Barnes?---Sure.
PN409
Can I take you to paragraph 17?---17.
PN410
The first sentence in paragraph 17 says this:
PN411
The respondent will not be reducing its labour force as a consequence of new plant and equipment.
PN412
Okay, that's your evidence?---That is correct.
PN413
Now, back in paragraph 11 you say that it's likely that the casual hours will reduce, don't you?---Correct.
PN414
Now, if the term labour force was to include the casual hours then the respondent's labour force is reducing, isn't it?---My understanding of labour force in this context - - -
PN415
Well, just hang on. You can quite simply answer that question. It's a hypothetical. If the term labour force as I am using it hypothetically, includes casuals then the labour force is reducing, isn't it?---As you use it, that is correct.
PN416
Now, you have given evidence and I won't take you to it but you have given evidence about your anticipated production growth and what you hope is that you will be able to increase production when you move to Broadmeadows, won't you?---Clearly the investment is made with a view to running the plant as often as we can in ordinary time, yes.
PN417
And that's why you've moved. You've moved in order to accommodate your hoped for increased production?---Yes, to grow the business, yes.
**** ALLAN MARCUS BARNES XXN MR REDFORD
PN418
Because it wouldn't have been possible for you to increase production in the way you want to if you had have stayed at Moorabbin, would it?---For that part of the business which is vols and pavs, that's correct.
PN419
Yes. Because you wouldn't have been able to increase production in the way you want to at that plant with that machinery. That's correct, isn't it?---That's correct.
PN420
Yes. If your Honour pleases.
THE SENIOR DEPUTY PRESIDENT: Thanks, Mr Redford. Mr Yeatman.
<RE-EXAMINATION BY MR YEATMAN [4.07PM]
PN422
MR YEATMAN: Thank you. Just quickly picking up on that point Mr Redford made, he said you wouldn’t be able to increase production the way you want to at Moorabbin, what did you understand by the meaning of in the way you want to, because surely you can increase production by adding more shifts?---Part of our business is to product efficiently so we're competitive in the market place. The way we want to as I said in an earlier statement is to run the product Monday to Friday in ordinary time. The only way we can increase production at Broadmeadows now is to go beyond ordinary time and to run shift work and also go into weekend work. Our business is really to do conversion at ordinary time and it's incumbent upon me in my role to do that. So yes, we cannot increase production the way we want to.
PN423
You've indicated that the move to Broadmeadows may result in less casual hours, a reduction in casual hours, does that necessarily
mean to you less people?
---Absolutely not.
PN424
Your knowledge of the process and the process currently at Moorabbin, does any worker who moves trays or trolleys currently, is that the only job they perform on any day?---No, that's not. We have a process of rotating people around the tasks within the volies and we have process to rotate people between volies and pavlova and the opportunities that present to us as we move to Broadmeadows in terms of expanding the skill set is to rotate those people not only between volies and pavs but also on the biscuit lines. Enormous opportunity presents for us to expand the skill set of our employees and present more interesting jobs for them by rotating them through all the lines. We can't do that at the moment because geographically the two sites are separated.
**** ALLAN MARCUS BARNES XXN MR REDFORD
PN425
And just for the record, when you move to Broadmeadows you will be taking trolleys, is that correct?---For pavlova?
PN426
Yes?---Yes, we will be.
PN427
Why is that?---Well, we need a contingency. We have to relocate from the Moorabbin facility and we haven't yet proven the Broadmeadows facility so we will continue with exactly the same equipment. We will take the current pavlova manufacturing equipment out of Moorabbin and install it at Broadmeadows and we'll run with that for a period of time and I'm not sure how long that will be but normally it might be two or three months until such time as we have proven the new oven at Broadmeadows.
PN428
THE SENIOR DEPUTY PRESIDENT: So just so I understand that, you're just going to take the current equipment holus bolus and set it up in the corner at the new Broadmeadows plant?---Yes, your Honour, that's correct.
