C2006/2411, Transcript of Proceedings [2007] AIRCTrans 153 (30 March 2007)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 16679-1

COMMISSIONER SPENCER

C2006/2411

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION-NEW SOUTH WALES BRANCH
AND
THE AUSTRALIAN WORKERS’ UNION - NEWCASTLE AND NORTHERN REGIONS BRANCH COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA-ELECTRICAL DIVISION NEW SOUTH WALES DIVISIONAL BRANCH CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION-CONSTRUCTION AND GENERAL DIVISION, NEW SOUTH WALES DIVISIONAL BRANCH NSW SUGAR MILLING CO-OPERATIVE LIMITED
s.170LW - Application for settlement of dispute (certification of agreement)
(C2006/2411)

BALLINA

10.07AM, MONDAY, 19 MARCH 2007

PN1

MR I MORRISON: I appear on behalf of the Australian Manufacturing Workers Union. With me today on my right is MR S MURPHY the AMWU organiser for the site.

PN2

MS P FLYNN: I appear on behalf of the respondent, and I appear with MR B SYME from the Cooperative.

PN3

THE COMMISSIONER: Thank you. Are there any threshold issues with this matter? I know that there has been - sorry, Mr Morrison?

PN4

MR MORRISON: Threshold issues being the issue of witnesses in the room, Commissioner, which is something which I think should be addressed now rather than as we move on.

PN5

THE COMMISSIONER: All right.

PN6

MR MORRISON: Ms Flynn has raised a point with me with regard to Mr Syme giving instructions, so it might be appropriate for Ms Flynn to raise her arguments as to why Mr Syme should be able to stay in respect to the evidence.

PN7

THE COMMISSIONER: Who are you wanting to stay, Mr Morrison, to give you instructions?

PN8

MR MORRISON: Well, I was going to call Mr Murphy first, and then after Mr Murphy has given evidence then he's available to stay and give me instructions.

PN9

THE COMMISSIONER: All right. Well, then you've got four other witnesses, is that correct?

PN10

MR MORRISON: Three other witnesses.

PN11

THE COMMISSIONER: Three other witnesses. I thought originally you had foreshadowed - - -

PN12

MR MORRISON: I foreshadowed that other people have not - - -

PN13

THE COMMISSIONER: That's all right, I just wanted to clarify. And those three other witnesses, you would have them outside whilst Mr Murphy is giving his evidence?

PN14

MR MORRISON: Yes.

PN15

THE COMMISSIONER: And then as they've given their evidence you'd wish them to stay then, is that correct?

PN16

MR MORRISON: That's correct.

PN17

THE COMMISSIONER: Are they rostered on to work today?

PN18

MR MORRISON: No, they are not because the company has taken the position that they had to seek leave to appear here today.

PN19

THE COMMISSIONER: All right. We're off to a good start. All right, what's your position?

PN20

MS FLYNN: Commissioner, Mr Syme is the only person who can properly give me instructions today and so I would ask that he be able to stay in the courtroom whilst the applicant's witnesses are giving evidence, despite the fact that he will be giving evidence himself at a later time. But he has given a detailed written statement, and so simply for the purposes of giving me instructions that's the basis upon which I make the application for Mr Syme to stay in the room.

PN21

THE COMMISSIONER: All right. Well, Mr Murphy and Mr Syme are given leave to stay for the purposes of instructions. You were both going to provide opening statements weren't you? I mean, they only need to be limited, I've read all of the materials.

PN22

MR MORRISON: My instructions from your associate is that you requested a brief opening and then go straight to witnesses.

PN23

THE COMMISSIONER: Yes.

PN24

MR MORRISON: The question about Mr Syme being able to stay certainly beggars a question about whether my witnesses, because I intend to - I foreshadow we intend to question Mr Syme at length when the opportunity arises, whether my witnesses apart from Mr Murphy can then conversely be able to stay until such time as they have given evidence.

PN25

THE COMMISSIONER: Well, they will be giving evidence first of all.

PN26

MR MORRISON: Yes.

PN27

THE COMMISSIONER: So normally the procedure is that both parties have a limited number of people, and normally that is one, sometimes it stretches to two providing instructions in these matters. I mean, I'll hear from Ms Flynn, but my difficulty with that is, obviously in placing reliance on the evidence you have more - - -

PN28

MR MORRISON: We understand the situation.

PN29

THE COMMISSIONER: Yes. It's not that I'm wanting to restrict any party in having the appropriate instructions, but obviously your members will be giving evidence first of all, so they will be available, as I understand, when Mr Syme gives evidence to provide you with any particular instructions you may have for cross-examination. But obviously if they are separate, separated while each one of your members gives evidence I would have more confidence in relying on that evidence in separation. And by saying that I don't provide any criticism of your members in any way, simply we're not strictly bound by the rules of evidence, but obviously it does provide more confidence if there's a separation.

PN30

MR MORRISON: I accept the logic, that's right, Commissioner.

PN31

THE COMMISSIONER: Thank you. All right. Now, I should say that, Ms Flynn, I did certainly acknowledge your submissions in relation to jurisdiction, and it is a matter as I read it whereby I think jurisdiction probably needs to be dealt with as part of the substantive matter. So what I would say is that I would like the parties to proceed as though jurisdiction is confirmed, however, I do intend, having heard all the submissions on the substantive issues, because I feel that in this matter there is an intermingling in terms of moving through the agreements, moving through the arguments in relation to the application of the award and the competency standards, so I will be visiting the element of jurisdiction as part of the decision in this matter. Is there any objection to that, Ms Flynn?

PN32

MS FLYNN: No, Commissioner.

PN33

THE COMMISSIONER: All right. Mr Morrison?

PN34

MR MORRISON: No, Commissioner.

PN35

THE COMMISSIONER: All right. Now, Mr Morrison, are you in a position to go to that opening submission?

PN36

MR MORRISON: Certainly, Commissioner.

PN37

THE COMMISSIONER: Thank you.

PN38

MR MORRISON: Commissioner, and just making clear the opening submission you are seeking is a brief one so I intend to be as brief as I can. The union intends, as I stated earlier, to call four witnesses, three of which have filed witness statements and one, a Mr Crichton, will give evidence which we say - oral evidence which directly refutes the witness statement of Mr Syme which has been filed with the Commission. But, Commissioner, the issue before us is this. We intend to take the Commission through a series of steps. Firstly we intend to establish that there has long been contained in the enterprise agreements made between the parties a classification structure containing the C1 to C14 employee classifications which directly relate to the Metal, Engineering and Associated Industries Award, that is the parent award of those agreements.

PN39

Once that is established we will show how it was understood by and discussed at negotiations that this classification structure was to be used in relation to the employees at the sugar mills. Thirdly, we will demonstrate what the wages differential between each classification was, and that's important to understand when read in conjunction with the Metal Industry Award. Next we will supply evidence as to how each employee was assessed against the criteria of the appropriate classifications and when those classifications were to apply. And then we will bring together the wording of a series of enterprise agreements, the underpinning award, and demonstrate how this was given to the employees as a commitment by the sugar mills, and the employees' expectations clearly were over many years that the classification structure would be applied to them with the relative wages that apply.

PN40

The reasoning behind the differential and between the classifications, we will discuss that at length, and lastly, the assessment process that the employees undertook in accordance with the agreement between the parties so there can be no doubt that there was a clear objective assessment of their skills. And then we say, Commissioner, that we will be able to make - the Commission will be able to make a direction for the reclassification of all the appropriate employees affected by the assessment.

PN41

And, Commissioner, this is the important part, because what there is, this is the elephant in the room, as it were, that the sugar mills have - cannot ignore. The agreements all relevant to this hearing clearly and unambiguously contain not just one classification but all the C classifications, and it would be further an insult to have the employer argue for it that this has no meaning. The classifications exist in the enterprise agreements for a purpose, and there is nothing we will say to contradict this. Their purpose is that this has always been the intent of the parties to apply these classifications to the employees in accordance with the award, and the award allows for the differential of the pays for the various classifications, with classifications, skills and competencies which the employer has benefited from.

PN42

Of course the classification structure was expected to be used, there could be no doubt, and that is what we intend to present, and therefore we say applied. If it's used it's applied and therefore our members are entitled to the benefit of that classification structure. Unless there are any further questions, Commissioner?

PN43

THE COMMISSIONER: Just for clarification, Mr Morrison. You had a list of the employees, as I understand, that had had the skills audit undertaken.

PN44

MR MORRISON: Yes.

PN45

THE COMMISSIONER: Is that who you say that, if you're seeking any direction or any order in relation to, it's in relation to that list of employees?

PN46

MR MORRISON: It is.

PN47

THE COMMISSIONER: And that would be the dispute at this particular time, is that correct, that you'd be seeking if there were new employees recruited to the sugar mill, that the application that you're seeking today, the competency standards continue to apply?

PN48

MR MORRISON: If the company is directed or ordered by this Commission to have a separate C classification depending on the skills and competencies of relevant workers then there is a process then by which a worker is identified as a particular C classification or a C10 or a C9 or a C8, and if the company then chooses to employ that employee they are employing them as their particular classification skills were determined. So any new employee that has been brought on would be employed as a C10 or a C9 or a C8, and therefore it's just automatic whatever the classification rate for that particular person is.

PN49

THE COMMISSIONER: All right. And I noticed in your submissions I think, or it might have been in one of the items of correspondence that Mr Tiller of the AIG had undertaken that.

PN50

MR MORRISON: That's correct.

PN51

THE COMMISSIONER: And there was a reference that the AMWU had not been involved. So there's no dispute about the particular outcome of classifications or proposed classifications on that list that you've included - - -

PN52

MR MORRISON: Not that we're aware of.

PN53

THE COMMISSIONER: You're not seeking to revisit that?

PN54

MR MORRISON: No. Even though it was done by, if you like, what could be seen as from the employer's side, Mr Tiller performed his job as he's been trained to do and came up with appropriate assessments, and we will not be seeking to question any of those actual assessments. And you would note from that list that there was not - a majority of employees were assessed at the C10, some were at the C9 and only one was at the C8 classification. But we, in itself, do not dispute that outcome.

PN55

THE COMMISSIONER: All right, thank you. Well, I might just adjourn shortly while Mr Murphy - I'm sorry, Ms Flynn. Then we'll adjourn. Mr Murphy is going to give evidence first of all, and at the same time you're going to have the other witnesses just stay in - - -

PN56

MR MORRISON: That might be appropriate.

PN57

THE COMMISSIONER: I'm assuming we've got the use of that room.

PN58

MR MORRISON: That room is a lot cooler than this.

PN59

THE COMMISSIONER: I know. I'm with you on that, Mr Morrison. We'll see how we go with that. It is very hot. I think it's starting to kick in, but we'll see where we end up. I mean, I'm not opposed if you want to remove your jacket, Mr Morrison.

PN60

MR MORRISON: Thank you very much, Commissioner.

PN61

THE COMMISSIONER: Thank you. All right, Ms Flynn?

PN62

MS FLYNN: This matter is a section 170LW application as you know and the Commission only has power under that section to settle disputes over the application of the agreement. What the cooperative will show is that the AMWU have not pointed to any provision of the 2003 agreement which provides, one, that the metal competency standards are to be implemented, and then two, as a result of them being implemented that a wage increase in whatever manner is then to flow on. There is no provision in the agreement that allows for that.

PN63

As the cooperative has outlined in its submissions that it filed in relation to jurisdiction there were only limited circumstances in which a wage increase is to be granted under the agreement. Primarily that arises from the annual increases of 3.5 per cent which was to be given and had been given to employees under the agreement. The other situation in which a wage increase can be granted is under clause 9(f) of the agreement where essentially that relates to a work value claim if there's been a significant change in an employee's job. That is not the situation that we're presented with today, although I note that it has been raised by Mr Morrison in his submission in reply to the cooperative's statements that were filed.

PN64

So the cooperative's position is that the Commission, with respect, does not have jurisdiction in relation to what the AMWU is seeking because there is no provision in the agreement which contemplates that a wage increase will flow on. In any event the cooperative's position is that even if the AMWU were right, that as a result of the metal competency standards being implemented that a wage increase was warranted, they have not acknowledged in their evidence or in their submissions that over award rates are already paid to employees under the 2003 agreement, nor have they acknowledged the role that the implementation guide plays as well.

PN65

If we were to look at the provision in the award which contemplates that the metal competency standards can be implemented at the workplace level by agreement between the parties. That clause also does not provide that it is mandatory for a wage increase to flow on from the implementation of the competency standards. If anything the clause which is, I think clause 5.4 from memory, refers to the implementation guide, and in particular there's two clauses in the implementation guide which we say are relevant, and firstly that is clause 3.4, which contemplates that the implementation of the competency standards in your enterprise does not by itself justify wage increases for existing employees.

PN66

That clause also contemplates that where over award wages are already being paid that that should not lead to double counting. The cooperative's position is that in all of the circumstances the AMWU is trying to compare apples with oranges if you like. We have a 2003 agreement in place which pays over above award wages to employees. Essentially they're receiving $174 or around that figure above the minimum award rates of pay, but despite that they want to say, well, because there's classifications mentioned in the agreement therefore that's the starting point to say that employees should then receive a wage increase.

PN67

That's joining the dots which aren't there, Commissioner. There's a big jump to say that because clause 9 of the 2003 agreement which, yes, conveniently lists out the C classifications from the metals award as well as from the Sugar Industry Award, as a matter of convenience to show that all of those jobs will receive a 3.5 per cent wage increase only, it does not specify the wage rates to be paid to employees because that's the enterprise rates of pay that are paid. Clause 9 does not say that those are the wage rates to be paid to employees and that a wage increase will be paid if the metal competency standards are implemented at the workplace.

PN68

The other relevant provision of the implementation guide is clause 3.7. That clause contemplates that if extra skills and knowledge identified in the competency standards are exactly the same as the ones for which the employees are already receiving a specific additional payment such as through a certified agreement or an award or an over award payment then there is no double counting. We would say that employees have already received payments for the skills that they are using and as a result of the metal competency standards being implemented they are seeking an increase which they are already being compensated for.

PN69

As indicated, there is no correlation between the C classifications that are listed in clause 9 of the 2003 agreement and the wage rates paid to employees. There's a big jump to say that because the C classifications are mentioned in the agreement that those somehow - the rates of pay under the 2003 agreement, despite being over above award wages justify a wage increase being paid to employees. I note that Mr Morrison said that he will be calling evidence from Mr Crichton. There was a timetable agreed between the parties where the AMWU would file statements in reply by 9 March. The cooperative didn't receive statements in reply. What we received was a submission in reply from Mr Morrison.

PN70

We indicated on the first occasion that we received the AMWU statements that if there was any additional witnesses to be called then we required them by a set timeframe so that the cooperative would know the case that it had to answer. We would object to Mr Crichton giving any additional evidence on the basis that we haven't had an opportunity to know what he's going to say and prepare any reply accordingly.

PN71

THE COMMISSIONER: When you say additional evidence, I have a witness statement from Mr Murphy, Mr Knowle, Mr Ackers, is it?

PN72

MR MORRISON: Ackers, Commissioner.

PN73

THE COMMISSIONER: And when you say additional evidence, you don't have a statement at all from Mr Crichton?

PN74

MS FLYNN: That's correct, Commissioner.

PN75

THE COMMISSIONER: And there's no statement from Mr Sargent or Mr McLaughlin, is there?

PN76

MR MORRISON: No, there's not, Commissioner.

PN77

THE COMMISSIONER: And you don't intend to bring them as witnesses?

PN78

MR MORRISON: No, we don't.

PN79

MS FLYNN: I'm sorry, Commissioner, there is one thing. The cooperative's final position is that what the AMWU is actually seeking, in the absence of a specific clause providing for a wage increase when the metal competency standards have been implemented, they are essentially seeking a variation to the agreement, and that is outside the Commission's jurisdiction in relation to section 170LW, and also under Work Choices there's only limited means to vary a pre reform certified agreement, and we would say this is not the forum in order to achieve that.

PN80

THE COMMISSIONER: Thank you, Ms Flynn. What do you say, Mr Morrison, about the evidence of Mr Crichton, for which there's no witness statement is there?

PN81

MR MORRISON: Mr Crichton's evidence would simply be to refute a particular paragraph in Mr Syme's statement, and Mr Syme is in the room. What we did intend to do is actually - - -

PN82

THE COMMISSIONER: So you're saying it's very limited evidence?

PN83

MR MORRISON: Very limited and specific about one point that Mr Syme raises in his witness statement. We were intending to actually - I was going to question Mr Syme about that particular point and then include Mr Crichton to refute directly the evidence of Mr Syme, but Mr Syme being present it might be more appropriate then to bring Mr Crichton on before and Mr Syme can hear what Mr Crichton has to day.

PN84

THE COMMISSIONER: Right. Well, Ms Flynn, I'm reluctant to confine. I understand that there were - certainly I didn't set directions in this matter. As you're all aware it was before SDP Drake, but I think she left it to the parties.

PN85

MS FLYNN: That's correct.

PN86

THE COMMISSIONER: But there certainly has been an orderly, fairly orderly exchange of documents as I understand between the parties. I'm reluctant to confine the union's case, and that said would prefer to allow them to give the evidence. But I certainly will allow, if, as a result of Mr Crichton's evidence we hear from Mr Syme, and if there are issues raised by Mr Crichton that he needs to get further particular documentation, or I'll leave it to you, if there's a need to reserve particular matters in terms of his evidence obviously within the normal confines of - I wouldn't expect him to speak to other parties in relation to it. You're aware of the issues that I raise. I'll allow you to reserve a limited nature of him giving further evidence if required in relation to that matter and you can visit that particular issue at that time.

PN87

MS FLYNN: Thank you, Commissioner.

PN88

THE COMMISSIONER: All right. Well, is there anything else at this stage?

PN89

MR MORRISON: No, nothing at this stage.

PN90

THE COMMISSIONER: So when would Mr Crichton be coming, what order of the witnesses?

PN91

MR MORRISON: The witnesses in order will be Mr Murphy, Mr Ackers, Mr Crichton and then Mr Knowle from our side.

PN92

THE COMMISSIONER: All right. Well, it might be - I'm not sure how that's going to go in timing but it might be that you have the luncheon adjournment for Mr Syme to consider that particular evidence. We'll see if we can get that done. I'm not sure how that will go but I'll leave it to you, Ms Flynn, to address me on that particular issue if there are issues arising from that evidence that you need to reserve.

PN93

MS FLYNN: Thank you, Commissioner.

PN94

THE COMMISSIONER: All right, well, I'll adjourn shortly to allow for you to put the witness in the box and organise the other witnesses. Thank you.

<SHORT ADJOURNMENT [10.30AM]
<RESUMED [10.44AM]

PN95

THE COMMISSIONER: I think we're organised.

PN96

MR MORRISON: Yes. Mr Murphy is indisposed for a matter of seconds.

PN97

THE COMMISSIONER: That's all right.

PN98

MR MORRISON: But we might use the opportunity to perhaps see whether it's appropriate that the union's submission be marked because I will be actually taking - - -

PN99

THE COMMISSIONER: Certainly. We may mark that with the accompanying attachments. Do you have any objection to that course, as a collective bundle?

PN100

MS FLYNN: No, Commissioner.

EXHIBIT #1 AMWU SUBMISSION WITH 12 ATTACHMENTS

PN101

THE COMMISSIONER: Now, have you got a copy of the witness statement for Mr Murphy, or has he got his own copy?

PN102

MR MORRISON: He has his own copy, and I've given a hard copy to the associate, Commissioner.

PN103

THE COMMISSIONER: Thank you.

<OFF THE RECORD

PN104

MR MORRISON: Thank you, Commissioner.

<STEVE MURPHY, CALLED [10.48AM]
<EXAMINATION-IN-CHIEF BY MR MORRISON

PN105

MR MORRISON: Mr Murphy, for the record could you please tell us your name, address and occupation?---Steve Murphy (address supplied). I'm an organiser for the AMWU based in the Newcastle regional office.

PN106

Do you have in your possession a witness statement in your name filed on your behalf?---Yes, I do.

PN107

Have you had an opportunity to read that witness statement?---Yes, I have.

PN108

Do you wish to make any corrections to that witness statement?---No.

PN109

Is it your evidence to say that to your knowledge it is a true and accurate record?
---Yes, it is.

PN110

Commissioner, can I ask for - - -

PN111

THE COMMISSIONER: I should have had my associate here to swear the witness in, but you've got no objection to those early remarks and no reason to doubt that?

PN112

MS FLYNN: No, Commissioner.

PN113

THE COMMISSIONER: All right. Well, we'll have my associate swear Mr Murphy in, and then we'll mark the exhibit.

<STEVE MURPHY, AFFIRMED [10.49AM]
<EXAMINATION-IN-CHIEF BY MR MORRISON, CONTINUING
EXHIBIT #2 STATEMENT OF STEVE MURPHY

PN114

MR MORRISON: Mr Murphy, if I could take you to that particular witness statement and particularly to start off with paragraph 2 of that witness statement. You say:

PN115

I am aware of the circumstances and background of the ongoing industrial issue over a skills audit and competency standards and subsequent appropriate remuneration which has resulted in the matter before the Commission.

PN116

I'm wondering if you could actually, before you take us to those details, give us some background as to what your knowledge generally of skills audit and competency standards are?

**** STEVE MURPHY XN MR MORRISON
PN117

MS FLYNN: Commissioner, I just object on the basis that that detail shouldn't have been included in the statement.

PN118

THE COMMISSIONER: Well, is there significant evidence in that regard, Mr Morrison?

PN119

MR MORRISON: The significance of it is that I'm establishing Mr Murphy's expertise with regard to the question of skills audits and competency standards. If Ms Flynn is prepared to accept Mr Murphy as an expert witness in that case then I have no need to ask the question.

PN120

THE COMMISSIONER: Well, I think rather than have Ms Flynn ask that particular question I'll allow Mr Murphy to answer the question. I just indicate that - and, you know, I have taken carriage of this particular matter. Normally I do set fairly strict directions as to that there be limited evidence drawn from the witnesses as evidence-in-chief, mainly from a procedurally fair perspective so that neither side is caught by surprise. Are there a series of questions that you have to ask for Mr Murphy?

PN121

MR MORRISON: Only with relation to the clarification of points, but they're not that many, with regard to clarification of some points in the witness statement, but they relate to specific points he has raised in his witness statement.

PN122

THE COMMISSIONER: All right, I'll the questioning, but certainly that doesn't confine you, Ms Flynn, from providing objections if you're required to do so.

PN123

MS FLYNN: Thank you, Commissioner.

PN124

THE COMMISSIONER: Thank you, Mr Morrison. You might re-state the question.

PN125

MR MORRISON: Yes, certainly. With regard to paragraph 2 of your witness statement could you perhaps give us some background to your knowledge of skills audits, competency standards and appropriate remuneration?---I've been involved and had an awareness of competency standards since I was a second year apprentice working at Tubemakers. In 1996 at Tubemakers the tradesmen there went through a process of implementing the competency standards doing skills audits and linking the skills that are needed in the business and the skills that they held with the appropriate number of points that are allotted to each. And being a second year apprentice I was with the tradesmen when they were working through that. It was a fairly well unionised site and apprentices were involved in pretty much everything the tradesmen were doing. From there I became a departmental and senior site delegate at Tubemakers when I became a tradesman and I was responsible for any issues or any new skills that members of the AMWU got, to process that and give advice on whether or not employees be members of the AMWU with the skills that they picked up or the training that they were given or identifying skills gap, whether or not they would be successful in being reclassified to another classification, et cetera. So I was involved in that from the AMWUs perspective as a delegate. And since coming in I've dealt with a number of engineering, because that's predominantly the industry that I look after, with the introduction of competency standards and the appropriate classification and wage outcomes as a result of that.

**** STEVE MURPHY XN MR MORRISON
PN126

Thank you. And then with regard to your paragraph 3 you talk about the assessment process of the Metal, Engineering and Associated Industries Award. I'm not sure whether Ms Flynn will take objection if I ask you, is it necessary for you to explain to us how that process works rather than take us through the details of the award, whether Ms Flynn would have an objection to that question?

PN127

MS FLYNN: I question the relevance of that evidence being provided and, again, it's just an issue of this is - I would say it's new material which we should have had the opportunity to respond to.

PN128

THE COMMISSIONER: All right. Well, what I might do is allow you - I'm not giving you absolute latitude to proceed with all the questions - Ms Flynn again has the ability - but I'll allow you to ask the particular questions that you wish. Ms Flynn will obviously be able to address these matters in submissions, but also as we proceed if there are issues that you think are such new evidence that you need to revisit your particular evidence, you will advise me of that.

PN129

MS FLYNN: Yes, Commissioner.

PN130

MR MORRISON: For the purposes of those less - - -

PN131

THE COMMISSIONER: I might just stop you. I might just go off the record.

<OFF THE RECORD

PN132

MR MORRISON: For the purpose of those of us who lack an understanding of the Metals Award with regard to the assessment process could you just briefly explain to me how it works?---Just quickly on how people are assessed is that, firstly, you go through a consultation process and train up some delegates so they understand how the competency system works. Then the business has a look at the skills that they require within the business that are required to be performed by a whole range of employees from production, non trades all the way up to your engineers, et cetera, again talking in an engineering environment. Then there's a process where you identify the skills and link it to a particular competency standard that is recognised under the National Metals and Engineering Competency Standards, then there's an auditing process that employees go through that links the skills that they hold on the job to those particular standards where they do - a number of ways you can do that, self assessment or peer assessment or a number of other ways. And from there a number of points are awarded for the skills that the employees hold, and the competency standards are set out in a way where an apprentice when they finish their time and come out as a tradesman, through the TAFE training and skills on the job they get they came out with what's called a base tradesperson level or a tradesperson level 1, which is 20 core points plus 76 additional points, and that's under the award and under the competency standards that's seen as a tradesperson level 1 outcome. As you go through, and there's a number of ways, you can go to tech and pick up extra skills, or what we found at Tubemakers is you can develop skills within the job so a specific workshop based competency, you can get points for just stuff that's job specific, and the other thing for more elderly members of the union or workers on the shop floor is there's recognition of prior learning, whereas there wasn't any formal training for instance in hydraulics years ago, but tradesmen would learn on the job so there was a recognition that if you'd learnt it through your trade that you could still get awarded the points for it and progress up beyond a tradesperson level 1 C10 outcome. And each level that follows that, each 12 additional points you get you go up to a C9, a C8, C7 for each additional 12 points. I think that's a simple way to explain it.

**** STEVE MURPHY XN MR MORRISON
PN133

Thank you for that simple way. Now, Mr Murphy, I'm going to hand you up exhibit 1. If I could firstly ask you to turn to paragraph 20 of your witness statement?---Yes.

PN134

And read that in conjunction with AMWU6, attachment to that exhibit 1?---Yes.

PN135

And you say there:

PN136

I travelled to Condong Sugar Mill and met with Mr Syme, and AMWU delegate Ken Crichton to discuss finalising the auditing process and implement the outcomes.

PN137

What do you actually mean by that?---The meeting came about, I spoke to a delegate at Harwood who takes on the role of convening all the three sites within the sugar mills, and he said that there's some hold up in the last step of the process which was about after the skills audit is conducted and employees come out with a particular number of points, they get allotted to a C classification and the appropriate increase. There was a hold up in relation to the sugar mills implementing that part of the process, and Dennis explained to me over the phone that Mr Syme had had some informal discussions where - - -

PN138

Could you just clarify Dennis?---Knowle.

PN139

Who is?---The senior site delegate.

PN140

Thank you?---Had spoke to Bill Syme informally, where Bill had flagged up with Dennis that he may be prepared to look at 5 per cent of the award rate increase, which I think was about 50 cents by Dennis's quick calculation, increased to the rate in recognition of the C9 outcome for a number of employees that had come out as such. Dennis rang me on it and said that our members weren't happy with 5 per cent of the award, that they wanted to know what they were entitled to. So I spoke with Dennis and I spoke to the other two delegates, Ken Crichton and Jeff Ackers, and the consensus was to go up and have a meeting with Bill and see if we can work through that last step of the process and to finalise it. So I went to the sugar mills, it was around about - it was late January, 23rd I've got written here, that I met with Bill Syme, Ken Crichton, our site delegate at Condong Sugar Mill came across and we had a meeting with Bill where we raised specifically that last step in the process of the skills audit, and wanted to understand where the sugar mills was coming from in relation to where it was with this 5 per cent of the award rate. And we explained to Bill the outcomes of the decision made by Deputy President Keogh and how schedule D applied in relation to the award, and those calculations were made based on 96 points being a C10. The majority of our members have come out with 96 points. The rate they're getting paid we argued was the C10 rate, and that if you applied the Deputy President's decision that the outcome or the calculation that should be made is 105 per cent of the current rate being paid should go to those people who have the 96 base points plus 12 points, and those employees that had the 96 base points plus an additional 12 plus another additional 12, being a C8, should be 110 per cent of the current rate being paid.

**** STEVE MURPHY XN MR MORRISON
PN141

THE COMMISSIONER: Just for the record, what's that decision you're referring to, Deputy President?---It was a decision of Deputy President Keogh. It's actually written in the award under schedule 10 - sorry, schedule D, where a decision was made about the percentage relativities between the relevant C classifications. Explained that. From then Mr Syme raised the issue of flexibilities in both the Broadwater and Condong mills. Currently at Harwood there's flexibilities between the fitting trades and the boilermaking trades where they do a little bit of each other's work to assist there, and that the sugar mills were interested as part of the process about expanding those flexibilities into the Broadwater and Condong mills. And what we said to Mr Syme in that meeting was that we didn't have an objection to it, it's clear that we participated in that process by what's happened at Harwood, and that we'd be happy to participate in a process at both Broadwater and Condong provided that there was proper consultation. But what we said was that we didn't want anyone to be made redundant as a result of participating in it, that there be proper training for people, so it was just an ad hoc type of thing, that proper formalised training, and a number of other little things that just make sure that it runs smoothly. From there we went on to just discuss what the arrangements would be between the trades, what skills would potentially be picked up and whether it would apply to contractors that came in, et cetera. And lastly Mr Syme raised the issue of the AMWU doing - the impression that we got was the AMWU doing an agreement of our own, and that was just back in January 06, where we had a short conversation around that where we expressed that we were happy to take that issue back to our members, but traditionally bargaining in relation to enterprise bargaining had been done through a single bargaining unit which comprised all the unions, and we had some reservation around that. Mr Syme requested at the end of the meeting that we put our position in relation to those issues in writing, hence the letter of 30 January 2006.

PN142

MR MORRISON: And that letter being AMWU 6, attachment of the exhibit 1?
---Yes.

PN143

And that letter, in your opinion does that reflect the discussions of that meeting?
---That reflects the discussions of the meeting.

PN144

No further questions.

**** STEVE MURPHY XN MR MORRISON
PN145

THE COMMISSIONER: Thank you, Mr Morrison. Ms Flynn?

<CROSS-EXAMINATION BY MS FLYNN [11.04AM]

PN146

MS FLYNN: Now, Mr Murphy, you say in paragraph 3 of your statement that your members have an expectation that they would be individually classified based on an objective assessment undertaken in accordance with the award, that's right?---Yes.

PN147

But there's no provision in the 2003 agreement is there that says that people will get a wage increase as a result of the metal competency standards being implemented, isn't that right?---It doesn't specifically say that, no.

PN148

In fact it's more than that. There's no provision in the agreement which is along those lines, isn't that right?---That's incorrect from my interpretation of the agreement.

PN149

So can you take me to the clause in the 2003 agreement which says that employees are to get a wage increase as a result of the metal competency standards being implemented?---My reading of it, there's three clauses that would probably come into play when making that decision. I think firstly is in relation to clause - I probably should go chronologically. Clause number 6, which talks about the relationship to the parent award and the words that say "read and interpreted wholly in conjunction with the award."

PN150

THE COMMISSIONER: So you're in the 2003 agreement now aren't you?
---Yes.

PN151

Thank you?---So clause 6 says that the agreement read and interpreted wholly in conjunction with - it mentions a number of awards but it talks about the federal Metals Award. Then in clause 9 it looks at the relevant classifications and it deals with both production and with your metals and engineering, dealt with separately but all dealt with within the same clause, where it talks about - and if you look at the definition, engineer and tradesperson level 1, engineer and tradesperson level 2, special class and the C classifications there, and if you look at clause (f) under clause 9 it says that:

PN152

Where there is a significant change in an employee's job description due to technology, changing technology, nature of work, skill and responsible required or the conditions under which work is performed a new classification an appropriate wage rate or wage rate increase for an existing classification may be determined in negotiations between the parties.

**** STEVE MURPHY XXN MS FLYNN
PN153

Now, we're saying that the word or clarifies it could be any of those scenarios, it doesn't have to be all of them, but we say that (f) clarifies a way that that could happen. And further on it talks in clause 4.18, on mine are saying page 16 of 49, where it says that under 4.18, it says - award conditions is the heading, it says:

PN154

The parties to this agreement recognise that various awards, namely -

PN155

And then the effective one is the Metal, Engineering and Associated Industries Award 1998:

PN156

- supplement the operation of this agreement, and that various clauses of these awards will apply as appropriate to work covered by this agreement.

PN157

MS FLYNN: So can you take me to the exact clause in the 2003 agreement which says that a wage increase must be given once the metal competency standards have been applied or implemented?---9(f) - - -

PN158

No, just the clause that you're relying on?---Well, 4.18, 6 and 9(f).

PN159

If I were to say, look, that's a number of clauses. So are you saying all four of those clauses gives rise to it?---Well, the agreement is read in total and the agreement is supplemented by the award, read wholly in conjunction.

PN160

Okay, so let's go to clause 6?---Yes.

PN161

It's read in conjunction with the Metals Award?---Read and interpreted wholly in conjunction, yes.

PN162

There's no provision in the Metals Award though is there that says a wage increase must be given if the metal competency standards are implemented, isn't that right?---The award deals with the relevant classifications and there's wage rates that apply. So if an employee went from a base level C10 to a C9 outcome by earning 12 additional points, under the award they would move up to a C9 classification and get paid an increase.

PN163

Under the award?---That's correct.

PN164

And that's the key thing isn't it, because the award provides the minimum rates of pay doesn't it?---It's read wholly in conjunction with the award. The agreement takes precedent, so the agreement does have a wage rate.

**** STEVE MURPHY XXN MS FLYNN
PN165

No, you didn't hear my question. The Metals Award provides the minimum rates of pay doesn't it?---Provides minimum rates of pay, yes.

PN166

The 2003 agreement provides above award rates of pay doesn't it?---Yes, it does provide above award rates of pay.

PN167

So in terms of the - there is a difference between the 2003 agreement and the Metals Award in terms of the rates of pay, isn't that right?---There's an inconsistency between what the award says and what the agreement says for a base trades level, yes.

PN168

But it's more than that isn't it? Because if we were to go to clause 9 of the agreement which sets out the C classifications, there's no rate of pay specified there is there?---There's no rate of pay specified anywhere in the agreement.

PN169

That's right. There's only increases that are specified in clause 9?---That's right.

PN170

And in fact there's no definitions provided in relation to the C classifications that are mentioned at clause 9 is there?---Not in the body of the agreement, no.

PN171

If we were to go to - I withdraw that for the moment. You've got a copy of the submissions that were filed on behalf of the AMWU with you there?---Yes.

PN172

Can you just take me to the part in the submission which refers to clause 9(f) of the 2003 agreement?---Do you want me to search through all this?

PN173

Well, you might want to look at the written part in the first part which is headed Submission?---It talks in clause number 9 - I've only just made a quick - where it says each agreement identifies classification structures which range, and it mentions clause 9 in AMWU7, which is the certified agreement 1995.

PN174

I'm talking about the 2003 agreement. Where is there reference in the submissions to clause 9(f) of the 2003 agreement. There's no reference to clause 9 there for the 2003 agreement, isn't that right?---Not in the submission I just read.

PN175

So your reference to relying on clause 9(f) of the 2003 agreement is actually new, isn't that right?---It's been raised a number of times around that particular clause.

PN176

But it's not even raised in your witness statement, isn't that right?---It should mention there that - it mentions the award provisions and it mentions the agreement provisions.

**** STEVE MURPHY XXN MS FLYNN
PN177

But you don't say that one of the sources of your argument that why a wage increase is warranted is because of clause 9(f) of the 2003 agreement?---Not specifically in - it doesn't say 9(f) in my witness statement, no.

PN178

And that's because there has been no significant change in the employee's job has there?---Well, that's one of - that's only one of the ways that 9(f) deals with. I think there's four.

PN179

Okay, well, let's go through them. So there's been no significant change in the employee's job description due to a change in technology has there? That's the first part of clause 9(f)?---Just hold on a second, I've got to find it. Okay, I've got it. There's been no change in technology.

PN180

Significant change in an employee's job description due to a change in technology, isn't that right?---That's correct.

PN181

And there's been no significant change in an employee's job description due to the nature of the work, isn't that right?---That's arguable in Harwood mill given the flexibilities between the two trades.

PN182

But in terms of - - -?---That's a significant change to the nature of their work, they're working within another trade environment.

PN183

We're talking about the subject of this application is over the metal competency standards being implemented?---That's correct.

PN184

And you've given evidence that it's taken place over a number of years?---Mm.

PN185

In that number of years the jobs that we're talking about have not significantly changed in the nature of the work have they?---I disagree. I was involved - I was a fitter by trade, and when you start flexing into boilermakers work electricians work or into the machining side it is a significant change in your job.

PN186

I'm talking about at the cooperative site, that there has not been a significant change in the nature of the work?---I disagree in the Harwood mill.

PN187

In terms of there's been no significant change in the skill and responsibility as a result of changing technology in the work that's been performed has there?
---There's a comma after technology, I think it's another qualification meaning skills and responsibility required is separate to a change in technology.

**** STEVE MURPHY XXN MS FLYNN
PN188

The skill and responsible required or the conditions under which work is performed, yes, you're right. So if there's no change in the skill and responsibility required or the conditions under which work is performed, isn't that right?---That's what it says. We say that the skills audit identified that there was a change in the skills and responsibility required by the tradesman and the conditions under which they were performed.

PN189

But your analysis, the metal competency standards looks at the classifications under the award, isn't that right?---Yes. They're under the agreement as well.

PN190

In order to classify people?---Yes. They're in the agreement as well.