PN429
And run it for a period of - - - ?---I'm guessing. I sort of thinking maybe two to three months. The ovens as you saw are discrete stand alone so that's fairly easy to pick those up and to move those. The two mixers are relatively small and the trolleys can all be loaded up. So there isn't a lot of equipment there which can't physically be taken out of the room, so we have an area of the factory at the moment where we can set it up which provides us a level of contingency so that we can actually run all of that equipment there until such time as we prove the new oven.
PN430
Yes, thank you?---We do that because we have to vacate that building by the end of this month and we haven't yet proven the new equipment. It's just too dangerous to cut in now when we haven't even got the line up and running.
PN431
Thank you. Mr Yeatman.
PN432
MR YEATMAN: Nothing, sir.
PN433
THE SENIOR DEPUTY PRESIDENT: Yes, thank you for your evidence,
Mr Barnes?---Thank you.
**** ALLAN MARCUS BARNES XXN MR REDFORD
PN434
You're excused.
PN435
THE SENIOR DEPUTY PRESIDENT: Mr Redford, is it best we wait until the morning to kick off with submissions?
PN436
MR REDFORD: Yes, your Honour.
PN437
THE SENIOR DEPUTY PRESIDENT: I think it's probably than going on - I was intending to adjourn at 4.15 rather than having you address me for eight minutes and then stop.
PN438
MR REDFORD: I think it's probably a better way.
PN439
THE SENIOR DEPUTY PRESIDENT: Yes, very well. Look, I wonder overnight if the parties could provide me with a copy of the agreement which preceded the 2004 agreement? I'll let you in the break work out who and how you do that. I raise that because I might have raised it in conference but now need to raise it on the record, of the structure of clauses 15 and 16 which read on their face suggest that all of the elements of clause 16 only apply in respect to technologically based redundancies which doesn't seem all that logical. So I would ask the parties to explain the structure of the agreement and how they see it operating and that really goes to clause 16 that says in the event of the technological the following provisions apply, subject to clause 15.4. 15.4 deals only with severance payments and then there's a whole raft of matters set out in clause 16. All right. Well, I will adjourn at this point. I'll adjourn until 10 o'clock tomorrow morning.
<ADJOURNED UNTIL FRIDAY, 16 MARCH 2007 [4.13PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
PETER BERNARD MCNEILL, SWORN PN65
EXHIBIT #LHMU1 APPLICANT'S OUTLINE OF SUBMISSIONS PN66
EXHIBIT #UNIBIC1 RESPONDENT'S OUTLINE OF SUBMISSIONS PN66
EXAMINATION-IN-CHIEF BY MR REDFORD PN67
EXHIBIT #LHMU2 STATEMENT OF MR MCNEILL CONSISTING OF 34 PARAGRAPHS, DATED 07/03/2007 PN76
CROSS-EXAMINATION BY MR YEATMAN PN113
RE-EXAMINATION BY MR REDFORD PN147
THE WITNESS WITHDREW PN153
TONY GIOGHA, SWORN PN177
EXAMINATION-IN-CHIEF BY MR YEATMAN PN177
EXHIBIT #UNIBIC2 STATEMENT OF MS GIOGHA OF 23 PARAGRAPHS, DATED 07/03/2007 PN183
CROSS-EXAMINATION BY MR REDFORD PN185
RE-EXAMINATION BY MR YEATMAN PN247
THE WITNESS WITHDREW PN262
CHRISTOPHER GORDON CHANDLER, SWORN PN265
EXAMINATION-IN-CHIEF BY MR YEATMAN PN265
EXHIBIT #UNIBIC3 STATEMENT OF MR CHANDLER OF 29 PARAGRAPHS PN272
CROSS-EXAMINATION BY MR REDFORD PN274
RE-EXAMINATION BY MR YEATMAN PN339
THE WITNESS WITHDREW PN350
ALLAN MARCUS BARNES, SWORN PN352
EXAMINATION-IN-CHIEF BY MR YEATMAN PN352
EXHIBIT #UNIBIC4 STATEMENT OF MR BARNES OF 23 PARAGRAPHS WITH FOUR ATTACHMENTS PN359
CROSS-EXAMINATION BY MR REDFORD PN361
RE-EXAMINATION BY MR YEATMAN PN421
THE WITNESS WITHDREW PN434
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