PN191

But there's only names mentioned in the agreement, isn't that right?---They're the names that are mentioned right through the competency standards, through the award and through schedule D.

PN192

But they're simply listed there, but the award sets out the classifications and then the definitions that apply to that?---The award sets out the definition, yes.

PN193

So in terms of clause 9(f) of the agreement, that does not apply to this situation does it?---We argue that it does.

PN194

But you've never raised this before have you?---It was raised many times, that we believe that the agreement allows for and facilitates where there's a change in the work we do, if we're picking up skills, to progress through the levels that are in here. They're consistent with what the award says because they even have the same headings, meaning an engineering tradesperson level 1, being somebody with - that's a C10 outcome, which when you read the award says 96 points, 20 basics plus 76 and so on and so on up to your level.

PN195

Well, I put it to you that clause 9(f) has never been raised previously as the source of why an increase is warranted?---Well, we've raised that the agreement applies.

PN196

The agreement applies, I accept that, that's what your argument is. But you've never pointed to clause 9(f) before as being the source of why the increase is warranted have you?---Because that's not the only reason that we say it's warranted.

PN197

It's just the whole agreement, that's your position isn't it?---Well, clause 6, clause 9 and clause 4.18 talk about it, and we spoke about how the agreement is read in conjunction with the award when we met with Bill Syme back in January 06.

**** STEVE MURPHY XXN MS FLYNN
PN198

There's no significant change in technology that's occurred recently that you can point to at the cooperative's mills is there?---No.

PN199

That has impacted on the job performed by these people?---That's correct, not that I'm aware of.

PN200

Now, clause 10 of the agreement, because you refer to the whole agreement, that's the no extra claims clause, isn't that right?---Yes.

PN201

And that provides that there's to be no increases or variations other than what are consistent with the terms of the agreement, isn't that right?---That's correct.

PN202

And again there's no provision in the agreement which says a wage increase if warranted as a result of the metal competency standards being implemented, isn't that right?---Those particular words aren't contained in the agreement. 9(e) deals with that.

PN203

Now, in terms of, in paragraph 5 of your statement you refer to the structure existing in the certified agreements?---Yes.

PN204

Is that structuring in clause 9 of the 2003 agreement?---Yes, that's the structure that talks about in the metals and engineering area from the C14 classification up to the C1 classification.

PN205

Where it's listed at page 5 of nine and six of nine of the agreement, or it's clause 9 headed Wage Increases, that's what you're talking about?---Yes.

PN206

And in paragraph 5 you say that your members have told you over the years that they've supposedly had discussions with management. So you haven't had those - you weren't party to those discussions, is that right?---I wasn't party to the discussions. I wasn't working with the AMWU. Up until then I sought the advice of the delegates and members in relation to how those issues had been dealt with.

PN207

So at paragraph 7 of your statement you referred to there was a dispute between the cooperative and your members. That was largely over the employees returning over inflated self assessment scores, isn't that right?---Yes. The National Metals and Engineering Competency Standards Implementation Guide, when it deals with the - I think it's about step four, is the auditing process. There's a number of ways that through consultation you can do an auditing. One of those is you can do peer assessment where you assess somebody, one of your work mates on the job, another one is you can do a self assessment which you do yourself, and that's checked off by the company. Another way is that the company does the assessment and you do a tick and flick sheet. And my understanding was that when the consultation was taking place it was agreed that step four would be a self assessment process, and my understanding from talking to the delegates and members on the shop floor was that the company disputed the outcomes of the skills audit process.

**** STEVE MURPHY XXN MS FLYNN
PN208

Because they were largely over inflated, isn't that right?---That's what the company alleged, yes.

PN209

Now, in terms of paragraph 10 you say that there was a proposal put together or an agreement reached in terms of the five steps that would be progressed through. There is no agreement though to increase wages under the 2003 agreement as a result of the metal competency standards being implemented, isn't that right?
---Sorry, what was the question?

PN210

At paragraph 10 of your statement you set out the agreement that was reached about a process involving five steps?---That's right.

PN211

But as part of that agreement there was no agreement that the wages paid to employees under the 2003 agreement would also be increased, isn't that right?
---And minus - - -

PN212

You just need to answer the question, Mr Murphy?---Was there an agreement that a wage increase would be - - -

PN213

That's right?---No, there was no agreement written up in relation to that.

PN214

Now, in paragraph 14 of your statement you referred to the fact that the skills audit process was to be conducted again. The AMWU was given the opportunity to have MISTAS be part of that process, isn't that right?---On the basis that we pay for it, yes.

PN215

And the union chose not to involve MISTAS, isn't that right?---That's not correct. What we said to Mr Syme was that the Metals and Engineering Competency Standards Implementation Guide says clearly that employees shouldn't have to pay any money for the purposes of being audited, and what we explained was that it's the company's obligation to put this auditing process in place and employees shouldn't have to bear the cost.

PN216

The cooperative had actually in the past involved MISTAS though hadn't it?
---Yes.

PN217

But on this occasion because they had to redo the whole process they simply required the union, not employees, to pay for any fees that MISTAS may charge, isn't that right?---That was the request, that the AMWU pay for it.

**** STEVE MURPHY XXN MS FLYNN
PN218

Now, there's no requirement in step 5 of the implementation of the metal competency standards for wages to be increased is there?---It doesn't set out a requirement. We say that the agreement and the award deal with that.

PN219

And the award doesn't set out a requirement that wages are to be increased as a result of the competency standards being implemented does it?---I'd argue that it does.

PN220

Well, it's not an argument. I'm saying does the award contain a provision that says wages are to be increased as a result of implanting the competency standards?---Yes.

PN221

It says in whatever situation where the metal competency standards are implemented wages must be increased?---If an employee is assessed as going up a level, that's requiring 12 additional points or 24 additional points, there's another level.

PN222

Under the award?---That's correct.

PN223

It's in fact only when the person is receiving minimum award rates of pay, that they may have an argument that they're entitled to a wage increase, isn't that right?---That's not my experience.

PN224

But you've been unable to point us to any specific provision in the 2003 agreement which says that a wage increase must be given in conjunction with the metal competency standards being implemented, isn't that right?---I disagree. I think I clarified it pretty clear in relation to the clauses that I pointed out.

PN225

Well, I put it to you that you haven't. In terms of paragraph 19 of your statement you say that you're aware of a conversation, but you weren't present in that conversation, isn't that right?---I was not present in relation to the conversation that Mr Syme had with Mr Knowle.

PN226

Thank you. In terms of - in paragraph 21 of your statement you mention that there's no C10 rate of pay in the agreement, isn't that right?---Yes. I said that there's no rate of pay defined for the classifications beyond C10.

PN227

And that's because employees under the 2003 agreement get paid an enterprise rate of pay, isn't that right?---Yes, that's the purpose of the auditing process, to find out what that rate is relevant to.

**** STEVE MURPHY XXN MS FLYNN
PN228

But the rate of pay under the 2003 agreement, that exceeds the minimum rate of pay for a C10 under the Metals Award, isn't that right?---I think we said earlier that it's above the award rate.

PN229

Yes. Even though you're seeking a wage increase on behalf of your members you haven't taken into account that over award rate of pay paid to them already have you?---Yes. We're saying that there's an inconsistency between the agreement and the award.

PN230

But you haven't acknowledged what happens when you have an employee already receiving an over award rate of pay have you?---You'll have to clarify that question.

PN231

Well, under the 2003 agreement employees are paid well - they're paid above the award rate of pay aren't they?---They're paid above the C10 classification to the award, yes.

PN232

And as part of your application you have not accommodated for that fact that they're already paid well above the award rate of pay have you?---We believe we have. We're saying that the current rate of pay that's been paid to employees on that site with the skills audit process that has been conducted, that is in line with a - what would be paid to a base tradesperson.

PN233

But you're making that argument even though there is nothing in the agreement to support that, isn't that right? That's your interpretation of the agreement?---Well, I wouldn't say it's an interpretation. That's my experience through the industry on how it works and that's the way that we've applied it in a number of instances.

PN234

But we're not talking about experience here. We're talking about the terms of the 2003 agreement which would justify a wage increase. And you've already told us that there's no rate of pay specified for a C10 you mention in clause 9 of the agreement, isn't that right?---We're saying that there's no rate of pay documented in the agreement, that's correct.

PN235

Now, at paragraph 22 of your statement you refer to relativities under the award, and again the relativities under the award are based on the minimum rates of pay aren't they?---They're calculated on the award rates of pay, yes.

PN236

That's right. But with the 2003 agreement that's not based on the award rates of pay is it?---Sorry, the 2000 agreement?

**** STEVE MURPHY XXN MS FLYNN
PN237

The 2003 agreement is not based on the award rates of pay is it?---No, it doesn't have any mention of rates of pay in there.

PN238

And you've already told us that employees are paid above award rates aren't they, under the 2003 agreement?---That, yes.

PN239

So there is a mismatch between what is paid under the 2003 agreement versus what's paid under the Metals Award, isn't that right?---We're saying that there's an inconsistency there, yes.

PN240

And despite that mismatch you want the same relativities to be applied to the 2003 agreement don't you?---Well, the agreement says where there's any inconsistency the agreement applies.

PN241

So if there's any inconsistencies then that means that the award should not apply to the 2003 agreement, isn't that right, in terms of those relativities?---4.18 says that the agreement is supplemented by the award.

PN242

But we've already established that there's different rates of pay paid under the award versus under the 2003 agreement?---Yes, that's the inconsistency.

PN243

There's nowhere in the 2003 agreement which says the same relativities under the Metals Award is to apply to the 2003 agreement, is there?---No. That was dealt with in the award and as part of - in schedule D as part of Senior Deputy President Keogh's decision.

PN244

But that decision is dealing with minimum award rates of pay isn't it?---That's where the competency standards were built from, from the award.

PN245

From the minimum award rates of pay?---Yes.

PN246

Now, at paragraph 27 of your statement you say that Mr Syme withdrew support for reclassifications of AMWU members. That's not correct is it?---We say it is. The discussion I had with the delegates was that Mr Syme has said that he's not going to pay anything, that he wasn't going to implement the standards, and that if our members want it then they can chase it.

PN247

But there never had been a commitment from the cooperative to increase wages as a result of the metal competency standards being implemented, had there?---Well, that was always going to be a matter that was under dispute.

**** STEVE MURPHY XXN MS FLYNN
PN248

But there was never any agreement was there?---There was never any written agreement. As I said, that matter was always going to be a matter that could well be put into dispute as well could have been the outcomes of the skills audits.

PN249

But in terms of the five step process that you referred to earlier in your statement, that was followed wasn't it, because there was an outcome that was given to members in terms of what their C classification for the purposes of the award was, isn't that right?---We're saying that implementation, the step five which talks about aligning people with the skills that they've got with a C outcome and the relevant rate of pay wasn't followed through.

PN250

But there's nowhere in the - even if we were to look at the implementation guide, which says a wage increase must be given as a result of the implementation process, is there?---I haven't got the implantation guide in front of me.

PN251

Well, can I hand to you a copy of the implementation guide. Can I take you to clause 3.4 of the implementation guide?---3.4, yes.

PN252

Can you just read out the first sentence that's involved under 3.4?---

PN253

The implementation of the competency standards in your enterprise does not itself justify wage increases for existing employees.

PN254

So given that statement there is no mandatory requirement to increase wages under a certified agreement where above award rates of pay are paid to employees is there?---Well, I think you need to read it correctly. What it says is, just because you implement it the competency standards doesn't justify that you'll get a wage increase.

PN255

That's right?---And then it goes on to talk about that it's relevant to whether or not there's a disagreement about what the outcomes of the skills audit process was and whether there's a disagreement about what the relevant classification that an employee came out on.

PN256

That's right. But also it says that there shouldn't be any double counting should there, when there's already over award rates of pay paid to employees?---Where does it say that?

PN257

If you were to look at the next large paragraph that's indented?---Yes.

**** STEVE MURPHY XXN MS FLYNN
PN258

It says at the end of that, the last part of the sentence:

PN259

The implementation of the competency standards shall not lead to double counting.

PN260

Is that what it says?---Does it say what?

PN261

Is that what the words are saying:

PN262

The implementation of the competency standards shall not lead to double counting.

PN263

?---Double counting, yes, it says double counting.

PN264

Now, in terms of paragraph 29 of your statement you say that you're seeking for your members to be paid the appropriate rate of pay as a result of the competency standards being implemented. So if it is the case that at the moment, sorry, a fitter and turner under the 2003 agreement as a result of the last pay increase was paid $752.60 per week, do you agree with that?---I don't have it in front of me so I can't say yes to that.

PN265

And versus - if we were to take the C10 rate of pay under the Metals Award, a person who is at a C10 level under the Metals Award is only paid $578.20 per week?---Yes. There's an inconsistency there.

PN266

But the fact is isn't it, that people who are fitters and turners who work for the cooperative are paid above that C10 rate of pay, isn't that right?---The award C10 rate of pay and the agreement C10 rate of pay, yes, are different.

PN267

No. What I'm asking you is that - because we've already established, Mr Murphy, that there is no C10 rate of pay in the 2003 agreement, isn't that right?---There's no C10 rate of pay recorded in the agreement, no.

PN268

So all I'm asking is, if a person who is classified as a C10 and is paid the minimum award rate of pay, if they're paid $578.20 per week, but the fitters and turners and the welders who are subject to this application are paid $752.60 per week under the 2003 agreement, then they're being paid well above the award rate aren't they?---They're above the award rate, yes.

**** STEVE MURPHY XXN MS FLYNN
PN269

Now, if I can just take you to paragraph 30 of your statement. You say that the company refused to meet with the unions that are members of the recognised single bargaining unit. That's not correct though is it?---My understanding is that is correct.

PN270

But members of the AMWU and in fact Mr Dennis Knowle were invited to meetings to discuss the next agreement, isn't that right?---I was not in attendance. My understanding of that meeting was that employees were - it wasn't a meeting, it was an instruction at that meeting that employees had until Friday afternoon to sign off on an agreement that had been made.

PN271

So when you're talking in paragraph 30, you're talking though about you personally did not attend any meetings, is that right?---No, that's not correct. What 30 talks about is that the AMWU through the single bargaining unit with the CFMEU and ETU had developed a log of claims and we were seeking to have a meeting with the company to discuss that. The only meeting that took place was at short notice with the delegates where the company made those demands.

PN272

Well, if I can take you back to paragraph 24 of your statement, you're talking there about having a discussion with Mr Syme about an enterprise agreement aren't you, the next enterprise agreement?---Mr Syme raised that issue of the next agreement, and that's where the letter came from. And if you look at 27 it deals with Mr Syme's response to that letter.

PN273

And can I take you to paragraph 21. You say we discussed - sorry, I withdraw that. In terms of - excuse me, Commissioner.

PN274

THE COMMISSIONER: That's all right.

PN275

MS FLYNN: If I can show you an email, Mr Murphy. This is attachment G to Mr Syme's statement, Commissioner. I'm sorry I don't have extra separate copies.

PN276

THE COMMISSIONER: Attached to Mr Syme's?

PN277

MS FLYNN: Yes, attachment G. Have you had a chance to read attachment G?
---Yes, just briefly I have.

PN278

That email was sent to you wasn't it?---Yes, I was cc'd in it, I saw my name there.

**** STEVE MURPHY XXN MS FLYNN
PN279

So you were given an opportunity to attend a meeting weren't you?---That meeting was to sign the agreement. And I was actually included in the email from the ETU, not from the company.

PN280

If I can take you to attachment F, which is the page before?---Yes.

PN281

That email also was sent to Dennis Knowle, you can see that?---Yes, it was responding to one Dennis had sent, yes.

PN282

And in terms of, about a P&C meeting the invite was in relation to?---That's correct.

PN283

And you can see at the bottom of the email that Mr Knowle says that the AMWU is committed to a union collective agreement, do you see that?---Yes.

PN284

But the AMWU decided not to sign the next union collective agreement, isn't that right?---Our members hadn't voted on it or read it.

PN285

But the employees voted on the agreement, isn't that right?---Not when this request came through.

PN286

No, but in terms of when the agreement was voted on, employees voted on it?
---That's correct.

PN287

And a valid majority approved the agreement didn't they?---That's correct.

PN288

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

PN289

THE COMMISSIONER: Thank you. Thank you, Mr Morrison.

PN290

MR MORRISON: Thank you, Commissioner.

<RE-EXAMINATION BY MR MORRISON [11.43AM]

PN291

MR MORRISON: Just some points that arose by Ms Flynn. With the 2003 agreement at clause 9, the wages, just could you confirm that the increases for the classifications, there are increases for all classifications?---Yes, the wage increases that are spelled out, the 3½ per cent wage increases apply to all the different classifications in the agreement.

**** STEVE MURPHY RXN MR MORRISON
PN292

And you recall Ms Flynn asking you about clause 9(f) of that agreement?---Yes.

PN293

And asking you whether you had ever raised 9(f) with management?---Yes.

PN294

Have you ever raised the specifics of clause 9(f) with management?---Not the specifics of it. Up until the dispute coming here the issue of the flow on of the wage increase had not officially been disputed. The discussion that took place in early January that I spoke about was the first time the issue of the wage increase came up as part of the discussions, and that flowed from the discussion that Mr Syme had with Dennis Knowle that said 5 per cent of the award rate is what I'll give you, and we weren't happy with that. Up until the company's submissions that came through we weren't aware, or I wasn't aware that they were saying that there's no provision in the agreement whatsoever for wage increases.

PN295

Now, Ms Flynn also raised with you regarding minimum award rates of pay and salary progression there. What is your experience with workplaces above the minimum award rate but applying the classification differentials?

PN296

MS FLYNN: Objection. How is that relevant in terms of what other companies do? They may have different clauses in their certified agreement which may allow for a wage increase, but that's not the situation that we have here.

PN297

MR MORRISON: The question would be, Commissioner, is that Ms Flynn was saying that you either have your agreement with specifically C10 or - - -

PN298

THE COMMISSIONER: Well, rather than having a submission, ask the - I acknowledge Ms Flynn's submission will be covered in submissions, as yours will be, but ask Mr Murphy the question. I just don't want a submission while Mr Murphy is in the witness box. I understand where you're coming from in terms of the question. I understand Ms Flynn's objection as well. But ask Mr Murphy the question that you were going to put to him.

PN299

MR MORRISON: Again?

PN300

THE COMMISSIONER: Yes, please.

**** STEVE MURPHY RXN MR MORRISON
PN301

MR MORRISON: Thank you. Mr Murphy, Ms Flynn raised the company's minimum award rate applying the classification differential. Do you have experience about the company's specifically above the award rate and applying the classification differential?---Yes. My experience is with a number of engineering workshops that I look after, predominantly with boilermakers and fitters on the job. The competency standards are implemented from whatever the negotiated wage increase is at that particular enterprise, because the enterprise bargain was just what happened, that that be the base rate for the tradesperson, and that employees that come in and hold additional skills that go through the process either get paid a 5 per cent allowance or a 10 per cent allowance depending on their skills - it more for electricians - or they have the formal classifications there.

PN302

THE COMMISSIONER: So the weight to be attributed to that answer will be based on the specifics between these parties?

PN303

MR MORRISON: Yes. Thank you. And finally, Mr Murphy, Ms Flynn gave you a document which is Mr Syme's witness statement, and she referred you to attachment F?---Yes.

PN304

And that appears to be an email from Bill Syme addressed to various parties?
---Yes.

PN305

And it has:

PN306

Please confirm in writing prior to this meeting, one, who will be attending on behalf of the union, and two, whether your union wants to be part of a new union collective agreement.

PN307

?---Yes.

PN308

Did you respond to this email from Mr Syme?---It was never sent to me.

PN309

Are you aware whether the AMWU responded to this email?---I'm not aware that the AMWU did other than a response from the delegates.

PN310

No further questions.

**** STEVE MURPHY RXN MR MORRISON
PN311

THE COMMISSIONER: Thank you, Mr Morrison. Thank you, Mr Murphy, you're free to stay, but you cannot discuss the evidence prior to the other witnesses giving evidence. Thank you.

<THE WITNESS WITHDREW [11.49AM]

PN312

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

<SHORT ADJOURNMENT [11.49AM]
<RESUMED [11.58AM]
<KEN CRICHTON, SWORN [11.58AM]
<EXAMINATION-IN-CHIEF BY MR MORRISON

PN313

MR MORRISON: Mr Crichton, for the record could you please give us your name, your address and your occupation?---Ken Crichton (address supplied). I'm a fitter and turner.

PN314

And, Mr Crichton, are you an official of the AMWU?---I'm an AMWU delegate for the Condong mill.

PN315

And what does the role of a delegate entail?---Looking after the industrial welfare of the blokes that work at the mill.

PN316

Thank you. Do you recall attending a meeting with Mr Murphy and meeting at that time with Mr Syme regarding the forthcoming enterprise agreement and the competency standards, and this meeting was approximately January 2006?---Yes, I do.

PN317

I wonder if you could tell us what occurred at that meeting?---We talked about the upcoming enterprise bargaining agreement, competency standards, whether C10s and C9s, the applicable rates of percentage, 100 per cent for C10, 109 for - I mean 105 per cent for C9, we even talked about a separate maintenance agreement.

PN318

And specifically when speaking about the differentials between the various classifications what were the details of the discussion as you recall it from Mr Murphy and from Mr Syme?---Well, as far as I can recall they discussed the shop rate being a C10 I think, and that's about all I can recall.

PN319

And do you recall any other outcomes from that meeting?---No, I can't recall.

PN320

No further questions, Commissioner.

PN321

THE COMMISSIONER: Thank you, Mr Morrison. Ms Flynn?

PN322

MS FLYNN: Commissioner, would we be able to have a short adjournment just to get some instructions since this is the first time I've heard the evidence from Mr Crichton?

PN323

THE COMMISSIONER: All right. Is Mr Crichton able to stay - sorry, are you asking for a short adjournment now or you want to do that over the luncheon adjournment?

**** KEN CRICHTON XN MR MORRISON
PN324

MS FLYNN: I don't mind if we take an early lunch break and I can do that then, that might be easier.

PN325

THE COMMISSIONER: All right. Well, the alternative is, because we have to take the lunch break, we have to be out of - we'll just go off the record for a minute.

<SHORT ADJOURNMENT [12.01AM]
<RESUMED [12.04AM]
<RICHARD JEFFREY ACKERS, SWORN [12.04AM]
<EXAMINATION-IN-CHIEF BY MR MORRISON

PN326

THE COMMISSIONER: Does Mr Ackers have a copy of his statement?

PN327

MR MORRISON: Yes, he does.

PN328

THE COMMISSIONER: He does, thank you.

PN329

MR MORRISON: Mr Ackers, for the record could you please give us your name, your address and your occupation?---My name is Richard Jeffrey Ackers (address supplied). I'm a boilermaker at Broadwater Sugar Mill.

PN330

Mr Ackers, do you recall making a witness statement?

PN331

THE COMMISSIONER: I'm sorry, Mr Morrison, you're seeking to tender that aren't you?

PN332

MR MORRISON: I'm about to.

PN333

THE COMMISSIONER: All right, thank you.

PN334

MR MORRISON: Do you have in your possession a witness statement made on your behalf and filed with the Commission on 25 January 2007?---I do.

PN335

You have had an opportunity to read that document?---I have.

PN336

Do you wish to make any changes to that document?---Only one change on number 5 - sorry, number 4. We do have a C8 at Broadwater Sugar Mill.

PN337

So:

PN338

My members and I participated in a work skills audit which identified that some of us were C10s and some were C9s and some were a C8.

PN339

?---Yes.

PN340

And one was a C8?---Yes.

PN341

If we could make that change?---We've got one C8.

**** RICHARD JEFFREY ACKERS XN MR MORRISON
PN342

Any other changes, Mr Ackers?---No.

PN343

With that change is it your evidence that this is a true and accurate document?---It is.

PN344

Commissioner, can I have it marked?

PN345

THE COMMISSIONER: Thank you.

EXHIBIT #3 STATEMENT OF RICHARD ACKERS

PN346

MR MORRISON: Mr Ackers, I'm just going to ask you just one or two questions about that, and then Ms Flynn will be asking you some questions. If I could take you to your witness statement and if I could take you to paragraph 4 of your witness statement. And you talk about "And we expected that the co-op would honour the structure of the agreement and remunerate my members according to their classification." What exactly do you mean by that?---The remuneration, we just felt that we should be remunerated as per our award.

PN347

Do you mean that you would revert to the award rate?

PN348

MS FLYNN: Objection, leading.

PN349

MR MORRISON: What do you mean by remunerating as per the award?---We just wanted to be remunerated as what was in our award, in the award document.

PN350

Which particular part of the award?---Could you explain what you mean?

PN351

Which particular part of your award?---The Metal Trades.

PN352

That's fine. Now, again, if I could still take you to your statement, in paragraph 6 you say "I've had discussions with many of my members."

PN353

MS FLYNN: Could I just object to reading on the record paragraphs. He's got a copy of his statement in front of him.

PN354

MR MORRISON: What do you mean by that paragraph?---What we mean there is that the - we've had EBAs that had the classifications in the EBAs, and that we wanted those, you know, we agreed to have that in the EBA, we wanted it acted upon. And it was not only one EBA, it was a number of them.

**** RICHARD JEFFREY ACKERS XN MR MORRISON
PN355

And when you say you have been approached, what do you mean by that?---As a delegate members come and see me or we have meetings, and they quite often ask - it's still not uncommon for us to be - me to be asked a couple of times a week what we're doing with the classifications by my members.

PN356

No further questions.

PN357

THE COMMISSIONER: So just on that, what do you say that the cooperative specifically agreed to?---They - what, with the classifications you're talking about?

PN358

I'm just referring to your paragraph 6, is there an outcome supposedly agreed to by the parties to several EBAs?---Okay, yes. Well, the classification section was in the EBAs up until the last one just done. We did audits. I've had one audit in 2005 and there was another one previous to that, about 1998 approximately, where we done audits, skills audits, and we expected that the EBA would be followed through with and we'd get our positions so far as, you know, C9 and C10, and get remunerated as such.

PN359

All right, thank you. Ms Flynn?

<CROSS-EXAMINATION BY MS FLYNN [12.10AM]

PN360

MS FLYNN: Mr Ackers, in paragraph 3 of your statement you refer to structures set out in the agreements, in our agreements. Can you tell me what structures you're talking about in the 2003 agreement?---In the 2003 agreement. There was a section in the 2003 agreement that referred to classifications, and it was in the EBA and we were wanting to follow through with, and we were audited with that agreement, and we just wanted that followed through with.

PN361

So is that the section which just lists all the classifications, is that what you're talking about?---No. There's actually a section in there that mentions classifications. It's not only a list, there's a piece in there that sort of mentions classifications as such, and I'm not sure whether it's in the same paragraph or, thinking back, I'm not sure if it's the same paragraph or not.

PN362

But can I just show you a copy of the 2003 agreement?---Yes.

PN363

Can I just take you to page - this says 5 of 9 down the bottom, on the very bottom of the page it says 5 of 9. It's probably about the third page in?---I should be better at looking at this than I am. Yes, 5 of 9, yes.

**** RICHARD JEFFREY ACKERS XXN MS FLYNN
PN364

And does that say clause 9, wage increases, at the top of that page?---Wage increases, yes.

PN365

Then if you turn to the next page which says page 6 of nine on the bottom of it?
---Yes.

PN366

Is that what you're talking about, where the C classifications are mentioned there, when you're talking about the structures?---Yes, that's the classification levels, yes.

PN367

And so is that what you're talking about when you're referring to structures?
---Well, that's, yes, the C9s, C8, yes, structure.

PN368

So when you said there was another clause that referred to the classifications what clause were you talking about?---I'm sure there's another - there's mention - I thought or my recollection was there is another paragraph in there somewhere that mentions the - and if I go to it now - - -

PN369

There's no - - -?---That's what I'm actually - that's basically the - - -

PN370

The C classifications?---Yes, the C classification, that's basically what we're looking at.

PN371

Because there's no clause in the agreement that refers to the fact that wage increases will be given once the metal competency standards are implemented is there?---Not that I'm aware of, no.

PN372

And you say at paragraph 3 that you "understand the AMWUs position is completely consistent with what is in our agreement." What do you mean by that?---Our position is that we get classified into our classifications through a skills audit and that we get remunerated depending on our audit, our classification.

PN373

And that's your belief isn't it?---That is my belief.

PN374

But in terms of under the 2003 agreement you're actually paid above the award rates of pay aren't you?---We are.

PN375

And so you're aware that the Metals Award, that sets out the minimum rates of pay doesn't it?---It does, yes.

**** RICHARD JEFFREY ACKERS XXN MS FLYNN
PN376

But even though you're getting paid a higher rate of pay under the 2003 agreement you still want that rate of pay lifted further, is that right?---Yes.

PN377

Now, in paragraph 5 of your statement you say you think, you know, you should receive recognition and pay for certain skills?---Yes.

PN378

But we've already established that you're, under the 2003 agreement, being paid above the award rate of pay aren't you?---We are paid a shop rate of pay.

PN379

But you're not paid an award rate are you?---We're paid above award.

PN380

Yes, you're paid above award. So you are receiving recognition for your skills aren't you?---Not necessarily, no.

PN381

But if you're being paid above the award rate of pay then you're getting paid more than what other people on the C10 level under the award are getting paid aren't you?---If you come in off the street as a base C10, yes, you're getting paid the shop rate, which is what you're talking about.

PN382

If you are an employee that works in your job and you get employed by the cooperative, you get paid the enterprise rate of pay set by the 2003 agreement don't you?---Yes.

PN383

At paragraph 6 you refer to an outcome that was supposedly agreed to by the parties. Do you see that there?---Yes.

PN384

But you use the word supposedly because there is no agreement you can point to about increasing wage rates can you?---We're talking about skills audit. We were talking about skills audit there.

PN385

But you can't point to any, say written agreement between the AMWU and the cooperative to increase wages as a result of the metal competency standards being implemented?---No.

PN386

Because in fact the cooperative has always maintained that even if it was to introduce the implementation of the competency standards that wages would not be affected, isn't that right?---They stated that. Then when we had the skills audit in 2005 wages were mentioned and the consensus was we'd talk about wages later.

**** RICHARD JEFFREY ACKERS XXN MS FLYNN
PN387

But that's not right is it?---That is right.

PN388

Because the cooperative has issued letters to the AMWU delegates about there being no further wage increase paid to employees, isn't that right?---That's their position.

PN389

Finally, you say that the cooperative can't be trusted to honour its word?---No, I didn't say - - -

PN390

In paragraph 6 of your statement?---Yes. That's members, and I'm a conduit for the members.

PN391

Right. But in terms of, there's no provision though that you can point to in the agreement which says the cooperative agreed to increase wages as a result of the metal competency standards being increased can you?---No.

PN392

Thank you. No further questions.

PN393

THE COMMISSIONER: Thank you. Mr Morrison?

<RE-EXAMINATION BY MR MORRISON [12.18AM]

PN394

MR MORRISON: Do you recall some questions regarding the C10 classification with regard to the - as distinct from the wage level that tradesmen receive?---Yes.

PN395

Do you know what a C10 level is?---Base tradesman level.

PN396

Yes. You made a change to your agreement which included a C8 as well as a C9?---I did.

PN397

When did the members that you represent receive any additional rates of pay or any additional allowances above what the C10s receive?

PN398

MS FLYNN: Objection. How does this arise under cross-examination?

PN399

MR MORRISON: Ms Flynn asked questions about the rate of pay at the workshop.

PN400

THE COMMISSIONER: All right. I think it is going a little bit further but I'll allow it, and I'll allow Ms Flynn to - I'd like to hear the evidence. I might go back to the answer you gave. There was a change to the agreement you say to introduce the C8 and C9.

**** RICHARD JEFFREY ACKERS RXN MR MORRISON
PN401

MS FLYNN: I think Mr Morrison meant - didn't you mean change to the statement?

PN402

MR MORRISON: Yes, sorry.

PN403

THE COMMISSIONER: A change to the statement, yes, all right. Thank you, Ms Flynn.

PN404

MR MORRISON: Do any of your members get paid additional moneys above the rate that you as a C10 would receive?---For skills used are you talking about?

PN405

For skills that they use?---The welders with pressure tickets get paid an allowance, a small allowance, something like 10 cents an hour or in that area. I'd have to check.

PN406

Is your member that's identified as a C8 receive additional money?---He only receives the money as a pressure welder, he doesn't receive - he is actually currently working as on tab up in the drawing office and he receives no extra money for doing those - doing that job.

PN407

If I could take you to the agreement, the 2003 agreement that Ms Flynn handed you up?---Yes.

PN408

If I could take you to that wages clause, clause 9?---Yes, 5 of 9 is it?

PN409

Yes. At the end of those classifications you will see a series of numberings, (a) (b) (c) (d) (e) alphabetical, (a) (b) (c) (d) (e) (f)?---You're talking about page 6 of 9?

PN410

Yes. Do you see it "The wage increases in subclause (a) hereof shall be payable as follows," after C14, engineering/production employee level 1?---Yes. There's nothing after that in this copy.

PN411

On the next page?---So where am I looking now?

PN412

Have you got (b)?---Yes.

PN413

Yes. And then so forth, and then you've got (c) further, (d) (e) (f)?---Yes.

**** RICHARD JEFFREY ACKERS RXN MR MORRISON
PN414

And the answer you gave Ms Flynn about those classifications, how do you read (f) into - - -

PN415

MS FLYNN: Well, objection. Leading.

PN416

MR MORRISON: How can I raise (f) without mentioning it?

PN417

THE COMMISSIONER: Well, I understand that you're trying to find out - I'm not sure if I can advise you in terms of the cross-examination, but you're looking for the source aren't you?

PN418

MR MORRISON: I'm sorry?

PN419

THE COMMISSIONER: The earlier questions you asked your earlier witnesses in terms of the source of the increase, is that - - -

PN420

MR MORRISON: No. I'm just seeking how he relates (f) to the classification in line with the answer he was asked about the classifications of the workplace.

PN421

MS FLYNN: Well, I don't think it's appropriate that Mr Ackers hears it, but why specifically go to that subparagraph.

PN422

THE COMMISSIONER: Well, perhaps you could broadly put the questions to him in relation to the issues that you're raising about - open ended questions in relation to it.

PN423

MR MORRISON: I will attempt to frame a question, and speak to Mr Murphy for a second.

PN424

THE COMMISSIONER: We'll go off the record while you do that.

<OFF THE RECORD

PN425

THE COMMISSIONER: The witness Mr Ackers has rejoined the hearing, and I will just say for the record that there has been some discussions between the representatives and the Commission, and it has been agreed that Mr Morrison will take the witness to the particular provision. Certainly there's been some objection and qualification about this process from Ms Flynn. Ms Flynn has agreed to this particular process but will address, as will Mr Morrison, the particular relevance or application of the evidence arising from these particular questions. Is that the situation, Ms Flynn?

**** RICHARD JEFFREY ACKERS RXN MR MORRISON
PN426

MS FLYNN: Yes, that's so, Commissioner.

PN427

THE COMMISSIONER: All right, Mr Morrison?

PN428

MR MORRISON: Thank you.

PN429

Mr Ackers, if I could take you to clause 9(f) of the agreement, and if you take the opportunity to read that clause. In light of the answers you gave Ms Flynn with regard to various things within the agreement how do you view clause 9(f)?
---That was the clause and I said there was something else in there that I wasn't 100 per cent sure on about going to the - and that was the paragraph that I was actually thinking of. It actually mentions the classifications in there.

PN430

THE COMMISSIONER: So have you got that clause in front of you 9(f)?---I do, yes.

PN431

MR MORRISON: One more question. And you also spoke about the skills audit?---Yes.

PN432

Do you recall answering questions on the skills audit?---Yes.

PN433

You participated in that skills audit?---I've participated in two skills audits.

PN434

And in fact your membership participated in skills audit?---They have.

PN435

And for what purpose did you participate in the skills audit?---We were just - to gain our skills levels to find out where we were rated within the classification system, and to change over the classification and with the assumption that we were going to get paid for our levels, the various levels.

PN436

No further questions, Commissioner.

PN437

THE COMMISSIONER: Just on that, why were there two skills audits?---Well, actually, Commissioner, there was - I was talking to another - my previous delegate before I came - before I was the delegate, and he said there's actually been three. But I know of two that I've participated in.

PN438

So when was the first one?---Look, I can't tell you the exact date, but he said it was - - -

**** RICHARD JEFFREY ACKERS RXN MR MORRISON
PN439

2005?---No. There was one audit about 1998 that I participated in. I was not a full time employee at that time, I was a fixed term employee. I participated in that one, and I'm only approximately 1998, I'm just not 100 per cent sure of the date or the year, and there was another one in 2005 that we all participated in. And as I said, my previous delegate said he - actually the delegate right back, there was another one that I'm not aware of, but I don't know if there was or not, but at least two I'm sure of.

PN440

Thank you, Mr Ackers.

PN441

MR MORRISON: I have a question out of the questioning.

PN442

THE COMMISSIONER: Yes.

PN443

MR MORRISON: What were the differences between the two skills audits?
---Well, I came at it from a different angle. One was as a fixed term employee and one as the delegate. The skills, second skills - the first skills audit was quite a big one and it was complicated, and the second one was one that we put together with our meetings with the management that was a more brief and more specific type of skills audit.

PN444

Nothing further from me.

PN445

THE COMMISSIONER: Thank you, Mr Morrison. Now that we're out of the normal process, but I did give Ms Flynn some ability to re-examine, so if you think that she is moving outside of the latitude for that, although I have accommodated your request you'll indicate - - -

PN446

MR MORRISON: Certainly. I fully understand.

PN447

THE COMMISSIONER: Thank you. Ms Flynn?

<FURTHER CROSS-EXAMINATION BY MS FLYNN [12.31AM]

PN448

MS FLYNN: Mr Ackers, clause 9(f), you didn't mention that in your original statement did you?---Yes, I did. I'm sorry, no, no, not in this one, no.

PN449

No, you didn't mention it did you?---I mean when I was talking earlier about the classification levels when you were discussing it.

**** RICHARD JEFFREY ACKERS FXXN MS FLYNN
PN450

And did you write this statement, did you put it together?---I put a brief down and then I was just given it to read and, yes, they - yes, read it, and it's my statement.

PN451

But you didn't mention clause 9(f) of the agreement?---No.

PN452

And that's because at the time you wrote this statement clause 9(f) wasn't a relevant thing for you was it?---No. But when you were talking to me earlier and you pointed me to this page here, I'd stated that there was - I'm sure there was something else in the EBA that mentioned it, and that was the clause that I was thinking of.

PN453

But even though in paragraph 3 of your statement you referred to structures set out in the agreements, you didn't go so far then as to refer to clause 9(f) did you?
---No.

PN454

Because you didn't know anything about clause 9(f) did you?---That's right, no.

PN455

MR MORRISON: Commissioner, there's a difference between what was following on from the questioning and the latitude you gave her, and a whole new go at him - - -

PN456

THE COMMISSIONER: Well, I think they are questions in relation to clause 9(f)?---I'm happy answering it because it's true. I mentioned it when I answered the first question about when you pointed me to this page, and I said if you look at the transcripts later that I did say there was something else written in there but I couldn't put my finger on it at that stage.

PN457

MS FLYNN: But in terms of when you prepared your statement you did not refer to clause 9(f) of the agreement did you?---No.

PN458

And your evidence to me today was that it's not in the agreement, the 2003 agreement, that the cooperative is obligated to pay a wage increase as a result of the metal competency standards, isn't that right?---That's correct.

PN459

And you still maintain that evidence?---I maintain that's within the agreement. We operate within the agreement.

PN460

That's right?---And whatever is written in the agreement is what I mean.

**** RICHARD JEFFREY ACKERS FXXN MS FLYNN
PN461

And so there's nothing in the agreement that says that as a result of implementing the metal competency standards that a wage increase will be paid?---Yes. No.

PN462

Thank you. No further questions.

PN463

THE COMMISSIONER: All right, nothing further for this witness?

PN464

MS FLYNN: No, thank you, Commissioner.

PN465

THE COMMISSIONER: All right, thank you, Mr Ackers, you're free to go.

<THE WITNESS WITHDREW [12.33AM]

PN466

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

<LUNCHEON ADJOURNMENT [12.33AM]
<RESUMED [2.09PM]

PN467

THE COMMISSIONER: Thank you. Right, can we have the evidence of
Mr Crichton.

PN468

MR MORRISON: Yes, Mr Crichton is available. Is that - - -

PN469

MS FLYNN: I obtained some further instructions and there's no questions arising in cross-examination, Commissioner.

PN470

THE COMMISSIONER: All right. On that basis then, thank you. It was the process that was agreed and instructions were necessary. Thank you,
Mr Crichton, you're free to go. All right, which brings us to Mr Noel, is it?

PN471

MR MORRISON: Mr Morrison, yes.

PN472

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

<OFF THE RECORD
<DENNIS NOEL, SWORN [2.12PM]

PN473

THE COMMISSIONER: Thank you, Mr Noel. Thank you, Mr Morrison.

<EXAMINATION-IN-CHIEF BY MR MORRISON

PN474

MR MORRISON: Thank you, Commissioner.

PN475

Mr Noel, for the record could you give us your name, your address and your occupation, please?---My name's is Dennis Noel, (address supplied) and my occupation is fitter and machinist.

PN476

Thank you. Mr Noel, do you have in your possession a copy of a witness statement in your name?---I certainly do.

PN477

Have you had an opportunity to read that statement?---I certainly have.

PN478

Do you wish to make any changes to that statement?---No.

PN479

Is it your evidence to us today that it is a true and accurate record?---Yes.

PN480

I ask that - - -

PN481

THE COMMISSIONER: Thank you, Mr Morrison.

EXHIBIT #4 STATEMENT OF MR NOEL

PN482

MR MORRISON: Thank you. Mr Noel, I'll be taking you to a few questions of clarification in your statement and then Ms Flynn will be asking you questions?
---Certainly.

PN483

Mr Noel, if I could you to paragraph 4 of your statement where you talk about the missing parts of the 97 agreement being important. Could you tell us why you believe it is important?---Because in that paragraph which I found out later on was not listed with the Commissioner or was absent from the Commissioner's copy, stipulates that there can be pay rises under a skill based classification to rectify wages. I can go straight from the EBA if you require.

PN484

No, I don't think we need to. They are the attachments DN1?---That's it.

**** DENNIS NOEL XN MR MORRISON
PN485

If I can take you to paragraph 9 of your statement where you talk about a percentage differential?---Yes, at that point in time I was having discussion with Bill Syme one on one and it was raised that maybe if we put in writing to the company that the metal workers would agree to a pay rise only equivalent to the award increases he could submit that back to his management, but I told him at that point in time I couldn't agree to that because it's up to the members to call that, not me, and that's where it was left and I never gave him that undertaking in writing.

PN486

I'm just not clear, award increases?---Yes, where you have a C10 shop rate and the increase is 10 per cent of the shop rate and award increase is 10 per cent of the award rate increase, that's what he wanted in writing from us.

PN487

The award - I'm just not clear. Do you mean the award rate as - - -

PN488

MS FLYNN: Well, objection. Perhaps if he could put the question another way.

PN489

THE WITNESS: I could explain it a bit clear if that's okay?

PN490

MR MORRISON: That might be appropriate, Mr Noel?---I can't - Commissioner, I'm not quoting exact figures because I don't know the exact figures, but say the figure of the shop rate at the present time is $800 a week,
10 per cent of $800 to me is $80, right. If the award rate was $400 then the increase then would be $40. That's the difference in the two different increases that the company, Bill, asked that I put that in writing to the company as a submission to reach an agreement on wage increase and I told him I couldn't.

PN491

So it wasn't the wage rise of the award but the wage rise of the agreement that was to be applied?---At all our outcomes we've always said that 10 per cent of the Condong shop rate today.

PN492

So do all employees under the Metals Award receive the same rate of pay?---No, they do not.

PN493

What do you mean by that?---Well, we have some people for argument sake that receive less than a C10 rate. If we're using a tradesman rate at the moment as a C10 rate there is people employed by this company to receive less than a C10 rate on classifications such as third class machinists. Now, when that was negotiated back many years ago a third class machinist was a percentage of first class machinists. These were people doing tradesman type work on mill maintenance in the slack season. A more relevant on is there is a letter that's been circulated to the AWU members and I can't quote it exactly because I don't have a copy, but where they were told to do the retail change over on a machine that was previously done by tradesmen and they would receive I think it was 95 per cent of a tradesman's money while they were doing that work on that machine that a tradesman used to do.

**** DENNIS NOEL XN MR MORRISON
PN494

Was this 95 per cent of the award rate or the agreement rate?---The agreement rate.

PN495

How were these tradesmen not paid to the C10 rate?---These weren't tradesmen. These were below tradesmen.

PN496

How was their wage determined?---On a percentage of what the tradesmen were on.

PN497

On a differential of the tradesmen?---Yes, that's to my knowledge.

PN498

Are there any employees that receive above the tradesman's rate?---There is but they're called allowances. We have tradesmen that they give special allowances above skills that they're using as tradesmen.

PN499

And what are these allowances?---Different welding tickets, different responsibilities.

PN500

No-one else receives above the, if you like, tradesmen's rate?---Not to my knowledge.

PN501

Now, if I could take you to paragraph 11 of your statement you talk about the implementation. What was the implementation to your knowledge supposed to be?---The implementation to my knowledge if the implementation of the competency standards per the implementation guide set out by the Competency Standard Board.

PN502

And how did you understand that was to occur?---That was to occur on the company's requirements of what they require as far as job skills, then followed by an audit of the employees classification as far as what their abilities are to answer those skills and then the final audit would be that the competency standard auditor would set out their appropriate classification, whether it's C10, C9, C8.

PN503

And to your understanding once that had occurred what was the next step?---The next step after that was negotiating the wage increase to suit those classifications. Can I just add something to that? At all times the company has wanted to negotiate the wage increase before the first step of the implementation and my memory is it's about the fifth step. So at no time did the union agree to implement the wage increase negotiations before the classification was implemented.

**** DENNIS NOEL XN MR MORRISON
PN504

And then if I could take you finally to paragraph 14, you talk about a classification audit conducted on behalf of the sugar mills for both trades by an AIG representative, Mr Till.

PN505

THE COMMISSIONER: That's Mr Tiller, isn't it?

PN506

MR MORRISON: Is it Mr Tiller?---No, it's just Mr Till, isn't it? I stand corrected.

PN507

THE COMMISSIONER: That's all right.

PN508

MR MORRISON: To your knowledge was it Mr Till?---Tiller.

PN509

THE COMMISSIONER: I don't know that a lot turns on it anyway.

PN510

MR MORRISON: No?---I think Mr Syme is right, I think it is e-r at the end.

PN511

How did Mr Till/Tiller conduct the classification audit to your recollection?---To my recollection, can I just go back a little bit prior to Mr Tiller doing the audit, why he did it for us? The reason he did it for us was at one stage we were using the MISTAS which is the union supported organisation for the reclassification. Mr Syme at the end of the first audit that he was involved in thought that the outcomes were exaggerated, and for want of another word, propped up. So he agreed to another audit, both done with the AIG and I think it was Brunskill from MISTAS for us. At that point in time he said he didn't want to pay for our side and after discussions with the union we sort of agreed that AIG would. Because we had nothing to argue about at that point, we agreed that AIG could do the full audit on their own. So at that first meeting with AIG, which is David Tiller was there, we set out - what we tried to do was set out what the company's requirements was and the management at that meeting had the engineers at the three mills and they set out what the company required. We started off with three classifications and dropped it down to two because the third classification fitter/welder was quite obvious even on Mr Tiller's reading of it. He told the company that that would have to be a C9 classification because it involved two skill levels, both fabricate and mechanical. So we dropped that and asked the company representatives to sit down with the employee representatives which was the three delegates and work out the company's requirements of what the skills required by the company was to be done, which we did and that's why we were confident that the appropriate classifications would come out because we knew with the integrity of the implementation that the skills in addition to C10 would be recognised.

**** DENNIS NOEL XN MR MORRISON
PN512

And then what did you envisage would be the outcome after this skills audit?
---After the audit was given back to the employees and employer where classifications were C10, C9, C8s, then the negotiations on what increases of C9 or C8 they get would be up for negotiation.

PN513

No further questions.

PN514

THE COMMISSIONER: Thank you, Mr Morrison. Ms Flynn, thank you.

PN515

MS FLYNN: Thank you, Commissioner.

<CROSS-EXAMINATION BY MS FLYNN [2.24PM]

PN516

MS FLYNN: Mr Noel, you referred to just then about negotiations around the classifications once the skills audit was conducted. You say that there would be negotiations because there's no term in the 2003 certified agreement which says a wage increase will be applied once the metal competency standards are applied, isn't that right?---No, I thought there was a paragraph in there. 2003?

PN517

Yes?---2003, I thought there was a paragraph.

PN518

But you've just said that there would be negotiations around the rates?---Yes, yes.

PN519

If there was a paragraph in the 2003 agreement there would no need for negotiation, would there?---No, the paragraph that I - was that the skill levels, there was no reason why pay increases couldn't be paid to skill levels and that's the way I understood it, that the increase in skill level from a C10 to a C9 could be covered under that agreement to negotiate.

PN520

Because if we just look at the 2003 agreement, have you got a copy of the 2003 agreement there?---Yes, yes.

PN521

If I can take you to clause 9 of the agreement and you'll see that it sets out the wage increases?---Yes.

PN522

And it lists a number of positions under the Sugar Industry Award, New South Wales Sugar Industry Award?---Yes.

PN523

Do you see that?---Yes.

**** DENNIS NOEL XXN MS FLYNN
PN524

And then it also lists a number of classifications under the Metal, Engineering and Associated Industries Award?---Yes.

PN525

And you'll see there that next to the classifications that are listed there it says, column 1, wage increase 3.5 per cent, do you see that?---Yes.

PN526

Then in column 2, wage increase 3.5 per cent again?---Yes.

PN527

And then column 3, wage increase 3.5 again?---Yes.

PN528

And so within that structure - sorry, I withdraw that. Within those columns there's no mention of the wage rate that's paid to any of those classifications, is there?
---No.

PN529

So when you say that a person moving from a C10 to a C9 level, the agreement actually doesn't deal with that, does it?---I believe it does in paragraph (f) in the same clause you're quoting.

PN530

And now that you've taken me to clause 9(f)?---Yes.

PN531

I was just wondering, you don't mention clause 9(f) in your statement, do you?
---No.

PN532

And you just referred to, if anything, you were relying on the 1997 agreement and reference to broad banding, isn't that right?---Yes.

PN533

So now all of a sudden you're referring to clause 9(f)?---Yes.

PN534

Why didn't you think to include at clause 9(f), reference to clause 9(f) in your statement?---Because clause 9(f) has been in all the agreements prior to that in the exact wording. The only difference it ever was when it was referred to in the 97 where it stipulated the reclassifications exactly.

PN535

So in your mind is it clause 9(f) that gives you the right to a wage increase once the metal competency standards have been implemented, is that right?---Yes, yes.

PN536

Clause 9(f)?---Yes.

PN537

But if we look at clause 9(f) it makes no reference to the metal competency standards, does it?---No.

**** DENNIS NOEL XXN MS FLYNN
PN538

And if we also look at clause 9(f) it doesn't say that a wage increase must be paid, does it?---No.

PN539

Because it actually uses the word may be determined in negotiations?---Yes.

PN540

Clause 9(f) also refers to if there's been a significant change in the employee's job then certain things may happen?---Yes.

PN541

Doesn't it?---Yes.

PN542

And if there's been a change in the employee's job due to a change in technology then certain things may happen?---Yes.

PN543

But there's been no change in the technology that applies to the cooperative's mills in the sense of the work that you do, isn't that right?---No, because I read that same clause as saying - - -

PN544

I'm asking you in terms of the technology that is in place at the mills and that the people that you work with on a day to day basis?---Yes, yes.

PN545

That hasn't changed significantly over the last couple of years, has it?---I'd say it has if you worked the trades.

PN546

The machinery is quite old, isn't it?---No, we have a new refinery. It's the most modern in the world, built in - - -

PN547

But that's the requirement in terms of the machinery that you work with on a day to day basis?---But the Harwood - - -

PN548

It's been the same, hasn't it?---The Harwood workers work at both the refinery and the mills.

PN549

And the workshop that you work from, the machinery there, that hasn't changed over the last couple of years, has it?---No. Can I just - - -

PN550

Were you involved in preparing the submissions on jurisdiction that were filed with the Commission?---You'll have to rephrase that question, how - - -

PN551

Prior to statements being filed each of the parties were required to file written submissions or a written argument about their position about this application?
---Yes.

**** DENNIS NOEL XXN MS FLYNN
PN552

So the union filed their written submission which was in this folder. There was written submissions plus a number of attachments?---Yes, yes.

PN553

Did you have any input in relation to those submissions?---Yes.

PN554

And in the union submission though there's no reference to clause 9(f) of the agreement, isn't that right?---That's right.

PN555

So it's in fact today that 9(f) is being raised by yourself, isn't that right?---No, that's not correct. I've raised 9(f) with Bill Syme on numerous, numerous, numerous occasions from the EBA and I've been involved in EBA since 1994 and I've been involved with Bill since day one when he started with human resources and that clause has always been quoted.

PN556

And that's why you decided to leave out reference to clause 9(f) in your statement?---No, I didn't, no. I made clause 97 out of the 97 award, I asked for that to be included because that stipulated exactly.

PN557

Yes. And you thought it was really important?---I did.

PN558

That the 97 agreement be referred to, didn't you?---Yes.

PN559

And so in it went to your statement?---Yes.

PN560

But now you're telling us you think clause 9(f) of the 2003 agreement is important?---Because the way I understand it from what I've just heard since I've sat in here, that this is the EBA that you want to concentrate on.

PN561

That's right, because that's the EBA which this dispute has been brought under?
---And in that case I will argue the 9(f) again.

PN562

Okay. So let's go back to the 97 agreement. The 97 agreement contains the clause which referred to broad banding?---Yes.

PN563

Now, the 97 agreement though was replaced by another agreement, wasn't it, and that's the 99 agreement?---Yes.

PN564

And then the 1999 agreement was replaced by another agreement which was the 2001 agreement, wasn't it?---Yes, that's exactly right.

**** DENNIS NOEL XXN MS FLYNN
PN565

And the 2001 agreement did not incorporate any prior agreements, did it?---No.

PN566

And then after the 2001 agreement we had the 2003 agreement, isn't that right?
---Yes.

PN567

And the 2003 agreement does not incorporate any of the prior agreements, does it?---No, but each agreement has just been a follow on copy of the previous agreements after changes.

PN568

Okay?---After changes.

PN569

Well, I put it to you that's not right because you've made the point that the 1997 agreement contained that specific clause in relation to broad banding?---Yes.

PN570

And you've also said that that clause dropped out of subsequent agreements, isn't that right?---Change in wording, yes.

PN571

Well, no, it's dropped out of the other agreements?---Yes.

PN572

So it's more than a change of wording?---Yes, righto, yes.

PN573

So each subsequent agreement it does not just simply incorporate the rest of the other wording in the agreements, does it?---No. Can I just like to add to that?

PN574

No, thank you, Mr Noel. Now, in terms of the fact that the 2003 agreement has replaced the 2001 agreement and in the 2003 agreement you have not in your statement indicated any clause which justifies the wage increase, have you?---No.

PN575

And that's because under the 2003 agreement employees are paid over award rates of pay, aren't they?---We have from the start, yes.

PN576

Because - I withdraw that. And yet even though you were paid above award rates of pay, what you're asking the cooperative to do as a result of the metal competency standards being implemented is to increase those over award rates of pay further to somehow reflect the classification system in the award, isn't that right, that's what essentially you're asking?---What we're asking in my own words is that you're paying above award wages for C10 work, no argument, no argument at all. What we've done is over nine years we applied to have certain people recognised for the additional skills that they're doing. What we're asking is those people be paid an additional to the C10 rate because they are doing additional skills under the metal competency standards.

**** DENNIS NOEL XXN MS FLYNN
PN577

And that's despite the fact that there is no C10 rate of pay specified in the 2003 agreement, isn't that right?---That's right.

PN578

And that's despite the fact that Mr Syme both verbally and in writing has confirmed the cooperative's position that wage increases would not be made as a result of the competency standards being implemented, isn't that right?---That's right. But further to that question - that answer, Mr Syme has also asked for wage negotiations to be implemented before the competency standards. If we're not going to negotiate a pay rise because we're paying above award wages why would Mr Syme ask to negotiate the wage increases prior to implementing the standards?

PN579

Well, I put it to you that the union and your view as well as the view of your members has essentially meant that implementing the competency standards means a wage increase. That's the view, isn't it?---No, that's not correct.

PN580

That's not the view?---No, the view is if you're working above a C10 level then you receive a pay increase. The majority of our workers have not increased in clarification.

PN581

But essentially the view was that as an outcome of the metal competency standards?---Yes.

PN582

At least for some people then?---Yes.

PN583

That will lead to a wage increase?---Yes.

PN584

That's the view?---Yes.

PN585

Even though under the 2003 agreement people are paid above award rates of pay already?---Yes, for what we believe is C10 rate.

PN586

So there's no - if I can put it this way, there's no allowance in your view for the fact that people already get over award rates of pay, there's no adjustment to be made?---No, I believe if a person is working above the C10 classification they incur a wage increase to justify why they are doing more than their fellow worker.

PN587

Even though there's no C10 rate of pay in the agreement? There's only a C10 rate of pay in the - - - ?---The shop and all the employees believe that the C10 rate is the shop rate. That's what they've been led to believe.

**** DENNIS NOEL XXN MS FLYNN
PN588

That's their belief. That's their belief, yes?---They've grown up with that belief.

PN589

But given that there's a written agreement in place and the written agreement is what determines what is to be paid to people, there is very different - or there is a big difference, wouldn't you agree with me, between someone's belief versus what is actually written?---I agree in the fact that yourself and Mr Morrison that are lawyers and taken agreement and the Commission know exactly how it's written out, you are the experts. But to the workforce they go on the company's word on what is what things are about.

PN590

Yes?---And they are under the impression - - -

PN591

So they're under the impression. But what I - well, I suppose they can't have that impression though or they can't reasonably have that impression when there was letters issued by the cooperative about the fact that wage increases would not be paid. That's not reasonable to have those impressions, is it? Perhaps before you answer that question can I show you two letters?---Yes. I don't dispute the letters, I've got a copy of them.

PN592

Well, if you've got a copy it's the first one if I can take you to. This is attachment 8 to Mr Syme's statement. Have you got that before you, Mr Noel?---I have a statement about national standards 2002, is that the one you're talking about, July?

PN593

No, it's a letter dated 13 March 2001?---Yes.

PN594

And that letter is a letter to you?---Yes.

PN595

From Mr Syme?---Yes.

PN596

And the re is Implementation of National Metal and Engineering Competency Standards?---That's correct.

PN597

Now, if I was to take you to the third paragraph - sorry, and - sorry, Mr Noel. The letter was also copied to the AMWU delegates at Condong and Broadwater, can you see that?---Yes.

PN598

And it was also copied to the team leaders at Hardwood, Broadwater and Condong, the chief engineer at Harwood and Broadmeadow and the acting chief engineer at Condong?---Yes.

**** DENNIS NOEL XXN MS FLYNN
PN599

Now, can you see on the third paragraph that it says:

PN600

The cooperative reserves the right to absorb any claim for wage increases associated with this process and to current over award payments and EBA increases.

PN601

Do you see that?---Yes.

PN602

And it also says:

PN603

This view is consistent with the Competency Standards Implementation Guide.

PN604

?---Yes.

PN605

If I can take you to the next letter which is dated 10 July 2002, this is attachment B to Mr Syme's statement. Do you have a copy of that letter?---I've got a copy of that, yes.

PN606

And do you see that that is addressed to the AMWU delegates at Harwood, Broadwater and Condong?---Yes.

PN607

And it's also copied to the team leaders at Harwood, Broadwater and Condong?
---Yes.

PN608

And the engineering staff?---Yes.

PN609

At Harwood, Broadwater and Condong. That letter again at paragraph 4, or the fourth paragraph, says that:

PN610

The cooperative reserves the right to absorb any claim for wage increases associated with this process and to current over award payments and enterprise bargaining increases.

PN611

Do you see that clause?---Yes.

PN612

Or paragraph I should say. And it also goes on to say:

PN613

This view is consistent with the Competency Standards Implementation Guide.

**** DENNIS NOEL XXN MS FLYNN
PN614

Do you see that?---Yes.

PN615

So on those two occasions at least the message has been sent as to how the cooperative was gong to view any claim for additional wages, isn't that right?
---Yes.

PN616

So given that the cooperative had confirmed this in writing it's not reasonable for yourself and for your co-workers to have the belief that wage increases would arise from the process, is it?---I think it's because we didn't believe at that point in time - the audit hadn't been done. It was no use arguing about pay increases if every employee in the place turned out to be a C10 which is the current rate. We had no indication whether there was one, two or three employees that would have been employed above a C10 rate.

PN617

But the cooperative had told you in terms of from its perspective what would happen given that there was a certified agreement in place if there was any claim for additional wages?---The cooperative often puts out letters to us that's not in accordance to the EBA.

PN618

But we've already - in terms of the 2003 agreement it doesn't say a C10 rate of pay, does it? You've already told us that?---It lists the C10 classification.

PN619

Yes, that's all it does?---Yes.

PN620

And it doesn't say anything about how someone would move from a C10 to a C9 or what is a consequence of any movement, does it?---At that point in time we knew how you moved because we've been talking competency standards.

PN621

But you knew that, but in terms of in the agreement it's not in the agreement, is it?---It is as far are we're concerned. With the most you list C10, C9, C8s and all those classifications it shows you the company recognises there's those other classifications.

PN622

But you have to read a lot into that to get to where you are on your side of the fence, don't you?---That maybe so but we've had that for nine years.

PN623

But you haven't because you've already explained to us too that the agreements have changed over the years with each subsequent agreement?---This is true but we've always thought that we have a clause put in there to cover us.

**** DENNIS NOEL XXN MS FLYNN
PN624

But you thought that but when you actually look at the agreement there's nothing in there to say once the level of competency standards are implemented a wage increase will follow, isn't that right?---No, but the clause that we've always made sure was in there was (f) clause. We always made it in there that tradespeople stood out in negotiations to make sure that clause went in for both the electricians and the electrical trades to cover competency standards. That's why that clause was always fought for and were locked out on occasions until we get it included.

PN625

And yet you didn't raise that in your statement either at the time that it was filed?
---No, I did not.

PN626

That's the first time you're raising that. If it is the case, if we were to accept your view that clause 9(f) was included in the 2003 agreement to address the metal competency situation, why does it not read that a wage increase must be made, why does it say made?---Because not everyone was going to be reclassified. We did not - right up to this point we have the audits back from Mr Tiller but the company has not recognised that the implementations in and out of the classifications set out in - the letter lastly that I got from Bill told me not to submit it to the workers about their classification.

PN627

But in terms of - no, I withdraw that. If I can take you to - and you accept, don't you, Mr Noel, that the current dispute before the Commission is not about the 1997 agreement, it's about the 2003 agreement, you accept that, don't you?---No, I accept that this has been an ongoing before the Commission, numerous Commissions since 1993 for the implementation of competency standards.

PN628

But there's been agreements that have replaced the 1997 agreement, you do accept that, don't you?---I accept that it's been, you have to.

PN629

And that the terms of the agreements in certain clauses have changed?---Yes.

PN630

So paragraph 5 of your statement, are you saying you have a direct conversation with Hugh McIntosh in 1993?---Definitely.

PN631

But that's in relation to the agreement that was in place at that time, wasn't it?
---Certainly. But I'd like to add at that statement that Hugh McIntosh, Mr Hugh McIntosh knew and - - -

PN632

Well, I'm sorry, I don't think you can - - - ?---All right.

**** DENNIS NOEL XXN MS FLYNN
PN633

You're not in a position to say what you thought?---Righto.

PN634

In terms of paragraph 7 of your statement did you go to the proceedings before the Commission in 2000?---I'd say so if it was on.

PN635

THE COMMISSIONER: That's the conference before Commissioner Harrison is it?

PN636

MS FLYNN: That's correct?---Where was that held?

PN637

You've referred to it at paragraph 7 of your statement?---If I referred to it, I was there. Page 7 - paragraph 7, yes.

PN638

Now, have you looked at the transcript that generated from those proceedings?
---Not recently, no.

PN639

So at the time you wrote that paragraph you didn't like reference to the transcript?
---Only what I could recollect within my own recognition of it.

PN640

Because I put it to you that it does not say in the transcript that the cooperative stated that implementing standards would require pay rises for classification above C10?---No, but what it did say is that they wanted to negotiate the wage increases before they implemented the audit in the classifications. I think that - - -

PN641

At that time?---At that time.

PN642

At that time?---That was raised by I think Brad Stewart, I think was in that Commission.

PN643

And the 1999 agreement would have been in place at that time, that sounds rights, doesn't it?---I'd say yes.

PN644

Now, in terms of paragraph 9 of your statement and you're referring to the pay differentials, again your position is that whatever the differentials were in the award should be applied to whatever is paid under the 2003 agreement, isn't that right?---No, how do you read that in that statement?

PN645

Because you're saying that a C10 - when you're referring to the 100 per cent of the shop rate and, you know, 105 per cent of the shop rate where are you getting those figures?---From the implementation of competency standards.

**** DENNIS NOEL XXN MS FLYNN
PN646

You're saying that those figures are in that?---They're saying - the argument is when I'm referring to C10 rate in my statements I'm referring to the shop rate.

PN647

Under the 2003 agreement?---Under all agreements, yes, yes. That's the answer, yes.

PN648

But in terms of the 100 per cent figure that you get and 110 per cent and 105 per cent, where are you getting those percentages from?---Out of the implementation guide of the competency standards.

PN649

The implementation guide?---Yes.

PN650

Well - - - ?---I haven't got it in front of me so.

PN651

Can I give you a copy of the implementation guide. Can you take me to the relevant page in the implementation guide which refers to those percentages?---I'd have to look right through it because I can't remember off hand. Are you saying it's not in here?

PN652

I put it to you it's not in there?---Then if it's not in this then I must have got it out of our award book.

PN653

Are you sure about that?---I'm not sure of anything.

PN654

Okay?---They're not in front of me.

PN655

Now - - - ?---I didn't make a - - -

PN656

Let me put this to you, this scenario to you?---Yes.

PN657

What I understand you to be saying is that the differentials that apply under the award, the wage relativities from a C10 to a C9, even though they're based on the award rates of pay?---Yes.

PN658

And the minimum rates of pay, should be basically just carried over and applied to the 2003 agreement, would that be right?---Could you repeat that?

PN659

That the differentials that apply between a C10 and a C9 under the award?---Yes.

**** DENNIS NOEL XXN MS FLYNN
PN660

It's like we know that the award sets out minimum rates of pay for those C classifications?---Yes.

PN661

What I understand you to say is that however those minimum rates of pay are calculated for each of the C classifications because the award sets them out, which is different to the 2003 agreement because the 2003 agreement does not itemise what a C9 gets?---Yes.

PN662

Or what a C8 gets or a C10?---Yes.

PN663

But the award does itemise what a C8 gets, what a C9 gets, what a C10 gets?
---Yes.

PN664

But your argument is we should extract from those minimum award rates of pay the same differentials and apply them to the 2003 agreement even though the 2003 agreement allows people to be paid over award rates of pay?---Yes, because I believe that the C10 rate paid by the company in the EBA is a C10 rate.

PN665

Even though there's no C10 rate mentioned in the agreement?---And I think all the employees that work the trades all believe that the shop rate is the C10.

PN666

But that's your belief?---Yes.

PN667

But despite the fact that the agreement does not say the C10 rate of pay is $750 week, it doesn't say that, does it?---It doesn't say that. It doesn't say what the C9 rate is either.

PN668

That's right. Nor does it say what the C8 rate is?---No.

PN669

Because there's actually no correlation between the C classifications listed and any particular rate of pay, is there?---No. Even up to an engineer's class 1.

PN670

There is no mention of what it should be?---Yes. But they're mentioned there in their entirety.

PN671

It's listed out?---Yes.

PN672

The classifications are listed out?---Yes. But what the members believe, that because you've listed them then there's a classification within the EBA of that level of classification.

**** DENNIS NOEL XXN MS FLYNN
PN673

But they believe that even though there's no wage rate next them?---Yes, yes.

PN674

So that's their belief?---Yes.

PN675

Now, in terms of paragraph 10 of your statement you say that pay increases were envisaged in the EBAs?---Yes.

PN676

That you voted on?---Yes.

PN677

And again if I can understand you correctly, you say that where it was envisaged was clause 9(f) of the 2003 agreement?---Yes, that's for that agreement.

PN678

Yes, for that agreement?---Yes.

PN679

This is the current agreement we're talking about?---Yes. The current agreement is 2006, isn't it?

PN680

That's right, your current agreement is 2006?---Yes.

PN681

And in terms of paragraph 11 you refer to - you say that there were stalling tactics in relation to the implementation of the competency standards?---I think that's quite evident.

PN682

Well, isn't it correct, Mr Noel, that on a number of occasions when MISTAS was involved and I believe that Richard Belman of MISTAS was involved in the process at one stage?---Yes, yes.

PN683

Wasn't it the case that he was often unavailable to attend at certain times because of his own commitments?---Yes, yes.

PN684

And wasn't it the case that you often struggled to get a certain date where he was available in order to meet with the cooperative to like progress things?---Yes.

PN685

Because of his commitments?---Yes.

PN686

Wasn't it also the case that as part of - when employees were asked to do their own self assessments which was completing those forms?---Yes.

PN687

Which had, you know, there was a number of pages, they had to tick boxes to say what kind of skills that they held?---Yes.

**** DENNIS NOEL XXN MS FLYNN
PN688

Wasn't it the case that for some workers it took many months to return those self assessment forms?---Yes. I'd like to add at that point though.

PN689

Well, I'm asking the question, Mr Noel?---But that's not a yes or no answer, that's the trouble. Righto.

PN690

Wasn't it the case that you had to chase up some of your co-workers?---Yes.

PN691

To submit their self assessment forms?---Yes.

PN692

So when you're referring to stalling tactics that's not quite right, is it?---I believe it is.

PN693

Because in fact there was a number of different circumstances which delayed the process if you like, things outside people's control?---I think the 10 years of delay has been more on the company's side than on the workers side, of a couple of weeks to submit their auditor forms in. We've been through the Commissioner, I don't know, this would have to be the fifth Commission, and each time the company has said to the Commission we will implement competency standards and 10 years later, after all those Commissions and telling the Commissioner we will implement competency standards, they're not implemented.

PN694

But you'd have to agree with, Mr Noel, that is not a process which can happen overnight. It's quite detailed, isn't it?---I think Queensland brought it in in about three years and a lot of bigger companies have brought it in in 12 months. I think 10 years is a long time.

PN695

But there's been a number of changes in the staff that have worked at the cooperative, isn't that right?---Yes, I've had five different negotiators, you're right.

PN696

And so that was another factor which implemented on the process, isn't that right?---Yes, that's right.

PN697

THE COMMISSIONER: Mr Noel, just on that, when you say have been back before the Commission five times, just so I understand that, what forums were they?---Well, without having them all in front of me, Commissioner, I have got them but we went all the time to get the company to implement competency standards. After many meetings off the record, on the record, at the end of the outcome in front of the Commissioner they've always parted with us saying we will implement competency standards. They've always started their argument off saying we will not implement competency standards until we negotiate a pay increase. We said we will not negotiate a pay increase because we don't know how many people affected by the competency standards. They could all be a current C10, there could be no argument.

**** DENNIS NOEL XXN MS FLYNN
PN698

All right.

PN699

MS FLYNN: But Mr Noel, in the submissions filed by the union there's only one hearing that's referred to in those submissions, isn't it, and that's one before Commissioner Harrison in 2000?---Yes.

PN700

Isn't that right?---Yes.

PN701

THE COMMISSIONER: And that's a conference, isn't it?

PN702

MS FLYNN: That's right but there was a transcript taken.

PN703

THE COMMISSIONER: Yes. But it wasn't an arbitration - - -

PN704

MS FLYNN: No, it wasn't an arbitration. Sorry.

PN705

THE COMMISSIONER: That's all right.

PN706

MS FLYNN: So in terms of when you say it was before the Commission on a number of occasions it wasn't an arbitrated hearing, was it?---No.

PN707

And if there had have been other occasions when it was before the Commission and a transcript was taken?---Transcripts were taken.

PN708

We would see it in the union's submissions, wouldn’t we?---Maybe because they didn't put them in, but I’m just saying that most of the times we went before the Commission because the company was stalling on the implementation of competency standards, so we'd go before the Commissioner and tell them that this is the way it was and at the end of that time, at the end of that Commission hearing they always said all right, we'll implement competency standards. So that settled that dispute.

PN709

So what Commissioners did you appear before?---Do you want to start from 1993?

PN710

No, let's go back for the last three years?---Righto. You'll have to give me a bit of time. We were before the Commission 1996.

PN711

In the last three years, we're in 2007. The last three years there mightn't be that many but there's another for 2000. See I'm starting off in 1993. When I said numerous Commissions I'd say there's been more than five since 1993.

**** DENNIS NOEL XXN MS FLYNN
PN712

But in terms of in relation to the 2003 agreement?---The 2003 agreement I think there's been one and that was a phone conference that I wasn't involved in. I wasn't allowed to be involved, sorry.

PN713

But in terms of your personal knowledge you couldn't point to a conference that's happened in relation to the 2003 agreement, is that right?---I'm still up to 2000. Can I just keep going for a little while. Just give me five minutes. I'm up to four by 2000.

PN714

THE COMMISSIONER: Sorry, you're up to four in 2000?---By the time 2000's come I've had four Commission hearings but the company wants to know since 2003. I don't think I've been involved in any since 2003. I think there was - - -

PN715

What about since 2000?---There was in 2000 itself, Commissioner.

PN716

Yes.

PN717

MS FLYNN: And was that Commissioner Harrison?---Lawson.

PN718

Commissioner Lawson?---Yes, sorry, that was Were Engineering, wrong conference, sorry. I think the last one was Mr Syme and that was - I can't remember if Bill started in 2000 or 2001.

PN719

Mr Syme tells me he commenced in January 2001, if that's any help?---Yes, I don't think I've been in any Commission hearings with Bill since then.

PN720

Thank you. Now, in terms of - sorry, Commissioner.

PN721

THE COMMISSIONER: That's all right.

PN722

MS FLYNN: Excuse me for one minute.

PN723

THE COMMISSIONER: That's all right.

PN724

MS FLYNN: Mr Noel, you've referred earlier when Mr Morrison was asking you questions about the tradesman rate in the 2003 agreement?---Yes.

PN725

Can you point me to the tradesman rate in the 2003 agreement?---The exact rate?

**** DENNIS NOEL XXN MS FLYNN
PN726

Yes?---No.

PN727

Where does it say what the tradesman rate is?---It doesn't.

PN728

Thank you. No further questions.

PN729

THE COMMISSIONER: Thank you. Mr Morrison.

<RE-EXAMINATION BY MR MORRISON [3.03PM]

PN730

MR MORRISON: Thank you, Commissioner.

PN731

Firstly, Mr Noel, in your opinion what would be the position of the sugar mills if they only paid the award rate to the tradesmen?---I truly believe that if they had have raised that a long time ago they would have only got their C10 classification worked as per their C10 audit.

PN732

Thank you. Now, if I could take you to clause 9(f) of the 2003 agreement?---My voice is cracking not because of nerves, I've got a sore throat.

PN733

I understand, Mr Noel?---Now, that's page 7 of nine or something, is it?

PN734

Six of nine or might be seven of nine, the one you've got in any event?---Yes.

PN735

Now, it says:

PN736

Where there is significant change in an employee's job description due to -

PN737

And then it says -

PN738

a change of technology,

PN739

?---Yes.

PN740

or of work on nature of work, skill and responsibility required, or the conditions under which work is performed -

PN741

What do you read that part of the clause to mean?---I believe that if people are working outside of their C10 classifications as set out by the company's C10 classification both for fabrication and mechanical, if they're working outside those whether it's due to the nature of the work, the technology or the skill required, then they have the appropriate meaning in this clause that they can negotiate a pay increase or a wage classification.

**** DENNIS NOEL RXN MR MORRISON
PN742

And what particular wording of that clause leads you to that understanding?
---Well, the company can argue that technology hasn't changed but it has, but the nature of the work and the skill and responsibility required, the people that have been classified in the C9 and C8 classification work outside - with those guidelines outside the current classification of a C10, within the nature of work and skill and responsibility.

PN743

So do you read if you like, change in technology, nature of work - - -

PN744

MS FLYNN: Leading, objection.

PN745

MR MORRISON: I'm reading the documents, I don't think it's leading.

PN746

MS FLYNN: Well, the question was premised with do you read and I can only anticipate that to read or to mean is going to follow.

PN747

MR MORRISON: How do you read the various components of that paragraph?
---I read that the technology, nature of work, skill and responsibility required and then down further it says that -

PN748

A new classification of appropriate wage rate or wage increase for an existing classification may be determined by negotiation.

PN749

I believe that covers the claim that we're having in negotiating a new rate of pay for the C9s and C8s.

PN750

Now, do you also recall you were taken to two letters from Mr Syme?---Yes, 2001 and 2000 I think it was, 2001 and - yes, I know the letters, yes, where the company says reserves the right. It's the same paragraph in both letters, 2002,
10 July.

PN751

Did you agree with Mr Syme's position in those letters?---Can you put that question - - -

PN752

Did you agree with Mr Syme's position in those letters?---No, no, I didn't.

PN753

Did you take that position to the members to see if they would agree to it?---I took it to the members, yes, and the members didn't agree with his position but at that point in time instructed me not to argue about it because no classification had been put in to see if anyone was entitled to a pay rise.

**** DENNIS NOEL RXN MR MORRISON
PN754

So what was the determination of the members with regard to both those letters of Mr Syme's?---That we wanted the implementation of competency standards done before there was any talk of pay rise or payments and that's the same today I might add, Commissioner, and that's from people who were I think here there's sites that don't even have an increase in their classification that they are still informing their delegates to implement competency standards.

PN755

Excuse me one second.

PN756

THE COMMISSIONER: That's all right, Mr Morrison.

PN757

MR MORRISON: So what is agreed, was it not, that Mr Tiller conducted the competencies assessment?---Yes. The reason we agreed, because we knew that the integrity of the implementation could not be corrupted.

PN758

And what is in dispute is whether the competency standards resulted in a differential pay rise for the various classifications?---That's correct.

PN759

And that is what is in dispute, is it not?---Yes.

PN760

What is agreed though? What is the agreed next step, not the - what is the agreed next step?---The agreed - - -

PN761

MS FLYNN: Your Honour, I don't think arises from cross-examination but I'll leave it ultimately, Commissioner, for you to decide.

PN762

THE COMMISSIONER: Thank you.

PN763

MR MORRISON: The question of disputes were raised and - - -

PN764

THE COMMISSIONER: I'll allow it, Mr Morrison?---The reason being that the company - the dispute is twofold, one that we want the Commissioner or the Commission to arbitrate on whether there's a pay rise or there's not a pay rise, and number two, the company has not finalised the implementation after the audit. The members still not - I know and the union know the employees classifications as put out by Dave Tiller. The company has not and asked us not to inform the employees of their classification, so the employees have got to know their classification and the implementation of the competency standards. That's why we're here.

**** DENNIS NOEL RXN MR MORRISON
PN765

MR MORRISON: But has anything agreed to move forward? Is there any agreed things to move forward on?---We've agreed to abide by David Tiller's classification of employees so we can move forward on that.

PN766

No further questions, Commissioner.

PN767

THE COMMISSIONER: Thank you, all right. Mr Noel, have the wage rates ever been in your knowledge, ever been attached to the agreement?---No, your Honour - Commissioner, no.

PN768

Anything arising from that, Mr Morrison?

PN769

MR MORRISON: NO.

PN770

THE COMMISSIONER: Ms Flynn?

PN771

MS FLYNN: No, thank you, Commissioner.

PN772

THE COMMISSIONER: All right. Thank you for giving your evidence,
Mr Noel. Now, were they all your documents?---Yes.

PN773

All right.

<THE WITNESS WITHDREW [3.11PM]

PN774

THE COMMISSIONER: All right. That completes your evidence,
Mr Morrison?

PN775

MR MORRISON: That completes our witnesses, yes.

PN776

THE COMMISSIONER: Thank you. Do the representatives - - -

PN777

MR MORRISON: It might be practical to have a five minute break.

PN778

THE COMMISSIONER: Yes. I'm just actually putting to you whether you have a preference to commence Mr Syme this afternoon or tomorrow?

PN779

MS FLYNN: We have got Mr Sawatzki here.

PN780

THE COMMISSIONER: That's right, Mr Sawatzki, okay. All right. Well, we'll have a five minute adjournment now.

PN781

MR MORRISON: Thank you, Commissioner.

<SHORT ADJOURNMENT [3.11PM]
<RESUMED [3.27PM]

PN782

THE COMMISSIONER: Thank you. All right. Ms Flynn, you're ready to call your witness?

PN783

MS FLYNN: Thank you, Commissioner. I call Regan Sawatzki.

<REGAN WAYNE SAWATZKI, SWORN [3.28PM]
<EXAMINATION-IN-CHIEF BY MS FLYNN

PN784

MS FLYNN: Mr Sawatzki, do you have a copy of the statement that you prepared in this matter with you?---I didn't bring it with me.

PN785

Do you recognise the statement that I'm going to hand to you?---Yes, I do.

PN786

Sorry, I should ask you as well, could you please state your full name and address for the record?---Regan Wayne Sawatzki, (address supplied).

PN787

Now that you've got a statement in front of you is there any changes you wish to make to your statement?---Yes, there is in paragraph 14, I was also a member of that committee that reviewed the results of the skills audit.

PN788

So - - - ?---The second line in that reads:

PN789

To the best of my knowledge the committee consisted of the following people -

PN790

And I didn't mention myself.

PN791

Okay. So you wanted to just add myself, the word myself into there?---Yes.

PN792

Is there any other change that you wish to make to your statement?---No, there is not.

PN793

Do you say that the statement is true and correct to the best of your knowledge and belief?---To the best of my knowledge and belief it is.

PN794

I seek to tender that statement.

EXHIBIT #5 STATEMENT OF MR SAWATZKI

PN795

THE COMMISSIONER: Thank you.

PN796

MS FLYNN: Thank you. No further questions, Commissioner.

PN797

THE COMMISSIONER: Mr Morrison.

**** REGAN WAYNE SAWATZKI XN MS FLYNN
PN798

MR MORRISON: Thank you, Commissioner.

<CROSS-EXAMINATION BY MR MORRISON [3.30PM]

PN799

MR MORRISON: Mr Sawatzki, you have your statement before you, don't you?---Yes, I do.

PN800

Could I take you to paragraph 3 of your statement, it says:

PN801

I was a member of the AMWU up until July 1994.

PN802

?---That's correct.

PN803

Were you aware as a member of the union's position seeking the classification and competency standards being input into the various sugar mills?---During 1990 - up till 1990 - - -

PN804

1994?---No, I wasn't.

PN805

As a delegate, a co-delegate at the Broadwater mill before you moved to the Harwood mill were you aware of any campaigns being underway with regard to seeking the classifications assessments?---No, I wasn't.

PN806

You weren't aware of them either. So in paragraph 6 where you say:

PN807

My first involvement with the metal competency standards issue -

PN808

That was your first involvement with it, is that correct?---Yes, it is.

PN809

Nothing prior?---I had not heard of it prior to that.

PN810

So that occurred in June 2004 and you don't recall it ever being discussed around the various workplaces while you were in your supervisory role?---Not at all.

PN811

Or subject of enterprise negotiations?---No.

PN812

So if I could take you then to paragraph 9 of your statement where you talk about a meeting you attended in June 2005 and specifically in your last sentence of that paragraph you say:

**** REGAN WAYNE SAWATZKI XXN MR MORRISON
PN813

A decision was made at this meeting to restart the skills audit process because of the turnover in personnel, the time lapse between the first audit and the over inflated scores that had been returned by the employees in the initial process.

PN814

You were aware of that first audit, weren't you?---I was made aware of that audit, yes.

PN815

Right. Now, at this meeting in June 2005 what was going to happen as a result of that meeting? What was determined at that meeting that the next steps will be?
---That the skills audit process would be restarted.

PN816

Well, I'm sure that they didn't get all of you together and say the skills audit process will be restarted. What plans were made?---Could you repeat the question, please?

PN817

Yes. What plans were made at that meeting in June 2005 to restart the skills audit process?---Well, my understanding of what occurred at that meeting is that every person that was present had decided to restart the skills audit process by taking it right back through to the further stage which was a training of the committee.

PN818

Right. So did they set out a timetable or did they just generally talk about what was going to happen or was there specific plans made?---I don't recall specific plans being made.

PN819

Do you recall what the planned outcome of this meeting was?---The planned outcome of the meeting was to decide what we were going to do with competency standards.

PN820

And what did you decide you were going to do with competency standards?---I didn't decide anything. The committee made the decision.

PN821

What did the committee make the decision to do?---To restart the process.

PN822

But did they say anything further or just restart the process was the entirety of the decisions of the - - - ?---I don't recall.

PN823

You don't recall. Then in paragraph 10 you talk about a two day session you attended?---Two day training session, yes.

**** REGAN WAYNE SAWATZKI XXN MR MORRISON
PN824

Two day training session. What happened at this two day training session?---We were taken through the process of developing competency standards.

PN825

Who took you through it?---I believe the training was run by AIG.

PN826

Do you remember the person's name from AIG?---David Tiller I believe.

PN827

And what did he say was going to happen?---That we would learn how to work through competency standards.

PN828

Did he say for what purpose you would work through competency standards?
---No, I don't recall if there was a purpose other than we had to go through it.

PN829

You just had to go through it?---Yes.

PN830

What did he say would be the outcome of the process?---This was a training session in working through the process, not a training session that was going to tell us what the outcome was.

PN831

But did he say at the end of this process this thing will happen? Did he say what would happen at the end of the process?---He may have but I don't recall if there was a final outcome that was dictated to us at this training session.

PN832

Well, did he say that some workers will be assessed at C10, some workers will be assessed at C9?---He may have. I can't recall him specifically saying that workers will be assessed at a specific outcome. We would develop - this was a training session to develop our understanding of what we had to assess the people on.

PN833

Were you told what the purpose of you assessing the people was for, I mean why were you assessing them?---To see how they matched up to the competency standards as per the Metals Award.

PN834

And then what? What did you understand was going to happen after they were assessed against the metals competency standards?---I don't know.

PN835

And you didn't bother to ask anyone?---No.

PN836

No-one bothered to tell you?---No.

**** REGAN WAYNE SAWATZKI XXN MR MORRISON
PN837

You just participated?---Yes.

PN838

Did you ask anyone or did anyone tell you why the people were participating in this process?---I'm sorry, can you repeat that?

PN839

Did anyone tell you why the employees were participating in this process?---I didn't ask any of the employees, no.

PN840

You didn't ask the employees why are you doing this?---No.

PN841

Why do you think the employees were participating in the process?---Well, my understanding is that they wanted to be classified as to whatever they were.

PN842

And why did they want to be classified do you think?---I don't know.

PN843

Now, according to paragraph 5 you're the acting chief engineer?---That's correct.

PN844

And you're responsible for overseeing engineering, maintenance capital work, site safety and recruitment?---Yes.

PN845

And you were the direct site liaison with delegates of the AMWU?---That's correct.

PN846

And yet you have no idea why the employees were interested in gong through this process of competency assessment?---At this stage I didn't, no.

PN847

Did you make any attempt to find out why I'm doing this? I mean you're a fairly senior person in the organisation, aren't you?---Yes.

PN848

So why wouldn't you ask the question, why am I doing this?---Myself and Jeff Ackers who's the delegate at Broadwater had asked - had spoken about what was happening, where things were going, but I didn't ask him why we were going - why he was wanting to go through the process, no.

PN849

No, but did you ask anyone why you had to go through the process?---As the site representative acting chief engineer it was my responsibility.

PN850

But why the process? Why were you using this process?---I don't know. Is there any other choices of a process or not?

**** REGAN WAYNE SAWATZKI XXN MR MORRISON
PN851

You were a tradesman, were you not, in your earlier life?---Yes, yes, and still am.

PN852

And still are. What qualifications did you have, do you have a trades certificate?
---Yes.

PN853

As?---Fitter machinist.

PN854

And what classification were you as a fitter machinist?---A tradesman.

PN855

So you've only ever worked at the sugar mills, is that correct?---That's correct, as a tradesman.

PN856

As a tradesman. So as a tradesman you just had a general classification while you were at the sugar mills?---I had a trade certificate - - -

PN857

As a tradesman?---I had a trade certificate and that's what I worked as, a tradesman.

PN858

And you were a tradesman because of your trade certificate?---That's correct.

PN859

And all the other tradesmen because of their trade certificate?---That's correct.

PN860

Do you have any knowledge of any employees of the sugar mills who work under the Metals Award but are not tradesmen with trade certificates?---As tradesmen's right?

PN861

Well, work under the Metals Award but are not certificated tradesmen, third class machinists if that helps assist your memory?---Machine - - -

PN862

Someone who's classified as a third class machinist?---We don't have, to my knowledge, we don't have any classifications of third class machinist.

PN863

Or welders that are not certificated tradesmen?---We have welders who are not certified tradesmen who are working under the supervision of a tradesman.

PN864

Yes. And they're employed under the Metals Award, aren't they?---I can't be sure. I'd have to have a look at their records.

PN865

Well, it would be very hard for them to be employed under the AWU Production Award, would it not?---I don't think they're getting paid as tradesmen so I don't think they'd be paid under the Metals Award.

**** REGAN WAYNE SAWATZKI XXN MR MORRISON
PN866

If I put it to you that they're in fact being paid a percentage of the tradesman pay rate would that assist your memory?---Well, every person that works for the mill is going to be paid a percentage of some rate.

PN867

And there are employees, are there not, working under the Metals Award doing Metals Award positions, paid a percentage of the metals tradesman rate, isn't that correct?---I don't believe so. The only ones that would be would be apprentices.

PN868

Bear with me for one moment. So you participated in August 2005 the two day training session, that's correct?---That's correct.

PN869

And what did you do next, after participating in the training session?---In what context?

PN870

Well, you were trained to do something?---Yes.

PN871

What did you do next?---I individually - - -

PN872

From that training?---I individually didn't do anything.

PN873

So they just trained you?---Yes.

PN874

And then you did nothing?---Yes, that's correct. We were trained as a committee.

PN875

Yes?---Not as individuals.

PN876

And what did the committee do next?---As per paragraph 11:

PN877

On or around 20th and 21 September we participated in meetings, developing and reviewing the skills, models and job profiles in accordance with step 2 of the skills audit process.

PN878

So step 1 was training, step 2 was developing and reviewing skills, models and job profiles, is that correct?---I believe so, yes.

PN879

Yes, I think you can answer that question. So question 3 is what was the third step, what was the next step? Step 1 was the training, step 2 was the skills and model profiles, what was the next step?---The next step I believe would have been the skills audit.

**** REGAN WAYNE SAWATZKI XXN MR MORRISON
PN880

Okay. So did you participate in a skills audit?---No, I didn't.

PN881

Do you know what occurred at the skills audit?---Yes, I believe the tradesmen were given a list of questions or a list of skills and they had to select what skills they held and used.

PN882

And they were from your participation that you refer to in paragraph 11, is that correct?---The skills list?

PN883

Yes?---Yes.

PN884

So at this stage did you know what they were doing that selecting and identifying for?---Yes.

PN885

Okay. What was it?---To identify what skills they held and used.

PN886

For what purpose?---I would assume that they wanted to have a pay rise out of it. That's the only thing that I could put at it - could work out from it.

PN887

Why do you say a pay rise?---Why else do you put energy to developing something unless you're going to get a reward for it?

PN888

I suppose you've got a point there. But didn't they also seek to be classified into appropriate trades classifications?---That wasn't made aware to me.

PN889

Are you aware of the outcome of this skills assessment?---I'm aware that people would have fallen into certain categories. I can't say that that's an outcome.

PN890

What were these categories they fell into? Were they in fact not the various C classifications?---According to the Metal Trades Award, yes.

PN891

And who placed them into these categories?---The committee did.

PN892

The committee?---Yes.

PN893

Not Mr Tiller?---Basically the committee verified what skills the blokes had and used and from memory I believe that we did change some of the skills profiles that fellows had filled in and I do believe Mr Tiller took all the results and developed a list.

**** REGAN WAYNE SAWATZKI XXN MR MORRISON
PN894

So you're aware that as an outcome of steps 1, 2 and 3 employees were classified as C10, C9 or C8, is that correct?---Yes.

PN895

So you know now why the employees went through the process, don't you?---Yes.

PN896

And what do you think that was?---I would believe so - I don't really know if the employees themselves who filled out these assessments knew what the reason was for it but certainly the committee and - yes, the committee members knew what the reason for the classification was.

PN897

Well, you told us at the time you did it you didn't know, now you're telling us you did know?---At the time that it started I didn't know.

PN898

But you knew by this stage?---I also know a lot more now too.

PN899

But when you placed them in their classifications did you know why they went through the process?---Yes.

PN900

You did know that?---Yes.

PN901

And you've placed in classifications, either C10, C9 or C8, is that correct?---I didn't place them in classifications.

PN902

You as a member of the committee placed them classification C9, C8 or C10?---I don't actually recall that we placed them in a certain classification. The outcome came to be that certain people would have fallen under them classifications.

PN903

Who determined that they fell under those classifications?---The committee.

PN904

The committee. Well, that you remember?---Yes.

PN905

So the committee sees how people fall out as a result of participation of the skills audit whether they are C10, C9 or C8?---Yes.

PN906

And by this stage you knew why they were participating in the process?---I had my belief as to why they were.

PN907

And what was your belief?---That they were after a pay rise.

**** REGAN WAYNE SAWATZKI XXN MR MORRISON
PN908

How did you make the connection between being classified as C10, a C9 a C8 and a pay rise?---When I read the award.

PN909

I'm sorry?---When I read the award.

PN910

And what did you understand the award to say?---That C10s, C9s and C8s, et cetera, had a different pay rate to one another.

PN911

And did any of the employees who you deal with on a daily and regular basis raise that point with you?---No, the only person I spoke to at our site about reclassification was Jeff Ackers.

PN912

And what did you tell Mr Ackers?---I didn't tell him nothing. We just talked about it.

PN913

You just talked about it, you didn't tell him nothing?---No, we just discussed at what stage the process was at. I say my response to that was I wasn't sure. There'd be verification of certain meetings and that's about all.

PN914

Were you aware of the company position with regard to any outcome of a classification identification beyond the C10?---Could you repeat - - -

PN915

Were you aware what the company's position was with regard to a reclassification?---At what stage?

PN916

By this stage, at the end of the step 3 when you as a member of the committee had placed people into particular classifications?---Yes, I was aware that we weren't going to be given a pay rise.

PN917

Did you inform anyone of that?---No, I didn't.

PN918

You didn't inform Mr Ackers?---No, not to my knowledge.

PN919

Did he inform you that the union was seeking as an outcome that the employees classified above the C10 would be seeking an award differential pay rise?---Not to my knowledge.

PN920

You just knew they were seeking a pay rise?---Again, why else would you go through an exercise unless you were going to make money out of it.

**** REGAN WAYNE SAWATZKI XXN MR MORRISON
PN921

So when did you become aware that they were seeking a pay rise because if
you - - - ?---I've only surmised that. No-one's actually said to me that they were going to get paid.

PN922

When did you surmise it?---I would say it was probably around step 2 when we were putting the skills profile together.

PN923

You surmised it because of - what hints led you to surmise this?---Well, I did go and read the metal industry - sorry, Metal Award.

PN924

And that led you to surmise it?---Yes.

PN925

No discussions from the union or discussions with your workers, no feedback from upper management, it was simply because what you read in the award?

PN926

THE COMMISSIONER: Can we break up the questions?---Sorry?

PN927

Just there's a number of questions in that last statement.

PN928

MR MORRISON: I was just trying to establish what particular - - -

PN929

THE COMMISSIONER: Yes, that's right. There was just a series of questions.

PN930

MS FLYNN: And which one did you want him to answer.

PN931

MR MORRISON: I would like him to answer one question?---I believe I'm doing - answering your questions.

PN932

Did you make your summation that they wanted a pay rise from discussions with delegates?---No.

PN933

From discussions with employees?---No.

PN934

From seeing union fliers around the work sites?---No.

PN935

From instructions from management?---Initial summation, my initial summation wasn't from management.

PN936

So where was your initial summation from?---The Metal Industry Award.

**** REGAN WAYNE SAWATZKI XXN MR MORRISON
PN937

So you were just reading the award and you - - - ?---I have to do that quite often.

PN938

So you have come to the conclusion that the workers are seeking a pay rise as part of this classification exercise, is that correct?---Yes, that's at that stage, yes.

PN939

But you also knew at this stage that there was no pay rise in the offing?---Yes.

PN940

Did you share that with anyone?---Anyone else besides who?

PN941

Well, any of the employees?---No.

PN942

Did you say to them, well, you're going through this exercise but you know there's not going to be a pay rise at the end of it?---No.

PN943

So why were you going through this exercise if it was to a certain extent pointless?---Because my understanding was that we had to go through the exercise.

PN944

What was the - who told you you had to go through it?---In discussions with
Mr Syme and the other chief engineers that basically my understanding of it was
that we had to go through it as part of the Metal Industry Award.

PN945

So that was the only reason you and as far as your knowledge was, management were participating in this exercise, because you had to go through it because it was part of the Metals Industry Award, is that correct?---That's correct.

PN946

So what do you understand at this stage was the intent of the employees going through it?---To get a pay rise.

PN947

And it never occurred to you to put them straight?---No.

PN948

Do you know a Steve Smitty?---Yes, I do.

PN949

Steve Smith I mean. Do you know a Mr Field?---Yes, I do.

PN950

Do you know a Mr Sharmer?---Yes, I do.

PN951

What do they do?---Bobby Sharmer is a tradesman, Steve Field and Steve Smith are what we are loosely classifying as leading machine hands.

**** REGAN WAYNE SAWATZKI XXN MR MORRISON
PN952

Are they paid the shop rate for tradesmen?---No, they're not.

PN953

What are they paid?---Leading machine hand rate.

PN954

And how does that compare to the tradesman's rate, is it or more or less than a tradesman?---Less than a tradesman's rate.

PN955

How was it determined that they get paid less than a tradesman's rate?---They don't have trade qualifications.

PN956

So you would remember back to this award that you've read?---Yes.

PN957

What classification would apply to those gentlemen as distinct from the tradesman?---I don't know, we haven't put them through the classification process.

PN958

You accept that they could not become C10s, do you not?---That's correct.

PN959

Under the award?---Yes.

PN960

So they would be anywhere between C14 and C11?---Yes, they would.

PN961

Highly unlikely to be C14s, do you accept that? C14 is the training position?
---Yes.

PN962

So they would be somewhere at the - between C13, 12 or 11, is that correct?
---That's correct.

PN963

How is it determined whether a person is a C11 or a C12 or a C13 to your knowledge?---To my knowledge we don't have anyone that - - -

PN964

How is it determined that a person is a C11, a C12 or a C13?---We don't have a process for determining that.

PN965

How is it determined - - -

PN966

MS FLYNN: Well, I'm sorry, he's answered the question.

PN967

MR MORRISON: No, he's saying they don't determine it. I'm asking - - -

**** REGAN WAYNE SAWATZKI XXN MR MORRISON
PN968

MS FLYNN: Well, maybe you need to ask a different question.

PN969

MR MORRISON: The award determines a C13, a C12 or a C11 how?---It would be assessing them on their competencies.

PN970

And yet these gentlemen receive less than the C10 so they would receive a rate less than the tradesmen?---These aren't metal - they're not AMWU members.

PN971

It doesn't matter if they're AMWU members, they work under the Metals Award, do they not?---They're working as leading machine hands.

PN972

Which is under the Metals Award?---I don't believe it is.

PN973

How did the company decide what pay rate these gentlemen would receive?---The leading machine hand rate, basically they have skills that are above a standard trades assistant.

PN974

THE COMMISSIONER: Is that part of this particular dispute, that matter?

PN975

MR MORRISON: The company claims that - well, I won't go into submissions, Commissioner.

PN976

THE COMMISSIONER: All right. You can ask your questions.

PN977

MR MORRISON: It is relevant to the argument that we are having here.

PN978

THE COMMISSIONER: All right.

PN979

MR MORRISON: Commissioner, I just notice the time.

PN980

THE COMMISSIONER: We have got some latitude. My associate has spoken to the registrar so we've got through until 4.30.

PN981

MR MORRISON: Yes, thank you, Commissioner?---If you want me to expand on what these fellows are doing, after the equivalent to four years of trade type work they will be entitled to tradesmen's rights and that's what we're doing with these guys.

PN982

They would be paid as tradesmen?---After four years working in that particular field, yes. They would fall under being enabled to claim tradesman's rights.

**** REGAN WAYNE SAWATZKI XXN MR MORRISON
PN983

They would be assessed as tradesmen, would they?---I believe so, yes.

PN984

What process would assess them as tradesmen?---There's - I have documentation at work regarding the process that we need to go through but that includes four years on the job working in that field.

PN985

Sounds like an apprenticeship. They're not apprentices, are they?---No, they're not.

PN986

So are they acquiring transportable and competent skills?---I believe they are.

PN987

And you will then determine that they hold and use skills at such a level that they would reach the tradesman standard?---I believe so, yes.

PN988

So that would then put them under the Metals Award, would it not?---Eventually, yes, it would.

PN989

Well, they'd be under the Metals Award now if they're working towards
becoming - - - ?---Well, every employee we have uses skills that would probably come somewhere under the Metals Award.

PN990

But to become a tradesman you yourself have recognised that you have to have a trade certificate?---Yes.

PN991

And these men who are working towards a trades certificate have to be working under the Metals Award?---Yes. I believe these fellows would probably be entitled to craft man certificate.

PN992

So how were their wages determined when they started?---Basically had a look at a rate that was above a trades assistant's rate and somewhere between the tradesman's rate.

PN993

But you've got actually no knowledge on how they were determined?---How the original - - -

PN994

Wage rate for those gentlemen was determined?---No, no.

PN995

So you've never heard that in fact they receive 88 per cent of the tradesman's rate?---No.

**** REGAN WAYNE SAWATZKI XXN MR MORRISON
PN996

Does that figure 88 per cent ring any bells with you?---No, it doesn't.

PN997

THE COMMISSIONER: Mr Morrison, are they on that list at AMWU12, those employees you refer to?

PN998

MR MORRISON: No, I would doubt it very much.

PN999

THE COMMISSIONER: Well, I don't want to go into it but you know where
I'm - - -

PN1000

MR MORRISON: Yes, I know where you're coming from.

PN1001

THE COMMISSIONER: I don't want to confirm.

PN1002

MR MORRISON: No, the issue - - -

PN1003

THE COMMISSIONER: No, I don't want to hear the issue. I just don't have specifics so we'll deal with that later.

PN1004

MR MORRISON: Certainly.

PN1005

Now, just finishing off questions to you, after the workers were assessed as having various competencies are you aware of what the final outcome of that assessment was?---Yes, I am.

PN1006

And you're aware that there has been agitation at the site for the workers to be classified as those various classifications?---I'm not aware of agitation at Broadwater site.

PN1007

No worker has come to you, no delegate has come to you and said I want to know how my assessment went?---I don't recall anyone coming and seeing me personally.

PN1008

So they went through the process?---Yes.

PN1009

Were assessed and yet no-one has subsequently come to you and said how did I go or what was the outcome?---I believe I went and seen fellows after the assessment and after we had verified the assessment of the employees at Broadwater and found that there were some blokes there that had not ticked appropriate boxes on skills which I thought they held. I went and spoke to them about that and we made the changes to their assessment, but I don't recall any person coming and seeing me after that about - I actually approached them. I don't recall anyone coming to see me about what their outcome was.

**** REGAN WAYNE SAWATZKI XXN MR MORRISON
PN1010

Do you have any recollection of anyone coming to you and saying look, I've been assessed as a C9, I believe I’m entitled to a pay rise as a result of being a C9?
---No, I don't.

PN1011

No-one has said that to you?---No, they haven't.

PN1012

You're aware that the unions have been agitating for that outcome, are you not?
---That's why I'm sitting here.

PN1013

Well, you're sitting there because they wanted you to be there, but anyway.

PN1014

MS FLYNN: Is that a statement or a question?

PN1015

MR MORRISON: No, it was a reply.

PN1016

MS FLYNN: Okay.

PN1017

MR MORRISON: So if I could then take you back to your statement. If I could take you to paragraph 19. Paragraph 19 you talk about in your last sentence:

PN1018

The skills audit simply showed that AMWU members held and use skills at the C8 level.

PN1019

That's correct?---Yes.

PN1020

Does the company require the employees to have the skills of a C8 to do their job?---If they're holding and using the skill, yes.

PN1021

So if they are competent at the C8 level there's a requirement from the company to perform C8 tasks, is that correct?---Yes.

PN1022

But the company does not pay them C8 rates to do that task, does it?---Not as a C8 rate, no.

PN1023

No, it pays them the general tradesman rate, does it not?---No, the fellow who's currently - who was assessed as being C8 is getting paid above a tradesman's rate.

PN1024

That's because he has an allowance, I believe, and he's now doing a different job?
---That's correct.

**** REGAN WAYNE SAWATZKI XXN MR MORRISON
PN1025

But we'll make it easier, we'll go to a C9. Do your C9s do exactly the same work and bring exactly the same skills as the C10s?---I believe the fellows who had the C9 outcomes may have been our pressure welders so they were paid a higher rate anyway.

PN1026

No, they're paid an award allowance?---Yes.

PN1027

Isn't that correct?---They're paid an allowance, yes.

PN1028

But their actual rate of pay is the same as those assessed as a C10, isn't that correct, those assessed as C10?---No, the allowance is wrapped up in their hourly rate.

PN1029

But it is an allowance, it's not part of their salary, it's an allowance. It's above the wage rates?---I'm not sure. I'm not sure of the specifics on how - - -

PN1030

Do you require the C9s to do any work different to what the C10s do?---There would be a slight variation, yes. If they've got C9 outcome that means that they have skills that the C10 fellows don't have.

PN1031

So you require a higher standard or a more competent standard of work from those?---If they hold the relevant qualifications, yes.

PN1032

But you don't reward them, do you?---We pay them allowance, as you just said.

PN1033

You pay them a pressure welding allowance?---Yes.

PN1034

But you're required to pay them pressure welding allowance. You don't pay them an assessment, do you? You don't pay them 105 per cent of the tradesman rate, do you?---The tradesman's rates that's specified in the Metals Award or the tradesman's rate that we pay?

PN1035

The tradesman's rate that you pay, you don't pay them 105 per cent?---The shop rate, the shop rate?

PN1036

The shop rate?---The shop rate is above the award rate anyway.

PN1037

Yes, I know that. But you don't pay them 105 per cent of the shop rate for those that are assessed as C9, do you?---I believe we don't. I haven't calculated percentages.

**** REGAN WAYNE SAWATZKI XXN MR MORRISON
PN1038

But you do expect from them a higher standard of work because of their skills?
---If they're doing pressure welding I would expect a higher standard, yes.

PN1039

Apart from the pressure welding?---They're the only ones that I know of that it would make a C9 classification, that I recall. There may be others.

PN1040

THE COMMISSIONER: So you're saying the only different skill for C9 employees is pressure welding?---It depends on the - I'm not sure what the outcomes were. I can't remember the specific people. Currently the difference between rates is the pressure welders be paid pressure welding allowance. That differentiates then from a fitter and a fitter's rate and the standard welder's rate.

PN1041

Mr Morrison.

PN1042

MR MORRISON: Thank you. They also give you a fair amount of flexibility. You get a fair amount of flexibility from your C9 employees, don't you, with regard to mixing between the various roles of the trades?---The allowance we pay our pressure welders they're paid all the time. They're not only just paid that when they're pressure welding. The percentage of time that they're actually pressure welding would be only a small percentage of the time that they're at work.

PN1043

But the rest of the time the work that they are doing when they're not pressure welding, they do other work, do they not?---Just general welding, yes.

PN1044

And they work to a higher standard because of their skills than the other tradesmen who are assessed as a C9?---Not necessarily, because a pressure welder usually has to weld a bit slower and steady than a standard - - -

PN1045

When they're not doing that welding, pressure welding?---Yes, yes.

PN1046

Do they not work at the same work as the other tradesmen?---Yes, they do.

PN1047

But because of their skills which has been assessed at the C9 level, do they not perform at a higher standard than the tradesmen because they are after all - - - ?
---They're only time they're expected to perform at a higher standard is when they're pressure welding.

PN1048

But they all the time perform at a higher standard, do they not, because they have an assessed higher skill level?---I believe pressure welders don't have the ability to turn off the quality of weld. Because they are specialised in pressure work they have to lay down a good weld all the time. If they fall into the habit of just general welding they would find it extremely difficult to get their skill level back up.

**** REGAN WAYNE SAWATZKI XXN MR MORRISON
PN1049

They perform a superior job, don't they?---Yes, at a slower rate.

PN1050

But they still perform a superior job?---Yes, at a slower rate.

PN1051

And lastly, are you aware of the work that is performed at Harwood and Condong mills apart from - because you're at Broadwater, isn't that correct?---That's correct.

PN1052

You're aware of Harwood and Condong mills, the work that is performed there?
---I'm fairly familiar with Harwood as I'd worked there but Condong I haven't specifically worked there so I can't comment too much on Condong.

PN1053

But would you say that basically the work is the same, that the issues are the same?---I think they're vastly different.

PN1054

Are they? How are they vastly different?---At Harwood there is loosely termed the fitter/welder and also - - -

PN1055

And how is that different from your site?---We have - we're slowly moving over to fitter/welders. That's where blokes are able to do either. We still have specialist welders. It's more being able to cross skill and - - -

PN1056

You're aim is to get the same flexibility that they have at Harwood, is that correct?---I would hope so, yes.

PN1057

And what steps have you taken to achieve that flexibility?---We're allowing the fellows who tends to be the fitters to do welding.

PN1058

And do you intend to make any reward for the employees if they move towards this flexible working environment?---I think their reward is their pay packet they take home each week.

PN1059

So you don't see there's any need to reward them?---Job satisfaction is a reward as well. There's more reward than just monetary reward.

PN1060

Especially working in the sugar mills, isn't there? All right. No further questions, thanks.

PN1061

THE COMMISSIONER: Thank you very much. Thank you. Ms Flynn.

**** REGAN WAYNE SAWATZKI XXN MR MORRISON
PN1062

MS FLYNN: Thank you, Commissioner.

<RE-EXAMINATION BY MS FLYNN [4.12PM]

PN1063

MS FLYNN: Mr Sawatzki, can I just hand you a copy of the 2003 agreement. You were asked a number of questions about I think a leading machine hand, do you remember that? Can I take you to pages 5 of 9 and 6 of 9 of the agreement, the position that Mr Morrison was asking you about the machinist, can you just look, on those two pages where the different positions are obviously there, can you just point us to what position is being - what's being referred to?---About three quarters of the way down the page, leading machine hand - - -

PN1064

Sorry, which page are you looking at?---Sorry, 5 of 9.

PN1065

Yes?---Yes, clause 9 I think it is, leading machine hand, slash and crushing season including rigger with WorkCover rigger certificate.

PN1066

Was that the only position that you were being asked questions about by
Mr Morrison or can you see was there any other position you were being asked questions about in relation to the machinists?---I believe that's the only one because that's the only one that we're paying our fellows at the moment.

PN1067

And can you just identify for us at the top of that page it refers to an award, can you read out what award that says?---Employee classification under New South Wales, Sugar Industry AWU Award 1999.

PN1068

Thank you. No further questions.

PN1069

THE COMMISSIONER: Thank you. Thank you, Mr Sawatzki, for giving your evidence. You're free to go. If you could leave any documents that you've been provided with there, thank you.

<THE WITNESS WITHDREW [4.14PM]

PN1070

THE COMMISSIONER: All right. Well, Mr Syme's evidence will have to be tomorrow morning. There's no difficulty with that, is there?

PN1071

MR MORRISON: No.

PN1072

THE COMMISSIONER: And then that would complete the evidence tomorrow at some stage. All right. I'm not sure, would you like, my associate can check if you want to see if you - we'll go off the record.

<NO FURTHER PROCEEDINGS RECORDED

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 AMWU SUBMISSION WITH 12 ATTACHMENTS PN100
STEVE MURPHY, CALLED PN104
EXAMINATION-IN-CHIEF BY MR MORRISON PN104
STEVE MURPHY, AFFIRMED PN113
EXAMINATION-IN-CHIEF BY MR MORRISON, CONTINUING PN113
EXHIBIT #2 STATEMENT OF STEVE MURPHY PN113
CROSS-EXAMINATION BY MS FLYNN PN145
RE-EXAMINATION BY MR MORRISON PN290
THE WITNESS WITHDREW PN311
KEN CRICHTON, SWORN PN312
EXAMINATION-IN-CHIEF BY MR MORRISON PN312
RICHARD JEFFREY ACKERS, SWORN PN325
EXAMINATION-IN-CHIEF BY MR MORRISON PN325
EXHIBIT #3 STATEMENT OF RICHARD ACKERS PN345
CROSS-EXAMINATION BY MS FLYNN PN359
RE-EXAMINATION BY MR MORRISON PN393
FURTHER CROSS-EXAMINATION BY MS FLYNN PN447
THE WITNESS WITHDREW PN465
DENNIS NOEL, SWORN PN472
EXAMINATION-IN-CHIEF BY MR MORRISON PN473
EXHIBIT #4 STATEMENT OF MR NOEL PN481
CROSS-EXAMINATION BY MS FLYNN PN515
RE-EXAMINATION BY MR MORRISON PN729
THE WITNESS WITHDREW PN773
REGAN WAYNE SAWATZKI, SWORN PN783
EXAMINATION-IN-CHIEF BY MS FLYNN PN783
EXHIBIT #5 STATEMENT OF MR SAWATZKI PN794
CROSS-EXAMINATION BY MR MORRISON PN798
RE-EXAMINATION BY MS FLYNN PN1062
THE WITNESS WITHDREW PN1069